The law and its effects in socially ostracized localities in the light of discrimination
and protection against it
Pavel Uhl
To have certain rights is a social phenomenon comprising of a structure of specific standards
that are specific in relation to other systemic standards. We understand standards as a certain expected
form of conduct. There exist generally recognized forms of conduct on the part of socially structured
group of persons (e.g., morals), its special-interest segment (e.g., ethics) or social class in power
(protocol), or the economy (the code of social behavior, business manners, etc.). Law is specific in that
it represents diffusion of those systems of standards that are, for one reason or another, indispensable
for the functionality of the society and are therefore defined and enforced as such. In relation to
another system of standards, it represents a quasi-normative minimum. In relation to moral, so often
compared to law, as a competitive system of standards, law is commonly regarded as the minimum of
morality. This does not mean that law should be viewed as having minimum morality, rather, as
defining the lowest standard of morality possible. For the sake of comparison, let us present an
example: from the perspective of morality (morals), infidelity between partners is normally considered
immoral, but law does not attach any valuation symbol to this phenomenon, transposing it into the
sphere of neutrality and therefore permissible conduct, instead. The same applies to other conduct,
mostly in the tenuous area of social relations (promiscuity, etc.). By the same token, this also applies to
other normative systems, such as ethics (the law prohibits doctors from harming patients or refusing
treatment, but it does not obligate them to be polite). The difference between law and non-legal
normative systems is one of its distinctive characteristics.
Law as a social phenomenon goes hand in hand with the existence of statehood or, as the case
may be, the existence of a complex social structure. In less sophisticated social systems, where the
enforced moral and ethical codices cannot be separated from one another, one may hardly speak of the
law as such, because it is still a matter of morals and ethics, as the law is like a younger sibling yet to
emancipated from them. In the context of these contemplations, let us derive from the premise that
the law and the state are inter-dependent phenomena, unable to exist alone. Another essential attribute
of law is its enforceability using power that, as rule, is exercised, regulated, and controlled by the state.
For the purposes of our contemplations on law, let us view law as a phenomenon that has
certain values on the input and other values on the output moment (in relation to time). We will
evaluate law in the light of these values. The objective of law is to maintain the society in operation
and streamline the behavior of individuals in it, whereby the streamlining may involve even changes in
the behavior of the individuals to the extent of the limits of otherwise admissible conduct. For
example, even if an individual does not create any tradable values but makes an effort to create
mechanisms leading towards that aim, it is considered admissible under the law, as it involves
transposition of certain moral values. The input values of the law as a phenomenon are the intentions
and objectives of the lawmakers1. These input values frequently interact with morals and other, often
very deformed extralegal values. The output values are the effects of the law. Comparison of these
two values enables us to define one of the dimensions of the law’s effectiveness. The law is a relatively
complex phenomenon consisting mot merely from legal codes and decrees, but also from decisionmaking, i.e., activities of many of the entities that have a significant influence on the final form of the
law.
Socially ostracized localities, be it territorial or relation-based enclaves of persons who are
generally isolated – in terms of the economy, society, and space – constitutes a phenomenon that is well
described in other relatively good texts of this miscellany. In terms of the law, the existence of such
localities is an occurrence,
a)
from the perspective of existence – non-definable
(reference frame)
– compliant with the law
(reference frame)
b)
from the perspective of development – undesirable
(input)
1
Lawmakers is a term that applies to multiple subjects, e.g., the parliament, regional councils, local councils, judicial
authorities and, to a certain extent, even the government, the ministries, administrative authorities, etc.
c)
from the perspective of effect – provoked
(output)
This seemingly paradoxical situation is accountable to several circumstances. The law does not
know or define the existence of a social ghetto, hence it does not know the limits of what is and what
is not to be considered/defined as a ghetto or otherwise, so that if such a socially ostracized locality
exists, the law does not deem its very existence to be an extra-legal state of affairs. On the other hand,
there exists a general legal obligation to deal such a state of affairs, without exactly defining or averting
it; respectively, there exists the obligation to regulate the direction in which this group of legal
addressees should develop. For instance, international and constitutional documents stipulate clearly
the right to well-rounded development and creation of the conditions for it. On the level of lower legal
standards this right is coded in the legislation on municipalities, where Section 2(2) stipulates that the
municipality shall support comprehensive development of its territory and the needs of its citizens; while fulfilling these
tasks, it shall protect public interests. It is evident that the lawmakers’ primary objective was to define the
obligation to support well-rounded development, i.e., second to protection of public interests. There
are many similar legal provisions concerning issues related to an active housing policy, leisure activities,
the right for work, social and legal protection of children, etc. The law thus clearly defines the
framework for streamlining state, regional, and municipal policies, whereby this framework indicates a
direction that is exactly the opposite of the existence of socially ostracized localities.
In practice, however, the law provides – at least the way it is exercised, contrary to its very
purpose – an effective mechanism how to create ghettos. In many cases, of course, it is not the law
proper but the way in which it is exercised, even if such an exercise of the law is contradictory to the
law. Nevertheless, we have to focus on this problem, because facticity is one of the important aspects
of the law and one of he factors of its effectiveness. In essence, we may speak of three deformation
factors:
1)
2)
3)
4)
bureaucratic deformation of the law
majority-oriented application of the law
majority-oriented construction of the law
combined defects – defective allocation of resources causing discrimination of individuals
Ad 1)
Using an idiom taken from the English language, it can be said about the law, like about nearly
everything, save a few natural sciences (nuclear physics, etc.), "it is all in the people.” This idiom is
twice as fitting to application of the law. Today, state, regional, municipal, or any other public policies
are subject to relatively strict concentration on and effort for maximum efficiency, which generates
several unintentional consequences. The individual segments of public policies are detached from one
another in the absence of a meaningful coordination of functions, as indispensable as it may be.
