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«The Good Bribe Philip M. Nichols* Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment ...»

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The Good Bribe

Philip M. Nichols*

Bribery is justifiably condemned, and is the object of a global legal

campaign. This article asks whether payment of a bribe can ever be

justified. In order to answer that question, the article first looks at three

tropes of reasons for criminalizing bribery: as a reflection of morality, to

preserve the connection between people and their government, and to

prevent harm. The article then examines and dismisses two common

excuses for bribery: the need to pay a bribe to conduct business, and the optimal level of legal enforcement. The article then examines arguments for paying bribes in authoritarian regimes, and concludes that such arguments must be treated with caution. Finally, the article considers bribes paid by Oskar Schindler to save the lives of Jewish workers.

Schindler’s bribes demonstrate that some bribes can be justified. Such bribes do not present a new checklist for evaluating bribery, nor do they represent a new trope of thinking. Rather, unique circumstances raise such bribes above the rules against and concerns about paying bribes.

TABLE OF CONTENTS

INTRODUCTION

I. THREE CLASSIC WORKS ON THE CRIMINALIZATION OF

BRIBERY

A. John Noonan: Religious and Philosophical Rules................ 651 B. Robert Klitgaard: An Agency Analysis of Bribery............... 657 C. Susan Rose-Ackerman: The Consequences of Bribery......... 660 II. TWO JUSTIFICATIONS FOR BRIBERY

A. The “Necessity” to Pay to Do Business

1. The Empirical Claim

2. The Moral Claim

B. Optimal Levels of Corruption

III. THE GOOD BRIBE

A. The Argument in General

* Copyright © 2015 Philip M. Nichols. Associate Professor of Legal Studies and Business Ethics, The Wharton School of the University of Pennsylvania.

University of California, Davis 648 [Vol. 49:647 B. The Good Bribe

CONCLUSION

The Good Bribe 2015] 649

INTRODUCTION

In the 1960s, some scholars commended bribery as a means of overcoming bureaucratic obstacles in developing countries.1 Today, it might be difficult to find scholars who embrace corruption of any sort.2 The campaign against bribery has become global, and features the creation of a transnational regime that encompasses local law and international treaties.3 Much of the legal scholarship over the last fifteen years has focused on criticisms of bribery, possibly as a response to the decades during which corruption was either ignored or was tacitly encouraged. The last defense of bribery in general — a claim that it is culturally embraced in some places in the world and thus that a global regime prohibiting bribery constitutes cultural imperialism — has been eviscerated as itself culturally inaccurate and arrogant.4 Bribery seems legally indefensible.

This article examines the presumption that bribery is indefensible. It does so by first examining three tropes of reasoning for criminalizing bribery through the lens of three seminal works on corruption. Each 1 See, e.g., SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES 68 (1968) (“Corruption may be one way of surmounting traditional laws or bureaucratic regulations which hamper economic expansion.”); Nathaniel H. Leff, Economic Development Through Bureaucratic Corruption, 8 AM. BEHAV. SCIENTIST 8, 11 (1964) (“[G]raft may enable an economic innovator to introduce his innovations before he has had a chance to establish himself politically.”).

2 This article discusses bribery, which is a subset of corruption in general. The literature on corruption, including some of the literature referred to in this article, sometimes uses the term bribery and corruption interchangeably. See MICHAEL JOHNSTON, SYNDROMES OF CORRUPTION: WEALTH, POWER, AND DEMOCRACY 20-21 (2005) (describing terms and noting their interchange).

3 See Blake Puckett, Clans and the Foreign Corrupt Practices Act: Individualized Corruption Prosecution in Situations of Systemic Corruption, 41 GEO. J. INT’L L. 815, 858 (2010) (describing “a global moral campaign against corruption as a scourge that fosters inequality and global poverty, corrupts democracy and the rule of law, and jeopardizes sound governance and international security”); Elizabeth K. Spahn, Local Law Provisions Under the OECD Anti-Bribery Convention, 39 SYRACUSE J. INT’L L. & COM. 249, 251-55 (2012) [hereinafter Local Law Provisions] (discussing the regime, countries involved, treaties, and local law).

4 See, e.g., Philip M. Nichols, The Myth of Anti-Bribery Laws as Transnational Intrusion, 33 CORNELL INT’L L.J. 627, 645-50 (2000) [hereinafter The Myth] (finding that there is no empirical evidence to support the claim that countries are seriously offended by anti-bribery laws and that available anecdotal evidence of extraterritorial application of antitrust laws is “unsound and misleading”); Elizabeth Spahn, International Bribery: The Moral Imperialism Critiques, 18 MINN. J. INT’L L. 155, 195 (2009) (arguing that deference to supposed cultural bribery norms in reality encourages unethical business and legal practices).

