corruption occurs in preconceived acts, in bribery, in receiving benefits not established in our functions for doing our job, but corruption is also incompetence, inefficiency, omission of functions, laziness, letting things go by, taking items from our office, school, simulating work, plagiarizing, copying, lying, hiding information, bureaucratizing procedures, not being trained for our work and much more. As it can be seen, corruption goes beyond the traffic bribery or corrupt politicians. It is now more transparent to understand that corruption is present on a daily basis and that corruption is all of us, since we have all at some point committed acts of corruption, i.e., we have acted contrary to the culture of legality (Taméz, 2017).
The daily and heroic struggle of the Armed Forces and the National Police deserves our recognition, however, it is not enough if we intend to address the origin of the problem that has led us to the deplorable situation in which we find ourselves today, I am referring to corruption. For the latter, we need to work in parallel, together, permanently and at all levels, in education. With special emphasis on education in the culture of legality. This is a neuralgic remedy to prevent and combat the “metastasis” of private and public corruption -in that order- that Ecuador is experiencing.
Corruption spreads easily in systems with weak democracies, lacking institutionalism, values, civic values, ethics, duties of voluntary compliance with rules (legal and social coexistence), citizenship, where there is a sense of impunity, where distrust in the system and in others stands out.
It is no coincidence that countries with high corruption perception indexes are the most likely to suffer the onslaught of organized crime and drug trafficking. Ecuador, according to the Corruption Perception Index published by Transparency International a few days ago, related to the year 2023, reaches a score of 34 /100 points, being 0 very corrupt and 100 very low corruption. This score places us in position 115 of the 180 countries considered in the measurement based on their levels of perception of corruption in the public sector. The situation has worsened if we compare these figures with those concerning the year 2022, at that time Ecuador reached a score of 36/100 and was in position 101. Surely the figures would be more critical if the index contemplated as a parameter of measurement the perception of corruption in the private sector.
A similar scenario is evident in several Latin American countries, where the implementation of the culture of legality has been worked on and focused, also known as, to avoid diverting this analysis in questions of a legal nature, the "culture of lawfulness". ius theoretical, such as culture of institutional loyalty, civic culture or constitutional culture.
Corruption, contrary to popular belief, is not confined to the “public” sphere; on the contrary, it emerges from the “private” sphere and ends up transcending into the public sphere. This is why it is necessary to work on that habitus, to use the terminology of the sociologist Pierre Bourdieu, concerning the private life of individuals. All the more so if it is an evil that, when transposed to the public sphere, threatens to generate lacerating effects on the system, on institutions, on the rule of law and on society as a whole. The latter because, beyond the impact on the institutional framework, its main and most pernicious effect is to break the spirit of the citizens, especially the youth. It not only fosters distrust in the State, but also in others, an aspect that should alarm us, since an individualistic culture has been configured.
All this ends up establishing in society feelings of defraud, despondency, institutional fatalism, which have led to position among society the convincing discourse of “failed State and/or failed law”. This discourse, which certainly has elements of support, mainly in the historical state omissions in this and other fields, is based on the false premise that the responsibility in the prevention and fight against corruption corresponds exclusively to the State. This leaves aside the fact that society as a whole, family, academia, business, media, among other actors, also play a role, surely the most decisive in the fight against corruption. On the other hand, this fatalistic position, far from contributing, makes invisible all the positive state actions or strategies aimed at fighting corruption, which certainly exist.
This being so, the discourse of “failed rule of law”, beyond being understandable, brings with it, among other aspects, the erosion of the rule of law, the disdain for our law, for our institutions, for our authorities. And I refer to “our”, because we usually assume a priori that in “other” countries or systems the reality is different. What is certain is that corruption is a transnational disease, evident to a greater or lesser degree in all countries of the world. The important thing will be to evaluate, based on a responsible comparative exercise, what actions have been taken in other contexts to deal with this evil. That is why an unpatriotic, symptomatic position, justified in perceptions or even personal experiences, that advocates perfection and example of “other countries”, to the detriment of our own, not only lacks support, but is useless to face this disease and build citizen culture.
Instead of causing more wear and tear, what we need is to strengthen the values that make up our social contract and in the event that it is assumed to be non-existent due to the onslaught of corruption, organized crime and drug trafficking, what better scenario to rebuild it and sign a new one. Otherwise, the positioning of this discourse will only translate into a triumph for those criminal organizations, criminals or irregular groups that seek to take control of the State. That is why our attitude must be different, leaving aside fatalism, spite and fight together, despite the seriousness of the situation, in the treatment of this evil that destroys trust, values, civism and consequently society.