Another dangerous occurrence is routinization and under-estimation of the social awareness and
conscience of individual administrative authorities. For the sake of clarification, let me present a few
examples.
Social and Legal Protection of Children
Social and legal protection of children is one of the activities of the state that is supposed to
further the interests of the child in the best sense of the word. The basic legislative source (reference
frame) for the activities of the relevant specialized authorities is the Convention on the Rights of the
Child. The most important procedural document is the Law on Social and Legal Protection of
Children. In practice, the activities of the authorities specialized in social and legal protection of
children is often deformed and transformed to controlling activities that border on repression. The
original intention of the undoubtedly wise lawmakers was to create an institutional network for
supporting children and their caretakers. The original function has, however, in many cases been lost
allowing the authorities to limit their activities to controlling and penalizing, thus turning the children
into virtual hostages of the state in relation to their parents. This leads causes families, i.e., the
recipients of “caretaking” to make maximum effort eliminate or avert the attention of such authorities.
The consequence is increased latency of the occurrences that these institutions are supposed to prevent
and furthermore resignation on the state’s social services, presumed or actual, by their addressees
(recipients). The same social workers often conduct investigations of the living minimum conditions
and reporting. Eligible applicants therefore do not even file their claim so as not to attract their
attention. Thus, a family that could potentially qualify for social and legal services on account of
genuine need for such services, remains in voluntary isolation to avoid the possibility of problems.
This occurrence has a significant effect in terms of isolation, both socially (the family socializes only
with people from the ghetto, because they have a similar experience and do not pose danger in the
sense of indiscretion when dealing with state authorities) and financially (the family does not ask for
benefits and is therefore poorer). All in all, the functionality of the state’s authorities for social and
legal protection of children therefore has, in many cases, an ostracizing effect. Although unintentional,
the result is gross under-estimation of the emotions, qualifications, and finances involved in the whole
system, causing the social workers’ activities to become routinized and detached from their original
purpose.
A model example of such an approach is a family living in poverty. According to dispositions
provided by the law, this family should benefit, as a client, from the basic network of social services,
state social care, and last but not the least receive support from authorities specializing in social and
legal protection of children, which should endeavor to eliminate potential risks to the children, so that
they would suffer from the family’s poverty as little as possible, through pressing for maximum
exploitation of state subsidized and state-operated institutions, etc. The consequence of bureaucratic
deformation is fear of social workers whose activities are limited to penalizing and controlling2. Such a
family will, of course, put up with as much poverty as bearable, in order not to draw the social workers’
attention. The family keeps contacts with administrative authorities to the minimum, thus significantly
limiting is opportunities to obtain assistance from the state. In the end, the family is far more prone to
occurrences that the state is trying to curb. Although poverty is no reproach, it is statistically a risk
factor.
Housing Policy
In the Czech Republic underwent a so-called communalization of the housing fund, in the form
of transferring the existing housing fund valued at tens to thousands billion crowns into the ownership
of the relevant local municipalities. Simultaneously, municipalities assumed the obligation to perform
certain publicly declared roles that are part of the housing policy resort, supported also by concrete laws
on municipalities. These legal provisions stipulate the state’s – and by extension the municipalities’ –
obligation to provide housing to the needy, in compliance with international laws. Nevertheless, the
concept of independent competence of municipalities, including implementation of housing policies,
does not appear to be perfectly ensured. Municipalities try hard, in the better case scenario, to satisfy
the needs of the middle and upper middle classes of the population; in the worse case scenario, they
privatize the housing fund (many times completely); and, in the worst case scenario, they handle the
privatization process in a manner that has the unbiased observer wonder whether “corruption” or
“craziness” or the like could be the name of the game. With a little exaggeration, we may state that
there exists no municipality with a well structured housing policy effectively addressing above all the
problems of the most needy, despite the fact that the initial objective of communalizing the housing
fund had been based on this very need.
This phenomenon is accountable primarily to excessively strong linkage between local decisionmaking and local interests, which leads to disregard for the interests of social minorities. Their
protection would be better ensured, if the relationship between functionaries and recipients were more
abstract and professionalized. Concrete housing policies frequently lead to agglomeration of financially
weak citizens in certain territorially limited localities, using selective racial criteria (the social worker’s
2
Even today, as a practicing specialist dealing with clients, one may still encounter social workers in social services who
believe that their apparatus is only supposed to function as a controlling and law enforcement authority, a quasi
„children’s police“.
impressions). Housing policies thus become a form of active apartheid, whereby municipalities often
defend themselves using the argument of independent competences, which sounds as convincing as
using the argument of sovereignty in defense of a dictatorship. Another common argumentation point
is lack of funds, which can hardly withstand the reality of other municipal investments and profits from
housing fund privatization. This is due not as much as to the absence of subordination to central
political power, rather, it is due to the absence of public control, transparency, judicial investigation,
and basic political conscience (often lacking even on the central level).
More often than not, it is not possible to see any consistency or existence of rules in a concrete
application of a concrete policy, in a concrete location. Many citizens have housing problems, but final
solutions vary and links between deeds and consequences are often too vague. This state of affairs is
further aggravated by imbalanced judicature, which is sometimes too socially oriented, other times too
legally self-righteous, and yet other times just wishy-washy.