University of California, Davis 650 [Vol. 49:647 of these works is foundational in legal scholarship on corruption and bribery, and each also accompanies a significant movement of criminalization of bribery. These tropes suggest that bribery should be criminalized as a reflection of society’s moral indignation over the payment of bribes,5 as a means of preserving the relationship between a people and their government,6 and as a means of preventing harm.7 Second, this article examines two justifications that are sometimes offered for paying bribes. A claim that a bribe “must” be paid in order to engage in business survives neither empirical nor moral scrutiny.8 Third, this article examines the claim that bribes can be paid in authoritarian regimes in order to purchase some relief from oppression. Although this claim has more merit, the article finds problems with the general claim.9 Finally, the article examines a discrete set of bribes, the bribes paid to Nazi officials by Oskar Schindler to save the lives of Jewish workers.10 The article finds that these bribes are justified. Schindler’s bribes, however, do not present a new way of evaluating bribery, nor do they represent a new trope of thought. Rather, these bribes demonstrate that in extraordinary circumstances certain bribes rise above the considerations represented by the three tropes of thought discussed earlier. Similar circumstances might exist today, and could also exist in the future.





I. THREE CLASSIC WORKS ON THE CRIMINALIZATION OF BRIBERY

The particular reasons for any given law criminalizing bribery probably defy simple explanation. Scholars have, however, given careful thought to why bribery in general should be controlled. This section reviews three seminal contributions to the study of corruption.11 Each of these is worthy of study in and of itself. This section does not provide an exegesis of these works, but instead uses each to exemplify and to illustrate a trope of thought on the reasons

–  –  –

for imposing controls on bribery. The first of these tropes considers moral issues attached to bribes.

A. John Noonan: Religious and Philosophical Rules Scholarly understanding of the relationship between law and morality is, to put it mildly, complicated.12 Justice Holmes, in The Path of the Law, suggested that there is in fact no relationship.13 A softer version of this realist perspective suggests that “legal wrongs embody their own normativity, which is hermeneutically independent of morality.”14 Ronald Dworkin, on the other hand, suggests that law cannot be extricated from broader social concepts, particularly those related to justice.15 “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.”16 Lynn Paine participates in this debate, but also makes a relevant empirical observation. Regardless of whether law should correctly be interpreted only though its own internal normativity or whether law must turn to broader concepts of justice in order to be considered

moral, “[i]n truth, the relationship between [law and ethics] is in flux:

the prescriptions of law and the prescriptions of ethics coincide to different degrees at different times and in different societies.”17 Further, Paine argues, social norms often contribute to change in legal rules: “what is legally permissible but ethically questionable today may be legally restricted or prohibited tomorrow.”18 12 Lynn Sharp Paine, Law, Ethics, and Managerial Judgment, 12 J. LEGAL STUD.

EDUC. 153, 153 (1994) (“The question of how best to conceptualize the relationship between law and ethics is a perennial one in Western jurisprudence. It is a topic addressed by many leading thinkers in that tradition — Aquinas, Bentham, Holmes, Kelsen, Fuller, Hart, and Dworkin — to name some of the best known.”).

13 See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 464 (1897) (“For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.”); see also Harry W.

Jones, Law and Morality in the Perspective of Legal Realism, 61 COLUM. L. REV. 799, 799 (1961) (describing Justice Holmes as “the hero figure of the realist clan”).

14 Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 HARV. L. REV. 1664, 1678 (2012).

15 RONALD DWORKIN, LAW’S EMPIRE 5-6, 14 (1986).

16 Id. at 225.

17 Paine, supra note 12, at 165.

18 Id. Paine observes that “[l]aw is most often a lagging indicator of social ethics.” Id. at 167.

University of California, Davis 652 [Vol. 49:647 In Bribes, one of the earliest legal tomes on bribery, the eminent jurist John Noonan argues that “[t]he bribe has had the life of a moral concept.”19 Noonan explains that moral concepts are subject to discovery and change: “Moral concepts found enshrined in traditions do not stay the same. They undergo transformation. They are subject to investigation and criticism. They expand, shrink, or disappear.

They depend on what reason can determine and what is perceived as the demand and example of God?”20 Noonan concludes that “[t]he movement to restrict by law many forms of reciprocal exchange with officeholders incorporates the thrust of a dominant moral idea. The conventions that give concreteness to the idea of the bribe will be refined and made responsive to the needs satisfied by human trust and human conformity to God’s example.”21 Noonan’s background includes theological training in Christian philosophy, and much of his analysis focuses on the evolution of the idea within Judaism, Christianity, and Islam.22 Judaism, Christianity, and Islam all strongly condemn corruption. The venerated Judaic Book of Education warns that, “among the laws of the precept, there is what our Sages of blessed memory said, that both the one who gives and the one who accepts [the bribe] violate a negative precept.”23 The Pentateuch, shared by Judaism and Christianity as the Torah or the first five books of the Christian Old Testament,24 is replete with unequivocal proscriptions and condemnations of bribery: for example, 19 JOHN T. NOONAN, JR., BRIBES 683 (1984). See generally Beverley Earle & Anita Cava, Are Anti-Corruption Efforts Paying Off? International and National Measures in the Asia-Pacific Region and Their Impact on India and Multinational Corporations, 31 U.

HAW. L. REV. 59, 66 (2008) (describing Bribes as “seminal”).

20 NOONAN, supra note 19, at 683.

21 Id. at 706.

22 Noonan summarizes the story that he tells as beginning in the Ancient Near East and “entering into the commandments of Israel,” then into Greece and Rome, then onto “the banner of religious reform in the eleventh century” where it stayed “for over 500 years,” from whence it entered the common law of England and then the political life of the United States. Id. at 683-84; see also id. at 809-10 (“Table of

Scriptural Citations”). See generally Charles J. Reid, Jr., The Fundamental Freedom:



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