Corruption, as I mentioned, has shaped an individualistic culture, characterized by disregard for respect for the rights of others, which emphasizes the importance of subjective rights, but not of the obligations we assume as citizens. This is why corruption must be assumed as what it is, an endemic evil, a cultural problem that, given its nature, must be treated with remedies of the same type. Karla Lara, a Mexican professor linked to the culture of legality project, refers to corruption as “a cultural disease as serious as the lack of reading among the population or the lack of democratic participation, as terrible as obesity or the increase in drug consumption”. In a similar vein, Oscar Taméz, another of the Mexican academics involved in this project, argues that corruption has reached such levels that “it has become part of the generational DNA”.
Faced with this critical state of affairs, the culture of legality emerges, as Lara rightly points out, as “the antonym of corruption, it is more than a fashion, it represents the need to modify actions, customs, ways of life”. In terms of Isabel Wences and José María Sauca, participants and promoters of the culture of legality, it is a “project and movement” that crosses several countries in the world, among them, with great strength, several Latin American countries that have gone through and/or are going through similar problems to those currently faced by Ecuador, such as Mexico, Colombia, Peru, Guatemala, among others. I must specify at this point that Ecuador has not been alien to the discussion on the culture of legality, several national academics have participated in this project-movement in the past, but not from the particular and unprecedented circumstances that the country is currently going through. In this sense, resuming and deepening this discussion will be substantial to build a culture of legality for Ecuador.
In this regard, Diego López Medina, a renowned Colombian professor, argues that there are many reasons for locating the project in Latin America: “These countries have suffered very serious organized crime phenomena generally related to drug trafficking; the levels of economic, social and political informality severely weaken the effectiveness of legal rules; there has even been talk of the generation of widespread spaces of “narco-culture” in which the norms and values officially accepted by the State and the segments of society that remain loyal to it are challenged; It is even suspected that the State has been captured by these projects to the point that its law has become a façade for rent-seeking and exploitation that benefit certain groups with no apparent sensitivity to the construction of the public sphere”.
This culture of legality therefore encompasses various ethical, political, social, legal and administrative dimensions. It thus translates into a preventive tool, which does not detract from its usefulness in the fight against entrenched corruption, which seeks to encompass both dimensions of corruption, private and public. That is why among its main objectives is the strengthening of democracy through the promotion and internalization of reasons and moral values, but not only in the citizenship, but also in power. In the latter case, they will be substantial assumptions to be met by all authorities, not only to assume a function and administer, but mainly to demand obedience.
As Wences and Sauca argue, the culture of legality is committed to “an ethical impulse that generates political trust and practices based on principles of integrity, transparency, responsibility, accountability, all within the framework of good governance and good government, of the ethics of service. It aims to reinforce habits and generate convictions. Voluntary compliance with the rules by citizens, not for fear of punishment, not for the consequence, but for a duty of equality and coexistence. As opposed to citizens who do not comply with the basic rules of coexistence or do so exclusively for fear of being detected and sanctioned, the culture of legality is a social movement that seeks that citizens manage to internalize these normative patterns of coexistence. This would reduce the levels of social non-compliance, which result in acts of corruption and state surveillance costs”.
We must assume that behind the norms there are socially shared values; if they are violated or disobeyed, a lethal impact is generated for democracy and for society as a whole. It is, therefore, a movement that promotes civic behavior based on the social cohesion generated by the principles and values established, for example, in a Constitution, a norm that, at least from the formal point of view and independently of political interpretations, constitutes the axis, the root of the system. This norm, insofar as it is the product of social consensus and whose property belongs to the people, must be respected regardless of whether or not we agree with its content.
I must specify that this position does not advocate the immutability of the Constitution over time, nor does it claim that people should submit to it indefinitely; on the contrary, I am convinced that the Constitution must follow the society of the day. This implies that, if justified, the fundamental norm should be reformed or even replaced. However, as long as this does not happen, the constitutional norm in force must be respected and complied with. This is the way in which a constitutional culture is built in society.
This attitude should be replicated with the rest of the norms that make up the legal system, regardless of their rank, but also and fundamentally with respect to those related to individual behavior within a social community. This is why the culture of legality does not promote the promulgation of more norms, be they legal or otherwise, but focuses on their effectiveness, on their due compliance. This surely explains why corruption, the fight against organized crime and the fight against other serious problems faced by society have not been solved with the mere issuance of legal rules, be they constitutional, legislative, jurisprudential or of any other legal rank (normative fetishism). What is fundamental, beyond focusing exclusively on permanent modifications to the system of legal rules, will be to build or rebuild a civic culture of respect for existing regulations, internalize values and reach levels of voluntary compliance with the rules, not only legal rules, but even the most minimal rules of social coexistence. We must peacefully rebuke and question those who transgress these rules, not applaud, admire or idolize them.