A model functional housing policy involves consistent efforts on the part of municipalities in
the area of law enforcement and maintenance of the housing fund to push socially weaker groups into
the category of low-cost housing. In order to maximize the effectiveness of their costs, municipalities
concentrate such persons in one locality, thus creating a ghetto. Social ghettos created to date therefore
territorialize and conserve this status quo, whereby their inhabitants as a rule adapt to these conditions
to the extent of losing the ambition to get out of the ghetto. This is one of the models or patterns.
The other model is even more problematic. It is based on a sequence of steps or measures on the part
of municipalities (often aided by private persons) leading to moving families to the outskirts of the
community. Families are then concentrated in other, usually smaller communities/villages that are
unable to prevent it. These ghettos emerge in places where housing is very cheap and inconvenient,
and the opportunities to escape such an environment are practically nil.
Employment Policy and Welfare Policy
The Czech Republic has a relatively complex system of welfare benefits: social, poverty,
unemployment benefits, etc. There also exists a structured policy for creating jobs. Both of these areas
are mutually linked, constantly reformed, and lately also partly merged. Like any policy largely
dependent on the state budget, this policy, too, is subject to ever tightening restrictions on allocations
and eligibility in individual cases. Constantly stricter controlling measures lead to two diverse effects:
increase latency of deceitful behavior, on the one hand, and decline of the dignity of the recipients, on
the other. This generates a need to cheat, even if only for the purpose of preserving one’s privacy that
is essential to each individual and collective entity. Such a deprivation of dignity makes social isolation
even more profound. This syndrome is often aggravated by insensitive approach on the part of
persons who enforce social policies.
It may be too abstract an idea, but if a social desegregation policy is to be successful, it
must create minimal prerequisites for setting up certain limits beyond which the dignity of the
recipients of welfare cannot be touched.
A model example of unintended consequences of the state’s controlling activities is the
following situation: The family is often moved from one place to another. The housing conditions are
usually of a sub-standard level and would not pass the building commission’s approval. The family
therefore cannot claim permanent residency in such a housing facility. Hence, the family therefore
registers elsewhere. Relations in the family change and officially registered relations often do not
correspond to reality. Rectifying the problem is often too complicated (denial of paternity on the
grounds of statute of limitations). If the family wants to apply for benefits, its application must be
formally flawless in terms of the particulars and conditions (place of residence, number of family
members, income). This is often virtually impossible, so that most applications do not reflect the
reality. The social security laws contain certain stimulation mechanisms that exert pressure on nonexisting, or rather different structure. The family then responds to the hostile and incomprehensible
environment by closing up. Any invasive forms of remedy are viewed as an assault on its dignity,
because it disrupts the existing social relations.
In essence, these occurrences can be defined as unintentional consequences of the bureaucratic
system’s functionality. Reality follows its own course and the effects of this scenario gradually steer the
family away from the intended purposes. This applies both on the general level, jeopardizing the
possibility of simplifying the administration of common causes, and on the concrete level, impeding the
possibility reaching concrete goals.
Ad 2)
In addition to unintentional consequences accountable to the conduct of the actors of the
bureaucratic system as a whole, the result is a specific deformation arising from the cultural
understanding of the legal system. The law is, like any structure based on values and standards, is a
well-researched cultural and anthropological prism, i.e., culture-specific patterns of behavior. The fact
that law is not neutral in terms of values is clearly evident. However, the law in the modern society
tries to minimize traditional cultural values, reducing them to the lowest common denominator of
values possible in certain geographical areas and asserting them as minimum standard. On the level of
concrete application, however, many culture-specific patterns of behavior prevail, especially on the part
of state officials in the first line, with several interesting consequences.
Wrong Interpretation of Facts and Their Transposition
When two people do the same thing, it is not necessarily the same thing. Cultural ignorance
often leads to misunderstandings. For example, in administrative proceedings, assessment of family
and social relations is subjectively difficult, especially for the representatives of state authorities. It is
particularly hard to penetrate relationships and social structures in a socially ostracized locality, because
it is subject to completely different family, power, and other relations3. Wrongly interpreted facts are
then transposed into decisions that are subsequently applied and enforced. The consequence is that the
standards thus created are quite different from the authors’ intentions to the extent of actual digression
from the law.
Those who then try to apply these legal standards commit a quasi-cultural incest, because they
apply their own cultural patterns in the context of law that is supposed to be neutral and reflect a
different social reality4. Application of the law to the inhabitants of socially ostracized localities thus
lacks the parameters of a legal state, such as foresight, legal security, proportionality, minimization of
law enforcement measures, etc. The occurrence of this only deepens the isolation of the
addressees/recipients of such measures. The fault lies in preferential application of one’s own cultural
patterns rather than legal provisions that are adequately and expressly descriptive. Abstraction from
one’s own cultural encumbrances could be a solution.
Let us use a model example of the application of law when assessing certain circumstances that
are generally defined as common household. In the light of certain legal provisions, it is relevant to
establish, whether certain persons share a common household or otherwise (e.g., for transfer of tenancy
rights to an apartment). The authorities that pass decisions in cases of a dispute apply their own
concept of a common household to a completely different social environment, where common
household is a much broader term than defined in the Civil Code. In certain cultures, the number of
persons living in a common household exceeds the limits of a nuclear family in a majority society. The
authority’s decision then does not reflect reality, as it contradicts to reality, because preference is given
to a cultural stereotype which intervenes in the decision-making process, suggesting “this is not
possible”“ (better scenario) or “even if this were possible, it is certainly is not right” (worse scenario).
