«The Good Bribe Philip M. Nichols* Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment ...»
The notion that bribes paid to secure relief from repression is attractive. The argument in general, however, might not overcome the criticisms represented in the works of Klitgaard and Rose-Ackerman.
Although virtually impossible to measure, the overall harm generated by providing support to an authoritarian regime might outweigh the specific relief from harm secured by paying the bribe. The notion also comes dangerously close to undermining the relationship between the public and its government, in that individuals who do not agree with the choices of the majority might label such choices as repressive and use that “repression” as a justification for paying bribes.
B. The Good Bribe The life of Oskar Schindler has been documented, novelized, and portrayed in an award winning movie.163 In brief, Schindler was a German businessman and member of the Nazi party who moved to Poland shortly after the beginning of the Second World War. He acquired a factory and used his connections with the Nazi party to secure government contracts. His factory employed several Jewish workers, and eventually used the services of over a thousand Jewish workers. As the treatment of Jewish people became more savage, and particularly as the war approached its conclusion, Oskar Schindler protected these workers from abuse, torture, deportation, and death.164 He did so by using personal relations, through deception, and in 162 Susan Rose-Ackerman, Corruption: Greed, Culture, and the State, 120 YALE L.J.
ONLINE 125, 126 (2010), available at http://www.yalelawjournal.org/forum/corruptiongreed-culture-and-the-state.
163 See, e.g., DAVID M. CROWE, OSKAR SCHINDLER: THE UNTOLD ACCOUNT OF HIS LIFE,
WARTIME ACTIVITIES, AND THE TRUE STORY BEHIND THE LIST (2004); THOMAS KENEALLY,SCHINDLER’S ARK (1982); SCHINDLER’S LIST (Universal Studios 1993).
164 See generally CROWE, supra note 163 (providing a biographical account of Schindler’s life with a focus on what he did during WWII to help the Jewish people);
MIETEK PEMPER, THE ROAD TO RESCUE: THE UNTOLD STORY OF SCHINDLER’S LIST 126-31(David Dollenmayer trans., 2008) (describing Schindler’s actions to help rescue Jewish people from death at the hands of the Nazis).
University of California, Davis 678 [Vol. 49:647 particular by paying bribes.165 More than a thousand people survived an extraordinary horror due in large part to Oskar Schindler’s courage and guile, but also because he paid bribes. But were these good bribes?
The bribes paid by Oskar Schindler would seem to fall easily within the three tropes of reasons for which bribery is criminalized. As described earlier in this paper, Judaism — the religion of the people whom he saved — condemns bribery.166 The bribes undermined the system of governance in the Third Reich; Heinrich Himmler, the Reichsführer of the SS, was so concerned about corruption within the administration of the concentration camps that he assigned a judge as a special auditor to review the activities in those camps — including the camp from which Schindler rescued people.167 Schindler’s bribery clearly distorted production within the Third Reich; among other things he participated extensively in the black market and his munitions factory produced very little ammunition.168 Schindler’s bribes seem to be paradigmatically worthy of condemnation.
And yet they are not. Although Judaism condemns bribery, for the act of paying these bribes Oskar Schindler has been proclaimed by Yad Vashem, the Jewish People’s living memorial to the Holocaust, as “Righteous Among the Nations.”169 Nor are Schindler’s bribes the only bribes excused by Judaism: rabbis seem not to have condemned bribes paid to Ottoman officials by Jewish people who had been dispossessed by the Ottomans, so that those Jewish people could return to their homes.170 Schindler’s acts violated the law. Lon Fuller, however, has argued at great length that the laws of the Nazis were law in name only and failed to rise to the standards that would require others to think of it 165 Schindler reported that he paid $234,375 in bribes. CROWE, supra note 163, at
279. That amount would be worth $3,162,877 today. See also Daniel T. Ostas, Civil Disobedience in a Business Context: Examining the Social Obligation to Obey Inane Laws, 47 AM. BUS. L.J. 291, 298 (2010) (mentioning Schindler’s defrauding of Nazi officials);
Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 HARV.
