«The Good Bribe Philip M. Nichols* Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment ...»
Although extraordinary, similar circumstances exist today. In North Korea the Human Rights Council of the United Nations found “systematic, widespread and gross human rights violations... [that i]n many instances... constitute crimes against humanity.”187 The council ominously noted that “[t]he gravity, scale and nature of these violations reveal a State that does not have any parallel in the contemporary world.”188 In Eritrea the council found “systematic, widespread and gross human rights violations” and that “[t]he enjoyment of rights and freedoms are severely curtailed in an overall context of a total lack of rule of law.”189 In Syria, the council found “gross violations of human rights and the war crimes of murder, torture, rape, sexual violence and targeting civilians.”190 Islamic State has “carried out ethnic cleansing on a historic scale in Northern Iraq” and has “subjected [women and girls] to rape or sexual abuse, forced [them] to marry fighters, or sold [them] into sexual slavery.”191 Repression and brutality exist elsewhere.192 187 Human Rights Council, Rep. of the Comm’n of Inquiry on Human Rights in the Democratic People’s Republic of Korea 15, U.N. Doc. A/HRC/25/63; GAOR, 25th Sess.
(Feb. 7, 2014).
189 Human Rights Council, Rep. of the Comm’n of Inquiry on Human Rights in Eritrea 14, U.N. Doc. A/HRC/29/42; GAOR, 29th Sess. (June 4, 2015).
190 Human Rights Council, Rep. of the Indep. Int’l Comm’n of Inquiry on the Syrian Arab Republic 20, U.N. Doc. A/HRC/30/48; GAOR, 30th Sess. (Aug. 13, 2015).
191 AMNESTY INTERNATIONAL, ETHNIC CLEANSING ON A HISTORIC SCALE: ISLAMICSTATE’S SYSTEMATIC TARGETING OF MINORITIES IN NORTHERN IRAQ 4, 20 (2014).
192 See FREEDOM HOUSE, FREEDOM IN THE WORLD 2015, at 20 (2015) (listing Central University of California, Davis 682 [Vol. 49:647 It is likely that an analysis of bribes paid to extricate persons from any of those conditions would be found to be as justified as those paid by Schindler. The condition of the world in the future is unknowable, and that world might present conditions that cannot be described today. It is possible that those conditions too might constitute circumstances that justify the payment of bribes.
CONCLUSIONGiven the nature of legal writing, at some point this article will be cited as claiming that bribery is good. That is not at all the point of this article. There are important reasons for criminalizing bribery, and bribery is in almost all cases unjustifiable. Both ancient and modern moral norms, from all corners of the world, condemn bribery. The law reflects this moral disapprobation. Bribery undermines the connection between people and their systems of governance. Law, an integral piece of those systems of governance, attempts to protect that connection by preventing bribery. And bribery inflicts severe harms on people, preventing them from fulfilling themselves as humans, and thwarting mechanisms such as markets or social programs that could improve their lives. A vibrant and active transnational legal regime has evolved to counter these pernicious effects.
Most attempts to justify the payment of a bribe have no merit. The most common claim, that the payment of a bribe will allow the conduct of business, survives neither empirical nor moral scrutiny.
Arguments regarding optimal levels of corruption are not arguments for bribery, and defy measurement in the real world.
Unlike claims of business necessity or administrative efficiency, a claim that a bribe might be paid in an authoritarian regime elicits some degree of sympathy. In most cases, however, such a claim must be treated with caution. In some cases such bribes might actually prolong the existence of the authoritarian regime. Moreover, acknowledging such bribes as justified might lead to a slippery slope in which persons dissatisfied with non-authoritarian regimes might claim that they can pay bribes to escape from policies or practices with which they disagree.
In extraordinary circumstances, however, a bribe may be justified.
The bribes paid by Oskar Schindler to save the Schindlerjuden present just such a circumstance. These bribes literally purchased life from a
brutally oppressive regime. They are recognized as moral. They did little damage to an already broken system. And the local harm that they inflicted paled in comparison to the overall benefit.
The Nazi regime was a paradigmatically oppressive regime.
Unfortunately, however, oppression is not a unique or even rare phenomenon. It is not to be hoped for, but the world will probably create other circumstances that justify the payment of a bribe.