The concrete impact of this is that the courts reject petitions for tenancy transfer due to social workers’
3
4
This applies to other persons, not the bearers of power. For instance, attorneys representing a client cannot believe
what their own client from a socially ostracized locality is saying before the court, after hearing him state something
diamettrally different before. Having written the petition on the basis of the previous version, he has a hard time not
making a complete fool of himself.
Careful reading of the Czech (formerly Czechoslovak) Family Code reveals that it is applicable practically to any cultural
environment that is based on monogamous relationships. Practical application, however, transposes the bourgeois
morals of the 19th century into present-day decision-making.
wrong assessment of the common household conditions of the persons involved, etc.
Similar situations occur when assessing certain social relations in a culturally different
environment with internal hierarchic structure. If the authority evaluates the aspects of certain
voluntary conduct versus non-voluntary conduct enforced under the pressure of some hierarchic
relationship using the prism of one’s own cultural experience, the evaluation will only regard such
conduct as voluntary, contrary to reality. This leads to situations where the civil and penal laws do not
prosecute pathological behavior or rectify the consequences thereof, such as expulsion from an
apartment, solicitation of money, etc. On the overall scale, this means that the law formatted by the
majority cannot guarantee compliance with the minimum standards of behavior coded in the law.
Such a failure of one of the functions of the legal system leads to a situation where the power
establishment of the state is viewed as an environment where certain persons feel threatened and
become socially ostracized like an alien structure in a defensive position. This kind of environment
breeds and reinforces alternative ways of power control that only aggravate the state of isolation on the
part of such persons.
Denial of Access to One’s Rights (Monopolization of the Law)
According to enlightened legal traditions, denial of justice (or any decision whatsoever) is one of
the gravest crimes that a judge or civil servant can commit. Nevertheless, it is a relatively common
occurrence and it is accountable to actual monopolization of procedural relations. While the law puts
emphasis on the contents of behavioral acts and patterns, the protagonists of the state or public power,
or providers of public services, attempt to formalize these relations as much as possible. In order to
achieve it, they use – or rather they exploit – their superior position and the chicaned recipients’ lower
social competence. It is quite common that an officer refuses to accept an application on the grounds
of incompleteness. The applicant rarely (practically never) goes to the court to complain, nor is he
counseled about his rights, such as his right to dictate his complaint to the clerk for the record,
including his right to be exempt from the fee for such services, and his right for free-of-charge legal
representation, etc. It is of course correct to accept every application, initiate proceedings, and ask the
applicants for further documentation, enter their complaints on record, etc.
One may theoretically pursue all of these rights through a court action, legal pursuit, and
claiming one’s rights using a shorter process. This does not happen, however, because of the rejected
persons’ dependence on the forthcoming attitude of the whole system. Fighting rejection under the
unwritten rules of the bureaucratic substructure an option available practically only to the graduates of
university law departments with hardly any practical experience and those who can afford legal services,
i.e., those who have no need for such services. For the sake of clarity, let me add that rejection on the
part of officials no longer takes place on the middle class level (e.g., in connection with building permit
procurement) because the risk of complaining has become too high so that officials no longer dare take
chances. However, in communication with inhabitants of socially ostracized localities, officials have a
strongly developed instinct as to whom they can “get rid of” or otherwise. In practice, whenever an
applicant comes in to request some benefits, the official finds a reason to refuse him or force him to do
something he normally should not be forced to do. If the applicant has the courage to object, the
official threatens him that he would withdraw some other benefits from him.
The most severe cases of denial of access to one’s rights is the state’s unwillingness to
persecute, investigate, and prosecute incidents that are considered undesirable and would otherwise be
punished, as long as they happen within a socially ostracized locality and present no danger to the
majority. In the end, all these monopolization occurrences lead to segregation of persons who are
unable to fight monopolization, thus deepening and reinforcing the barrier that surround socially
ostracized localities.
This syndrome is difficult to deal with. On the part of the state services provider, it calls for
more enlightenment constant supervision, strict penalties, and upgrading of the relevant personnel’s
educational level. There is no need to point out that many monopolization occurrences are linked to
concealed or open racism, whether individual or institutional.
Both of the above occurrences can be defined as symptoms of bureaucratic socially
discriminatory pathology with racial subtone (depending on the judgment and disposition of the
discriminator).
Ad 3)
Despite the above declared principle of cultural neutrality of the law, it is essential to note that
even law in its pure form, i.e., free of any biased application of legal provisions, is not quite perfect, as
even its very principles, i.e., the foundation stones containing the paradigms, have a distinctly majorityoriented format. This status quo is the result of the historical reality that modern law has been formed,
in principle, during the period of bourgeois revolutions in western Europe and reflect the parameters of
the then morals that have not changed much since that time.
Equality Before Law
Formal equality before law leads today – where every and any dispute is a time-consuming
matter, requiring legal services, acquisition of a great volume of information (evidence) – to a situation,
where he who lacks the financial means persons finds himself in a position that is hardly equal
compared to his economically stronger opponent. This situation differs from law monopolization in
that it is not about public law (vertical) relations but private law (horizontal) relations. While vertical
chicanery can be best countered through social competence, private legal opponents are best dealt with
with the aid of material means. There exists a certain partition line between having material means at
one’s disposal, enabling one to maintain a more or less relevant position in a club of one’s equals, and
declining below this line thus exposing oneself to a considerable risk impoverishment. In the Czech
law, there exist mechanisms that are supposed to balance these occurrences (pro bono legal aid, etc.).
However, their effectiveness is minimal. Increasing their effectiveness would require considerably
more public funds, social capital, and awareness on the part of the intellectual elite.
