«The Good Bribe Philip M. Nichols* Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment ...»
Judge John T. Noonan Jr.’s Historiography of Religious Liberty, 83 MARQ. L. REV. 367, 367-76 (1999) (reviewing Noonan’s training and scholarship).
23 1 SÉFER HAḤINNUCH, THE BOOK OF [MITZVAH] EDUCATION 325 (bracketed text in original) ([1200?] 1978).
24 See generally Kenneth B. Orenbach, The Religiously Distinct Director: Infusing Judeo-Christian Business Ethics into Corporate Governance, 2 CHARLOTTE L. REV. 369, 404-05 (2010) (describing the Pentateuch). Islam also recognizes the Pentateuch as a divinely inspired scripture, albeit one that has been corrected by the Holy Qur’an as the “last enactment of God.” Muhamad Mugraby, Some Impediments to the Rule of Law in the Middle East and Beyond, 26 FORDHAM INT’L L.J. 771, 774-75 (2003).
The Good Bribe 2015] 653 “You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe...”25 and “you shall take no bribe, for a bribe blinds the clear-sighted and subverts the cause of those who are in the right.”26 The New Testament of the Christian Bible does not itself specifically prohibit bribery, but biblical scholars note that they “have found nothing in the New Testament to suggest the Old Testament prohibitions against bribery and extortion should not be applied today. On the contrary [they] have found much to affirm the Old Testament perspective concerning bribery and extortion.”27 The Holy Qur’an, the foundational religious text in Islam, bluntly states that “Allah does not like corrupters,”28 and admonishes believers “not [to] consume one another’s wealth unjustly or send it [in bribery] to the rulers in order that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful].”29 After reviewing traditional and contemporary sources, Islamic Law scholar Mohammed Arafa concludes that “[c]orruption and bribery are serious crimes which Islamic law considers to be simultaneously religious and criminal offenses due to the serious harm caused by them to the community.”30 The traditions on which Judge Noonan focuses clearly condemn bribery. Non-Abrahamic traditions, to which Judge Noonan pays less attention, also prohibit bribery. Followers of the Buddha’s teaching, for example, commit themselves to five moral precepts.31 Bribery violates the second of these precepts, not to steal, as well as the fourth, not to lie.32 The Dalai Lama, Buddhism’s most visible figure, 25 Deuteronomy 16:19 (English Standard Version).
26 Exodus 23:8 (English Standard Version).
27 See, e.g., RICHARD L. LANGSTON, BRIBERY AND THE BIBLE 64 (1991). Among the findings: “The New Testament affirms the Old Testament’s censure of the variance bribe. It adds to the Old Testament’s condemnation of bribe takers by providing specific instances condemning bribe givers, bribe offerors, and the offer of a bribe. It illustrates how bribery can escalate from small bribes to large ones. It records Paul’s resistance of Felix’s attempted extortion or solicitation of a transactional bribe. And it shows John the Baptist telling low paid soldiers not to use their position for extortion.” Id.
28 Qur’an 28:77 (Sahih International).
29 Id. at 2:188.
30 Mohamed A. ‘Arafa, Corruption and Bribery in Islamic Law: Are Islamic Ideals Being Met in Practice?, 18 ANN. SURV. INT’L & COMP. L. 171, 201 (2012).
31 These five precepts are not taking life, not taking what is not given, abstention from sexual misconduct, not making false speech, and abstention from intoxicants.
Damien P. Horigan, Of Compassion and Capital Punishment: A Buddhist Perspective on the Death Penalty, 41 AM. J. JURIS. 271, 275 (1996).
32 See U. Dhammaratana, The Social Philosophy of Buddhism, in THE SOCIAL University of California, Davis 654 [Vol. 49:647 specifically identifies corruption as a distortion of law. In describing a
talk by the Dalai Lama to a legal audience, Rebecca French notes:
The concept of “dirty law” is powerful. The Dalai Lama uses it to explain what happens when legal power is employed for purposes other than the truth. A person acting out of revenge, for example, should not be operating in our legal system. The emphasis on personal motivation is a constant element throughout Buddhist law. When lawyers act out of negative motivations such as greed, anger, hatred, personal interests, or fear, the law that they practice becomes dirty. Examples of dirty law are exploiting others, hiding the truth, acting for personal advancement, [and] dealing corruptly....33 Kong Qiu — romanized as Confucius — teaches his followers to focus on matters other than wealth: “A gentleman, in his plans, thinks of the Way; he does not think how he is going to make a living....