In short, we must be aware of the harmful effects generated by “viveza criolla”, such as jumping the line, disrespecting traffic rules, cheating, lying, using parking spaces assigned for people with disabilities, pregnant women, among others. As stated by Antanas Mockus, one of the main promoters of the culture of legality, the “vivezas criollas generate the inefficiency of the system, provoke social conflict, allocation of state budget for surveillance. The worst thing is that these types of actions always find justifications, such as: “the anguish of the moment”, “I'm very late”, “I'm late for class or work”, “the fine is very high”, “but the traffic light was only yellow”, “the policeman only noticed me”, “nobody was coming down the road”, among others”.
This is how corruption is configured, from everyday acts that seem inconsequential, which occur very often in the private sphere and end up transcending into the public sphere. This explains Taméz's statement: “corruption is a gene that is transmitted through generations”. This implies, consequently, the need to fight it from all spheres, to treat that habitus The private sector that has a direct impact on what happens in the system. One way to do this is to highlight, in a focused manner in the corresponding learning area, the relevance of the culture of legality, civics and ethics, both in daily behavior and in decision making. In order to achieve a substantial, profound change, the culture of legality must be part of the educational formation of children and young people, without neglecting that higher education, regardless of the area of knowledge, has the obligation to reinforce these values. In short, it is a matter of promoting a multiplier effect in society through education.
We usually expect the State to take care of this evil, since it is certainly one of its constitutional duties, but we must assume that we must all undertake this battle on a daily basis, from each of our areas, from each of our acts or omissions, from our example to others, to our children, to our relatives and friends, it will be the only way to stop the spread of corruption.
In the face of the crisis that Ecuador is going through, the last thing that should happen is that we lose hope. Education in the culture of legality/citizenship is our most powerful shield-weapon to fight against this endemic evil. From the State, the family, schools, colleges, universities, media, chambers (I cite the emulable example of the campaign “honesty Creole” led by the Chamber of Commerce of Quito), private sector, we all have the civic responsibility to work together. Surely many will point out that this is a long-term remedy and therefore will downplay its importance. The answer to these types of questions and positions is YES, because such a complex problem, of a cultural, historical and generational nature, cannot be treated with placebos. If we do not take the firm decision to start with the analysis, dissemination and citizen empowerment of the culture of legality/citizenship, nothing will change in society.
For these reasons, the announcement of the Minister of Government, Monica Palencia, who has indicated that the Ministries of Government, Culture and Education will work on the construction-recovery of a culture of legality, is commendable. We hope that this initiative can be translated, in the short term, into a public policy, which should cover the entire educational system, with special emphasis on the most needy sectors, where there is not necessarily a family to turn to. For this purpose, the work of local governments, both in the replication and in the insertion of campaigns for a culture of legality that respond to the needs of their inhabitants, will be essential.
All these efforts will be substantial, not only to prevent and fight against corruption and organized crime, but fundamentally for the reconstruction of civic and citizen culture, so much in decline in our country. In the midst of such adverse circumstances as those experienced by Ecuador, the culture of legality becomes a necessary tool to regain citizen confidence and vindicate the love for the country.
Director of the UEES Graduate School of Law.
Doctor in Law, PhD, Master in Law, mention in Constitutional Law. Superior Diploma in Law with mention in Constitutional Law. His career includes technical-constitutional advisory positions in public and private entities. Among them the former Constitutional Tribunal and Constitutional Court of Ecuador. Research professor at several international universities. Distinguished Senior Research Fellow at the Constitutional Studies Program, University of Texas at Austin. Founding member and member of the Executive Committee of ICON-S, Ecuador chapter. Board Member of BeLatin, Initiative of the University of California, Berkeley, for Latin America. Co-director of the Legal Thought and Constitutional Theory Series. Editorial Derecho Global - Mexico.
Author of books and articles in national and international indexed journals. His research interests focus on constitutional law, constitutional procedural law, comparative law, legal theory and legal transplants. Arbitrator of the Arbitration and Mediation Center UEES. Currently director and full time professor of the UEES Graduate School of Law.
Universidad Espíritu Santo (UEES), began its academic activities in 1994 as a private, self-financed, non-profit institution. Its spirit of commitment and constant innovation are present in the quality of the service it offers to its community.
Excellent initiative to bring this concept of the culture of legality.
I hope to be there on Friday, March 8, at the call to society to hear the proposal.
Congratulations!
Excellent doctor and what an important contribution to change our society. This work invites us to reflect at home.
Excellent initiative, undoubtedly the change we long to see in our society begins with each of our small honest actions. Ecuador is going through a moment in which breaking the rules is the new normal, hence the importance of strengthening, supporting and replicating initiatives like this one to rescue ethics and values in society.
Congratulations for leading the best project in the country. We are all obliged to participate in the face of this terrible pandemic.