As a model example, let me present a situation where a businessman purchases real estate
inhabited by poor people and then rids himself off these tenants in a manner that is contradictory to
the law, thus raising the value of his real estate and making them lucrative for sale in the open market.
Anybody doing this on a major scale can be sure that most of the addressee of his chicanery will not
stand up to him, because the people living in that environment do not possess enough potential for
defending themselves against such treatment. Maybe one or two percent of the affected families will
try, but such exceptions present a relatively acceptable risk in business and can be reckoned with.
Besides, even those who try would hardly have access to quality legal services. If anything of that sort
happened in a lower-middle-class part of town, the matter would cause an outrage and resentment that
it would be doomed to failure. There exists a certain barrier that renders justice virtually inaccessible
and precludes accession to the club of the equals.
Justice to the Alert
An ancient principle of the Roman law stipulates that justice and protection thereof belongs to
those who pursue it in a relevant and qualified manner. In the context of this principle, which still
prevails in the Czech law in many cases, it is possible to pursue one’s right only on the premise that the
state attorney has adequate social competence, courage, and persistence. As praiseworthy as these
petit-bourgeois values certainly are, especially in the light of the functionality of present-day market
economy, they do not further the pursuit of justice on the part of those who do not fully recognize and
follow these value. There is no need to emphasize that postmodern society has abandoned radical
liberalism long ago and it is only a question of time when legislation will concentrate on protecting the
weak truly and effectively.
As a model example, let us imagine a situation where low-income or welfare people often take
loans from semi-legal institutions whose financial policies are on the verge of legitimacy. These
practices can be fought through relatively sophisticated legal actions requiring a great deal of
determination to fight for one’s rights. Ignoring such “problems” makes them virtually irreparable.
Due to certain rules of procedure, lapsing the statute of limitations for an appeal, objection, or
disquisition can have fatal consequences.
The above mentioned “majority format” is therefore, to some extent, accountable to the
cultural level of the middle classes, with the consequence that the law as a whole continues to fail to
have an effect on the poor (nut also the rich) outskirts of the society. Thus, quasi-legal systems are
formed at both poles of the society and function quite differently from traditional law5. Traditional law
may then either adapt to the new conditions or let itself be suppressed and eventually liquidated from
both counter-sides. Ř The only solution to this state of affairs is implementation of principles and
concrete amendments effective enough to compensate for these defects.
In addition to the foundation stones from which legal codes are derived, there also exist
segments of the law that are not based on rigid principles. On the contrary, they arise from recent
legislative updates and their current version allows individual legal dispositions to have a different effect
than originally intended at the time of their formation. Most of them are public law regulations in the
sphere of private law relations.
Regulation of the Labor Market
In the Czech Republic, like in most of the world’s countries, employment relations are regulated
by public labor laws in the form of cogent (untouchable) limits of contractual liberty, on the one hand,
and in the form of collectively (trade union) negotiated general conditions of the labor market, on the
other. In practice, this leads to existence of certain contractual types of employment relations that are
practically binding. Furthermore, the position of individual employees is defined within the framework
of these liberties as part of the collective approach of/to union-organized employees.
The inhabitants of socially ostracized localities have a hard time finding employment.
Paradoxically, the current legislation does not help much and typical members of the poor
undereducated classes are at a disadvantage compared to those in a higher position and/or having a
higher status. Under the Czech laws, relations can be contracted for a definite and indefinite time,
whereby the former are subject to specific contractual provisions based on the number of hours of
work for one employer on a temporary basis for one year. Short-term employment contracts, being
less privileged, may not be renewed, in order to protect the rights of long-term employees whose rights
might be circumvented in this manner. The result of these provisions is that it is practically impossible
for someone from socially ostracized locality to find long-term employment, because the employer
always finds somebody else for unqualified jobs, as the costs are identical and he is not forced to hire
these persons for an indefinite time. This creates a branch-specific standard for short-term
employment that does not inconvenience the employer at all, but considerably diminishes the
temporary employee’s chances for a long-term job security.
Another specific aspect of the matter is inconvenient taxation of income. Taxes are levied at a
flat rate, which is relatively high; creating a considerable tax burden that is refundable but only on the
premise of intellectual investment requiring the highest level of literacy. The drawback of this system is
relatively low selection of job opportunities and their cumulation in the least favorable time frame. The
fact are that the limitation of temporary employment under the law is convenient only for those
workers who are at least minimally irreplaceable or whose replacement would generate considerable
transaction expenses (training, trial period, etc.). Otherwise, the inconvenience of temporary
employment is on the part of the employee only. Disadvantages may also be concealed. For instance,
if someone has been working on a temporary basis for several employers (short-term job contracts), he
is formally always employed and draws adequate salary, but he is at a disadvantage tax-wise, because he
is forced to pay his own health insurance, has no social security, and the taxes he pays are higher than
those paid by a comparable worker who is employed for an indefinite period. His greatest disadvantage
however is that he is in a much worse position in terms of his ability to do budget planning and
5
For example, the system of international arbitrage is an option that is typical for the wealthy pole of the society. Its
principles differ from traditional law about as much as traditional law from the ways of the underworld.
planning for his future. Such a worker is unable to take out a loan for any investment and is therefore
not motivated to save, because his perspective of his own future is very vague, nearly non-existent,
since the consequences of all these circumstances keep him on the verge of the society. Trade union
affiliation has a similar effect, because it presents certain advantages for the organized members, most
of them middle class, giving them an advantage over the lowest class who have no chance to join or
form an independent organization due to minimal contributory potential of these employees.
