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Tuesday
Dec042012

How should we define corruption? (Part II)

In my last post, I suggested that we really ought to define corruption. Though UNCAC declines to do so, others have taken up the challenge. We have two definitions in wide circulation today, but I'd argue that neither serves us well.

The first I will call the IGO/NGO definition, thus named because the World Bank and Transparency International both use variations of it. You'll recognize it, because it is probably the most often-cited definition of corruption. It is, "the abuse of public office for private gain," or minor variations thereon. The definition has a proud intellectual legacy, dating back to Watergate (much like the FCPA, of course) when various academics sought to broaden the operational definition of corruption to include newly-discovered species. But as one critic then said, this definition "sacrifices clarity to brevity."  

In other words, it is too nebulous, and potentially includes far too much. Consider the political candidate who changes his position to win the support of a targeted voting demographic; or the elected government official who votes against her conscience to placate a donor; or the enforcement official who, in the exercise of prosecutorial discretion, treats two defendants differently because one is cozier with the government. Each of these may well cause offense or disgust, and each may be deemed “corruption” in the above sense of the word. But, for better or for worse, all are extraordinarily common and and there is little movement toward criminalizing them. Most of us choose to live with them, resigned as we may be to human and institutional imperfection. So while the definition may have a role in the broader anti-corruption discourse, it is not particularly useful for legal purposes.

The second common definition comes from Black's Law Dictionary: "a fiduciary's or official's use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others." Curiously, as far as I can tell no U.S. court or law-making body every formulated this definition — Black's made it up, a sort of distillation of sundry case law. The problem is that it suggests only two kinds of corruption: the breach of fiduciary duty, and the abuse of official position. Isn't that too narrow? Consider the a sole proprietor who bribes a government official. We'd call that corruption, but the sole proprietor is neither a fiduciary nor an official. In other words, the definition requires a principal/agent relationship for supply-side corruption. But we would generally consider bribe-paying corrupt irrespective of any fiduciary breach, or whether a fiduciary relationship exists at all. Indeed, part of the U.K. Bribery Act's reform of older British law was to remove the principal/agent requirement from its corruption laws generally.

So how then should we define the term? In my next post, I'll try. Stay with me.

___________

Andy Spalding is a senior editor of the FCPA Blog.

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