[A] gentleman’s anxieties concern the progress of the Way; he has no anxiety concerning poverty.”34 Thus Mencius, the great follower and teacher of Confucianism, teaches that “[a] fully righteous person would also recognize that it is just as shameful to accept a large bribe as it is to accept a small bribe, and so would refuse to accept either.”35 Confucianism focuses on public life; Taoism focuses on private life and tranquility.36 Taoism shares many of the principles of Confucianism but emphasizes a simple, natural approach to finding the way rather than the active and structured approach espoused in Confucianism.37 Through a tortured interpretation of Taoism, Michael Forrest and J.T.
Norris argue that the principle of simplicity and naturalism, wu wei, seeks to achieve efficiency and thus encompasses bribery of officials.38 PHILOSOPHY OF BUDDHISM 1, 17-18 (Ven. Samdhong Rinpoche ed., C. Mani assoc. ed., 1972); Bribery, GUIDE TO BUDDHISM A TO Z, http://www.buddhisma2z.com/content.
php?id=474 (last visited Aug. 31, 2015).
33 Rebecca R. French, The Dalai Lama Speaks on Law, 55 BUFF. L. REV. 647, 655 (2007).
34 The Analects 15:32 (Arthur Waley trans., Alfred A. Knopf, Inc. 2000) (1938).
35 Bryan Van Norden, Mencius, THE STAN. ENCYCLOPEDIA OF PHIL. (Edward N. Zalta ed., Winter 2014) (citing Mengzi 6A10), http://plato.stanford.edu/archives/win2014/ entries/mencius/.
36 See Henry Suen, Sai-On Cheung & Reuben Mondejar, Managing Ethical Behaviour in Construction Organizations in Asia: How Do the Teachings of Confucianism, Taoism and Buddhism and Globalization Influence Ethics Management?, 25 INT’L J.
PROJECT MGMT. 257, 261 (2007).
37 See id. at 262.
38 See Michael P. Forrest & J. T. Norris, Bribery and China Go Together Like Yin The Good Bribe 2015] 655 Simplicity, however, is fundamentally different than efficiency; for Taoists, “efficiency [is] only a by-product or something incidental, and is not the main concern of their philosophy.”39 In contrast to Forrest and Norris, Chuang Tzu, the ancient Taoist scholar, condemns “[t]he intelligence of the mean man” for “not ris[ing] beyond bribes” and thus failing to find the simple way.40 Hinduism, Sikhism, and Jainism also vigorously condemn bribery and corruption. In reviewing foundational works of the Hindu faith, Upendra Thakur notes that a perusal of the Smṛti works makes it clear that the earlier Smṛti-writers prescribe a much more drastic punishment for the bribe-seeker [than for the bribe giver,] who finds a graphic mention in one of the early inscriptions. [Manusmṛti] and Viṣṇsnu [Purāṇrna] also ordain that the entire property of a bribe-consuming official should be confiscated by the king.
Yājñavalkya, however, provides banishment for such social offenders. Kauṭilya, the astute observer of men and affairs, gives a graphic description of measures to apprehend such an official, and like Yājñavalkya prescribes banishment for such criminals.41 Sikh texts are equally condemnatory. The Sri Guru Granth Sahib, Sikhism’s most authoritative text, teaches that “[t]he self-willed...
take bribes... [they] do not know the essence of reality.”42 As the eminent Sikh scholar Harbans Singh explains, “The main object of Sikh polity... is ‘righteous rule’. This can be achieved either by transforming the existing corrupt rulers on moral and ethical lines of religion through peaceful persuasions, or by replacing their corrupt rule by a ‘just’ regime....”43 Jainism is even more blunt: “Bribes [are] and Yang, 44 CUMB. L. REV. 423, 428 (2013–2014) (finding that American law makers and federal prosecutors draw bright lines when it comes to forbidding bribes, which is “inconsistent with Chinese economics” in part shaped by concepts like wu wei — “that efficiency is increased by the absence of resistance”).