Abrogation of public law provisions or collective agreements is out of the question. It would
not bring the desired results anyway. Besides, it would be politically unacceptable, not to speak of the
incompatibility of such an idea with international treaties. Nevertheless, it is possible to set up the rules
so that they serve the intended purposes, i.e., protection of the weaker segment of the labor market.
An important step was taken when the barriers between the individual types of contract were removed
from the Labor Code and the possibility of scale-based labor relations was opened. The nest step
should be a reform in the area of the levies payable, so that both sides would have equal advantages.
The reform should be administratively better both for employers and employees. The reformed
procedures would allow administratively (capable) less literate persons to access the organizational
segment of the labor market, thus removing one of the barriers for the socially ostracized, i.e., the
requirement of administrative competence to be able to assert one’s other competences, such as social
intelligence, etc. As to trade unions, hitherto a privilege of the middle classes, it would be constructive
to implement institutional conditions for membership that would not be linked to employment.
Instead, it would give equal membership opportunities to all participants of the labor market, including
temporary workers with short-term contracts and job applicants. An example of that would be creation
of participation in a union, including subsidies to unions aiming to mediate job opportunities for the
unemployed, including membership equivalent as one of the forms of effort to find employment. An
essential prerequisite would, of course, be change in the relatively conservative attitude of the trade
union public.
Ad 4)
A significant drawback of the functionality of laws is wrong allocation of resources in terms of
the intensity of the different segments of the law and law enforcement. While certain laws can be
rectified by simply stating facts, without having to be amended, extend the scope of protection or
anything else, or going into too many details, in other cases, the provisions on protection miss the point
and require provisions of a lower level. An example of it is comparison of the restriction of
discrimination of illegitimate children, guaranteed by the Convention, and restriction of racial
discrimination, likewise guaranteed by the law. In both cases it applies that the legal postulate is
formulated as the highest standard that is universally applicable throughout the system, in relation to
every attestable human behavior or recognized state of affairs. The need for legal amendments
depends not as much on this theoretical applicability to any conduct or situation as on the reality pf
social relations. Discrimination of illegitimate children is not common, whereas racial discrimination is
a relatively complex problem that cannot be resolved merely through a universally applicable legal
postulate which is, however, not being applied. The legal system is thus forced – and this is generally
true – to allocate more of its resources to areas that require more means in the form of standards and
energy to be achieved.
This problem is different from the previous three problems. While the previous problems are
vertical, they can influence one area of the law, presenting a structural problem that is identifiable in the
microstructure of the law or constitutes an error in the basic postulates; this problem is horizontal in
that it is imbalanced in addressing of the law and its effects. The law does not emerge by itself, not
does it function by itself. It is man’s creation and as such it is always created, developed, applied, and
changed as part of the activities that the society conducts as a whole. In addition to having to define
the ratio between the law and the absence thereof, which is a common theme, it can be also assessed in
terms of the means allocated to the protection of individual interests protected by the law. Concretely,
it is essential to establish whether the society creates specific legal standards that better reflect the
situation caused by an existing social problem. When contemplating the volume of these resources, it is
necessary to start from a certain limit of manageability of the legal system as a whole, based on a
specific limit of the applicability of these resources.
Since the resources are limited, it is natural that they have to be allocated in accordance with
priorities that the society somehow defines. If the elites assess a certain social problem as one that
currently requires attention, the society will devote sufficient energy for creating concrete standards
applicable to the given problem, invest into education of the people who apply the law, and adapts law
enforcement to handling the given problem. Provided that a suitable social strategy is chosen, the
problem can be expected to be removed, mitigated, or moderated. The relevant legal provisions then
become pointless or less important, which does not present a major problem. In the opposite event,
the problem will grow to dimensions that make it insurmountable with the current means. In a certain
sense, allocation of resources can be compared to treatment of a pathological condition. An equal
distribution of resources with effective exploitation of capacities when setting up a more complex
mechanism is far more constructive, as there is no point in investing effort or energy into increasing the
quality of one component/segment only, because the strength of a chain is only as good as that of its
weakest part.
In the Czech Republic, like in many other countries, there exists a certain measure of
discriminating behavior that is characteristic for a relatively measurable part of the inhabitants of the
Czech Republic. Despite the latency and size of this occurrence, it has been played down and the
Czech law devotes less attention to this problem than necessary. It is very hard to assess the actual
intensity of the legal attention given to this problem. Nevertheless, one can get a general idea through
comparison of relations between sociologically identified prejudices of the population and actual
opportunities of racially different persons to find employment, on the one hand, and the number of
processes (of any kind) taking place due to discriminatory conduct, on the other. Comparison of
reported and presumed incidents of theft and he number of proceedings dealing with these thefts
makes this imbalance obvious. The legal system as a whole is unable to react adequately to individual
discriminatory conduct of the addresses of the law. This applies primarily to the area of private law. In
the area of public law, the problem is less common. Moreover, it can be removed using the means
described under (1) to (3).
A common occurrence is discrimination in employment, most frequently in hiring. From the
sociological viewpoint, it is one of the roots of social isolation, because socially ostracized persons are
thus deprived of equal access to job opportunities and therefore have no work, in the worst scenario, or
perform the kind work that is status-wise available to socially ostracized persons. The result is, in both
scenarios, that the socially ostracized have no chance to form relationships within the network of the
society’s segments through employment or work contacts and their isolation is thus aggravated. The
situation is similar in other segments of private law relations, where discrimination in services leads to
segregation on the level of social relations (restaurants for the white), etc. Discrimination on the level
of private law relations is after all a relatively strong assault against human dignity that, if practiced
consistently, leads to psychological adaptation of individuals to the role imposed on them. Racially
discriminated individuals are then socially deprived and their self-conscience is very low. They are
forced to find their place in an environment that respects them as their equal – i.e., the ghetto.