L. REV. 761, 819 n.207 (2004) (mentioning Schindler’s bribes).
166 See supra notes 23–26 and accompanying text.
167 See Herlinde Pauer-Studer & J. David Velleman, Ethics of a Nazi Judge, AEON (June 2, 2015), http://aeon.co/magazine/philosophy/can-a-nazi-judge-have-a-conscience/.
168 CROWE, supra note 163, at 276, 438-39.
169 Schindler’s List: Oskar and Emilie Schindler, YAD VASHEM, http://www.
yadvashem.org/yv/en/righteous/stories/schindler.asp (last visited Oct. 28, 2015). The “Righteous Among the Nations” are also referred to as Righteous Gentiles.
170 See ARYEH SHMUELEVITZ, THE JEWS OF THE OTTOMAN EMPIRE IN THE LATEFIFTEENTH AND THE SIXTEENTH CENTURIES 50-51 (1984) (noting that these bribes were recorded by rabbis in a manner that allowed them not to be called bribes).
The Good Bribe 2015] 679 as law.171 It would have been ludicrous to have demanded that Schindler be put on trial for bribery.172 Similarly, the laws of the United States regarding escaped slaves were patently unjust, and violation of those laws constituted civil disobedience.173 At least one bribe was paid by the Underground Railroad, which rescued people from the horrors of slavery.174 Yet the conductors of the Underground Railroad are regarded as heroes.175 The legal system of the Third Reich is not, of course, the only legal system that presents these issues. The legal system of North Korea is also used primarily as a tool of the authoritarian regime.176 Interestingly, bribery seems to be widespread in North Korea; not just to acquire the freedom to interact in an oppressive regime,177 but also to escape from that oppressive regime.178 Schindler’s bribes distorted the Nazi economy and its productive capabilities. Nonetheless, Schindler’s sabotage is lauded as heroic.179 Schindler was not, of course, alone in his sabotage; resistance groups throughout the parts of Europe administered by the Nazis attempted 171 See Lon L. Fuller, Positivism and Fidelity to Law – A Reply to Professor Hart, 71 HARV. L. REV. 630, 653-57, 661 (1958).
172 See R. George Wright, Is Natural Law Theory of Any Use in Constitutional Interpretation?, 4 S. CAL. INTERDISC. L.J. 463, 486 (1995) (noting the obvious moral problem with interfering with Schindler’s rescue operations).
173 See KERRY WALTERS, THE UNDERGROUND RAILROAD: A REFERENCE GUIDE 122-23 (2012) (describing “civil disobedience” to “unjust slave laws”); Sanford Levinson & J.M. Balkin, The “Bad Man,” the Good, and the Self-Reliant, 78 B.U. L. REV. 885, 895 n.29 (1998) (quoting and referring to Ralph Waldo Emerson’s disgust with slave laws).
174 See WILLIAM J. SWITALA, UNDERGROUND RAILROAD IN PENNSYLVANIA 2 (1st ed.
2001) (describing a bribe paid in the transportation of Henry Brown from slavery to freedom).
175 See Joseph G. Sansone, Preface to A. Leon Higginbotham, Jr., My Metaphorical Journey on the Underground Railroad, 67 U. CIN. L. REV. 761, 761 (1999) (referring to “the heroism of the Underground Railroad’s conductors”).
176 See, e.g., Darren C. Zook, Reforming North Korea: Law, Politics, and the Market Economy, 48 STAN. J. INT’L L. 131, 148 (2012) (stating that the “sole function [of courts in North Korea] seems to be to facilitate the exercise of power in the interest of the state”).
177 See generally Byung-Yeon Kim, Markets, Bribery, and Regime Stability in North Korea 19 (EAI Asia Sec. Initiative, Working Paper No. 4, 2010), available at http://184.108.40.206/data/bbs/eng_report/2010040811122565.pdf (discussing widespread bribery in North Korea).