39 Suen, Cheung & Mondejar, supra note 36, at 262.
40 See CHUANG TZU, MYSTIC, MORALIST, AND SOCIAL REFORMER 428 (Herbert A. Giles trans., 1889).
41 UPENDRA THAKUR, CORRUPTION IN ANCIENT INDIA 14 (1979) (citations omitted) (additional text added for clarity and understanding).
42 SRI GURU GRANTH SAHIB 1032 (Dr. Sant Singh Khalsa trans.), available at http://www.srigranth.org/servlet/gurbani.gurbani?Action=Page&g=1&h=1&r=1&t=1 &p=0&k=0&fb=0&Param=1032 (last visited Nov. 1, 2015).
43 DR. HARBANS SINGH, DEGH, TEGH, FATEH: SOCIO-ECONOMIC & RELIGIO-POLITICALFUNDAMENTALS OF SIKHISM 141 (1986). Harbans Singh was the first editor of The University of California, Davis 656 [Vol. 49:647 verily the door for the advent of all evils,” and “Those living on [bribes] cut even the breast of their mother.”44 Modern laws based on religion continue to proscribe corruption and bribery. The law of Iran, for example, is explicitly rooted in Islam.45 Both the constitution46 and the statutes47 of Iran prohibit corruption.
Saudi Arabia’s legal system is also based on Islam,48 and Saudi Arabia also strictly criminalizes bribery.49 The laws of countries such as Iran and Saudi Arabia are explicitly grounded in religion.50 The extent to which morality underpins the bribery laws of other countries is debatable and probably not Encyclopedia of Sikhism. See Roopinder Singh, Prof. Harbans Singh: A Gentleman Scholar, ROOPINDER SINGH (Jul. 9, 2013), http://www.roopinder.com/prof-harbanssingh-a-gentleman-scholar/.
44 SOMADEVA SURI, NITIVAKYAMRITAM 145 (Dr. Sudhir Kumar Gupta trans., 1987).
45 John Y. Gotanda, Awarding Interest in International Arbitration, 90 AM. J. INT’L L.
40, 48 (1996).
46 Article 49 of the Iranian constitution states:
The government has the responsibility of confiscating all wealth accumulated through usury, usurpation, bribery, embezzlement, theft,...
the operation of centers of corruption, and other illicit means and sources, and restoring it to its legitimate owner; and if no such owner can be identified, it must be entrusted to the public treasury. This rule must be executed by the government with due care, after investigation and furnishing necessary evidence in accordance with the law of Islam.
QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC OFIRAN] 1358  (emphasis added).
47 Most of the criminal laws of Iran are “experimental;” only Book Five of the criminal code has been permanently adopted. Islamic Penal Code of the Islamic Republic of Iran — Book Five, IRAN HUMAN RIGHTS DOCUMENTATION CENTER (July 18, 2013), http://iranhrdc.org/english/human-rights-documents/iranian-codes/1000000351islamic-penal-code-of-the-islamic-republic-of-iran-book-five.html. Chapter Eleven of Book Five deals with “Bribery, Usury and Fraud.” Id. The nine articles of Chapter Eleven deal with various aspects of bribery and corruption and together impose criminal penalties on those who bribe government officials. See id.
48 Courtney Jung, Ran Hirschl & Evan Rosevear, Economic and Social Rights in National Constitutions, 62 AM. J. COMP. L. 1043, 1069 (2014).
49 See Saudi Arabia: Anti-Bribery Law, 9 ARAB L.Q. 283, 283-87 (1994) (providing Saudi Arabia’s Anti-Bribery Law). Bribery is punishable by imprisonment and fine. See id.
50 See L. Ali Khan, The Qur’an and the Constitution, 85 TUL. L. REV. 161, 167-168 (2010). Khan points out that although the constitutions of these countries are grounded in and ultimately submissive to religion, there are many rules and structures that have nothing to do with religion. Id.; see also Abdullahi Ahmed An-Na’im, Religious Norms and Family Law: Is It Legal or Normative Pluralism?, 25 EMORY INT’L L.
REV. 785, 788 (2011) (“All state law, whether of Canada, Iran, Nigeria, Saudi Arabia, or any other state, is simply the product of the political will of that state and never of any religion.”).