Discrimination in labor relations and other private law relations is just as harmful as discrimination in
public law relations, in particular, because every individual today us confronted with his environment
and the way his environment views him.
Discriminatory conduct is legally inadmissible, but is not penalized enough. In this respect, the
legal provisions prohibiting discrimination have yet to be perfected (norma imperfecta). Their inadequacy
prevails on many levels of the law application system, specifically, inadequate legislation per se,
inadequate legal and social competence of the personnel working in justice and administration
authorities, including the police, inadequate judicature, political will to change the status quo, etc. In
the context of occasional efforts to change the status quo, apparently liberal arguments for selfregulation of these occurrence emerge now and then, and reference are made to legal guarantees and
options for defense, pointing out the private aspects of the problem. There have even been efforts
made to initiate private law proceedings (court actions) to facilitate transfer of the burden of proving
innocence onto the person that is obliged to refrain from discriminatory conduct, but progress in this
direction has not been adequate to date. At present, most entities committing discrimination, for any
reason whatsoever, bear very low risk of judicial prosecution, with certain financial costs to the
perpetrator, but the risk is virtually negligible. For instance, the danger of prosecution is far greater for
someone who commits theft than for someone who commits discrimination.
If someone reports theft to the police, the policeman rarely advises him that ownership is a
matter of private law and that he may press charges against the person who endangered him (i.e., the
thief), file a requisition for refunding of individualized items (purse), or a petition for loss
compensation, and petition for payment of generically defined valuables (money). Such information
should be accompanied by a recommendation to hire a lawyer and, in order to identify the obligated
party and his place of residence (jurisdiction of competence by venue), it is best to hire a detective
agency. If the suing party is successful, an enforceable judgment is issued, ordering refunding of the
stolen funds, including a flat amount of court fees (approx. CZK 5,000). Execution of the judgment is
uncertain and the costs can be comparable (lawyer, again, and private executor). If someone reported
to the police to have been thrown out a pub or admission interview because his counterpart did not like
the shade of his complexion or another personal feature, and then obtain instructions comparable to
the above recommendations, as to how to defend one’s ownership rights, it would be exemplary
conduct on the part of the policeman that is hard to encounter among policemen. This is absurdly
disproportionate, of course – it is an exaggeration. Nevertheless, the exaggeration aims to demonstrate
that private law proceedings cannot solve the problem of discrimination. By the same token, no other
assaults on private rights/liberties can be resolved under the provisions of private law. The protection
is subject to the Penal Code. Discrimination is an assault against the equality of people, their rights,
and their dignity, and it is one of the foundation stones of a democratic and legal state. It is necessary
to prosecute discrimination just like fraud, theft, physical assault with bodily injury, or extortion. For
the sake of information, it should be pointed out that discriminatory conduct is not punishable as a
crime but as an offence, whereby the authorities have a way of debating these offences to the extent of
virtual nonexistence. Offences are subject to a maximum penalty of CZK 5,000 and are handled by
municipal offices. The penalties are not entered in any crime register, not do they restrict the
perpetrator from any activity.
Allocation of legal resources in the Czech society is distinctly imbalanced, so that legally
protected values are in fact not protected to the extent corresponding to the important of these values.
Property, health, life, execution of state authority decisions, and other comparable values are protected
under the Penal Code in the form penalties and prosecution by the state. The significance of this fact
lies not as much in the reparation process (most clarified minor thefts do not result in refunding) as in
the fact that it is, inter alia, subject to a penalty and that the state take initiative to protect these values
and that anyone who violates them will be prosecuted by the state machinery. Only when
discrimination is prosecuted in a comparable manner, will the addresses of justice be able to feel the
society’s genuine value orientation and the victims of such pathological conduct will react by social
regression. On the contrary, as long as discriminatory conduct is connected with neutral risk, like an
elementary disaster, general awareness will not change. The problem of resources allocation is a matter
of wider political and legal elites and they should realize that the certain legal postulates should be
protected by the law, if the society is to have integrity.
Ad 1) to 4)
All in all, it can be said that law in the Czech Republic is effective on the middle-class level, but
completely unsuccessful on the level of the poorest classes. Its imperfection has several levels:
application deficits with unintentional consequences, despite best will, deficits caused by low
competence of the personnel working in the whole system, and also systemic faults. The values we try
to fit into the law on the input side come out looking quite different on the output side. The
effectiveness of the law on the verge of the society is negligible.
All these drawbacks have a common denominator: formation of distinct barriers that lead to
social isolation of economic and statutory nature. Synergy and multiplication of the functions of social
isolation are consequential to formation of ghettos, groups of socially ostracized persons who, in
addition to other troubles in their lives, do not have a single reason to view the concept of law in the
same light as the author of this paper.
The broad consequences of these and other of the above mentioned occurrences differ, in
addition to the formation of a relatively clear-cut barrier between the socially excluded and socially
included, that could be defined as the universal “we” and “they”. There are also other occurrences
linked to the existence of this barrier: adaptation of the majority, adaptation of the minority, and
vulturization. Whenever social, income, relation, often also territorial barriers are formed, the
segregated worlds become separate units with their own internal balance and defined inputs and
outputs.
The majority adapts to the existence of the minority by associating certain dominant attributes
with the minority, using them henceforth for classification and isolation of the individual belonging to
the minority (racial features, language specifics, ways of dressing, behavioral patter). This approach is a
generalization that is not error-proof, but no errors can jeopardize the “advantages” of this approach.