178 See MIKE KIM, ESCAPING NORTH KOREA: DEFIANCE AND HOPE IN THE WORLD’S MOSTREPRESSIVE COUNTRY, at xi (2008) (noting that “[b]order guards are freely taking bribes to let people cross the China-North Korea border”).
179 See Natalie Pompilio, Oskar Schindler: Unlikely Hero, LEGACY.COM (Jan. 27, 2015), http://www.legacy.com/news/legends-and-legacies/oskar-schindler-unlikelyhero/2265/./ (describing Schindler’s actions to help Jews during the WWII Holocaust).
University of California, Davis 680 [Vol. 49:647 to disrupt the Nazis.180 These groups were not condemned by other citizens; instead, pride in these groups became an integral part of the reconstruction of the European psyche following the end of the war.181 Schindler’s bribes fit within the three tropes of reason for criminalizing bribery in only the most superficial way. Schindler’s bribes also elude the general critiques of the authoritarian regime justification for bribery. Corruption was rampant in the Third Reich.182 The means through which Hitler acquired and maintained power are the subject of debate, but the charisma that he exercised over the German people seems to have played an unusually important role.183 This is markedly different than, for example, Leonid Kuchma’s reign in Ukraine, during which “corruption and illegality among the elite were accepted, condoned, and even encouraged by the top leadership, resulting in a general atmosphere of impunity.”184 It would be difficult to argue that the bribes paid by Oskar Schindler to local Nazi officials prolonged Adolf Hitler’s regime.
The other cautionary note regarding the justification of bribes paid under authoritarian regimes is that it is sometimes difficult to distinguish an authoritarian regime from a flawed democracy. That is not the case with respect to the Third Reich. The Third Reich has become the paradigmatic dictatorial regime, in ways to which flawed democracies could never aspire. Michael Berenbaum describes the Holocaust as a “negative absolute.”185 He explains: “In a world of moral relativism, the Holocaust has taken its place as an absolute. We may say we don’t know what is good or what is bad. But we do know that the Holocaust was evil, absolute evil.”186 The dissatisfied members of a democracy identified by Rose-Ackerman complained of 180 See, e.g., Gordon Wright, Reflections on the French Resistance (1940–1944), 77 POL. SCI. Q. 336, 336 (1962) (noting resistance groups).
181 Id. at 337.
182 See Richard Bessel, Introduction to LIFE IN THE THIRD REICH, at xvi (Richard Bessel ed., 1987) (“The day-to-day reality of the Third Reich involved a complex mixture of fear and bribery....”).
183 See Ian Kershaw, Hitler and the Uniqueness of Nazism, 39 J. CONTEMP. HIST. 239, 245-46 (2004) (arguing that Hitler was the “indispensab[le]” component of the Nazi regime and describing the bond between Hitler and the German people as “quasireligious”).
184 Keith A. Darden, Blackmail as a Tool of State Domination: Ukraine Under Kuchma, 10 E. EUR. CONST. REV. 67, 68 (2001).
185 Michael Berenbaum, Who Owns the Holocaust?, 25 MOMENT 60 (December 2000), available at http://search.proquest.com/docview/228023966/fulltext/A80A0FDBA2DE4 A8FPQ/15?accountid=14707.
The Good Bribe 2015] 681 government policies such as safety regulations, taxes, and equality laws. These seem trivial when compared to the horrors from which bribery saved the Schindlerjuden. Schindler’s bribery saved people from slavery, torture, and death, not from paperwork. The two sets of complaints are easily distinguished, as are the governments that promote them. Acknowledging the justification of Schindler’s bribes does not open a door to subversion of a democratic government.
Having determined that Schindler’s bribes were justified, it does not seem that they themselves represent any trope of thinking or any easily identifiable category of bribes. Rather, Schindler’s bribes seem to rise above the traditional reasoning for criminalizing bribes. Moreover, the context in which these bribes were paid is so clear as to avoid the sorts of concerns that attach to arguments that bribes may sometimes be paid in authoritarian regimes. Schindler’s bribes do not present a new checklist, a formula for a good bribe. Rather, they serve as a stark lesson that in extraordinary circumstances a bribe can be justified.