It allows the majority to push the minority beyond the limits of its social sensitivity and to satisfy some
of its collective social needs. First of all – and most importantly – the need of projection. Every large,
dynamic entity needs to designate itself as a good one, simultaneously calling the minor entity/entities
as the bad ones. The minority, having no control over public opinion, becomes an (involuntary) bearer
of this role. This is linked to practical consequences. Since every economic system requires a certain
degree of social pressure in terms of performance, the existence of the poor class may be exploited as a
method of pressure. The poor class functions as a controllable catcher’s net of social relations and
such it not entirely beyond the control of the majority, even though it is not directly linked to it. The
majority may then enforce adherence to certain standards to protect its interests, suppresses jeopardy of
its own interests (theft, robbery) and, simultaneously, does not suppress occurrences that would be
considered pathological, if they took place in the majority (usury, etc.). The existence of a minority is
above all motivating and minority itself becomes the archetype of medieval repudiation from the
community beyond the city walls. Today, thanks to the existing class of the socially ostracized, such
repudiation is more acceptable and less risky, as life “beyond the city walls” can be bearable and free of
such excesses as uprisings, or the like. In concrete terms, adaptation of the majority means
reinforcement of the above described isolation practices. An example of it is, for instance, relatively
strict insistence on penalizing any violation of the rules that protect the interests of the majority and
playing down disrespect for relations within the minority. In certain more sophisticated local
communities, there exists an isolation policy and formation of ghettos thus represents the
municipality’s official policy. The majority adapts itself to the point where it favors members of the
minority who can help it keep control over the rest of the minority, whereby the methods used in this
context often are contradictory to the very principles that the majority identifies with as their own.
Adaptation exists even within minorities, i.e., adaptation to existing and ever growing social
ostracism. The majority, being the stronger player, calls the rules of the game, so that the members of
the minority merely copy the pattern, being in a defensive position, so to speak. In the first place, they
accept the requirement not to interfere with the interests of the majority and limit any incidental and
necessary illegal activities to the minority alone. On the defensive level, adaptation of minorities often
takes on the form of maximum resistance, which is frequently reflected by the older members of the
majority as stereotype and no longer applicable experience. An example of it is refusal to accept court
summons, which used to have somewhat practical advantages in the first half of the 1990’s, but no
longer does. Another typical example is concealment of social relations before the mechanisms of
institutionalized control, which lead to an even greater latency of pathological occurrences. Last but
not the least, there also exists adaptation to the social system of state-subsidized welfare, leading to
creation of a parallel world of for-the-record relations, quite different from the reality. This
consequentially generate enormous burden for the administration and the whole system. To give a few
examples: this applies fictitious marriages, fictitious divorces of partners who continue to live together,
fictitious paternity, fictitious families, etc.
The most important and most detrimental adaptation occurrence is formation of own hierarchic
structures that substitute the absence of state authority in the sphere of a social minority’s relations.
These hierarchic relations are based on relations involving social, financial (loans/debts), and
oppression control, mutual support, and a strong feeling that nobody is entirely “clean” from the
perspective of the majority’s laws (this is related to the concept of collective guilt). Formation of these
structures leads to control of the weak by stronger individuals and exploitation of human and
intellectual capacities of the minority that is blocked, status-wise, for the purposes of the majority, its
own benefit, shady economy, or even organized crime, in exchange for a small share of the profits.
The last common occurrence is so-called vulturization (from the Latin word vultur,-uris). In
addition to the liaison points where the majority and minority meet, with the purpose of controlling the
minority (the majority supports individuals in the minority in exchange for control), there also exist
newly emerging structures on the part of the majority, whose aim is to profit financially from the
hopeless affiliation to the ghetto. A typical example of it are various companies that lend money at a
very high interest, outside the supervision of the banking authorities, and try to have control over the
finances that flow to the minority in the form of state subsidies (and often are enforceable).
In a broader context of the matter, the existence of a barrier between the world of the havepoor and the wealthy is accompanied by development of a system for controlling transfer and
transition of persons, material goods, and other commodities, whereby all the hitherto existing
occurrences lead to reinforcement of the status quo, as pathological as it happens to be. On the whole,
these adaptation mechanisms lead to formation of a world that in American metropolitan cities is
generically known as the street, where one of the sides is designated for the whites and the other for the
blacks.
It is a question how to address these problems and how to face the risks arising from them. We
should in the first place, comprehend them and then begin to begin, effectively, to promote the values
on which it is base, rather than denying/suppressing the existence of the above occurrences. These
values include, above all, human dignity. One prerequisite is paramount to all : respecting one another
under and all circumstances, including enforcement of such respect. Another inevitable qualification
prerequisite is upgrading of the human and qualification potential of the public law corporations,
private entities, and political elites that will be interested in fighting this syndrome. It is would a
mistake to believe that the above ideas are mere intellectual contemplations that do not reflect the
political reality of the Czech society. Poverty is a problems of the whole society, because it not only
poses a burden as a whole, financial and otherwise, but also because it is a form of erosion of one of its
fundamental functional prerequisites. Concretely, it undermines its minimal integrity and conformity to
generally shared values. It is a duty and one of the political elite’s functions, generally speaking, to
communicate this reality to the public in a relevant manner. So far, its members have failed to fulfill
this function that is prerequisite to further steps in the direction of solution finding. If the elite acts
soon, as it is high time, indeed, the political system will be able to resolve these problems using
democratic means, with participation of all the parties involved, not constitutional enforcement. In a
legal state, finding a democratic solution to every and any problem is an essential prerequisite to
success.