Preventing Corruption

Investigation, Enforcement and Governance

G. Brooks, D. Walsh, C. Lewis, H. Kim

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137023865
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This book reveals the extent, types, investigation, enforcement and governance of international corruption. Providing a unique international coverage, it reveals the limits of current anti-corruption strategies and explores the involvement of western democratic states in corruption.

Part I

Defining, Measuring and Explaining Corruption

1

Defining Corruption

Introduction

Various interpretations of corruption exist around the world (Rose-Ackerman, 1996; Iyer and Samociuk, 2006). This has led to a consistent understanding that there is no agreement on a conclusive definition of the term. In this chapter the problems encountered when trying to forge a consistent and unambiguous meaning of corruption will be discussed, examining the concerns with a number of past attempts from various disciplines such as law, economics, social and political science, as well as those of bureaucratic foundations. Types and forms of corruption will also be covered in order to provide an awareness of the breadth of its manifestation. The chapter will further demonstrate that many factors, including environmental ones, converge to undermine attempts to provide a definitive version of corruption, particularly when studying the issue from a global perspective. It will be noted that, as a result of the identified obstacles rooted deeply in the pathway of clarification, not only does providing an unequivocal definition of corruption remain elusive but it also provides challenges for law and policy makers, and law enforcement organisations, among others. Corruption should therefore be viewed as a complex and multifaceted phenomenon, with a multiplicity of causes and effects, as it exhibits many different forms and functions in very diverse contexts, ranging from a single act that transgresses a law or laws, to being a way of life for an individual, group of people, and/or societal order, which is morally acceptable.

Problems of definition

Corruption is frequently viewed as an emotionally laden concept that invariably leads to universal condemnation; it is declared to be one of the worst diseases of mankind by the Organisation for Economic Co-operation and Development (OECD) (2005). These reactions to corruption as a disease that is, therefore, perhaps seen as contagious may reasonably provide some confidence that there is agreement on the adverse effects of corruption. In spite of this apparent concordance, much less harmony is achieved when attempting to define what the term ‘corruption’ actually means. Indeed, according to the United Nations’ Global Program against Corruption, there is no single, comprehensive, universally accepted definition of corruption (UNODC, 2004). Milovanovic (2001: 1) cites that corruption is derived from the Latin word corruptio (meaning ‘moral decay, wicked behaviour, putridity or rottenness’). As such, this explanation provides some clues as to how a society’s rules are integral to defining corrupt behaviour. However, regardless of the country, such a definition lacks specificity. Furthermore, corruption overly focuses upon acts of bribery. Additionally, while bribery may be regarded as the dominant act of corruption, with Lowenstein (2005) describing it as the ‘black core’, there has not been any accord when conceptualising why it is harmful. Unlike crimes that are regularly found in media reporting (such as homicide, sexual offences, and robbery), victims may not be so obviously affected and, thus, identified. Acts of bribery may affect taxation, laws and markets, but these can tend to result in a dispersed form of victimisation. This lack of visibility regarding any harmful effects of bribery can complicate efforts to define corruption and thus criminalise it. It is therefore argued that focusing upon bribery when trying to understand corruption overlooks its breadth and complexity.

Definitions pertaining to the moral decay that corruption may engender are also likely to provide consensus when discussing its effects but continue to cause difficulty when determining its meaning. As will be seen in this chapter, corruption has many facets and a focus upon morality alone will not necessarily assist those from a social science foundation who are more prone to focus upon behavioural indicators and manifestations in connection with the benefits to society of reducing the incidence of corrupt behaviour.

It has therefore consistently been found a challenging enterprise when attempts are made to provide a clear definition of corruption – such is its complex and contextual nature (Johnston, 1996). The extant literature also commonly defines corruption as ‘the abuse of public power, roles or resources for private benefit’ (Tanzi, 1998; Amundsen, 2000; Johnston, 2005; Kurer, 2005). This definition has also been utilised by Rose-Ackerman (1978), who argued that corruption exists at the interface of the public and private sectors. Médard (1986) has further remarked that the Weberian distinction between public and private sectors is the foundation of non-corrupt politics and administration. Nonetheless, this definition is seen as problematic. That is, it appears to be largely reliant upon a universal definition that has emerged from a typical Weberian acceptance of largely western bureaucratic models that show clarity in the demarcation between public and private spheres. However, in the developing world (where corruption has been argued to be more endemic) such dichotomisation between the public and the private is not always so obvious or even acknowledged. Further, since corruption can be found also in other areas such as in trade and commerce, and in sport (Brooks et al., 2013), education, politics and government, Johnston’s (2005) definition provides only a partial clarification of the term.

The implicit assumption that a clear distinction exists between public and private sectors is thus predicated on a widely shared consensus in society, and that the existing legislative systems also sympathise with this distinction through the creation and enforcement of criminal or civil laws. However, as has been noted, in the developing countries particularly (but not necessarily only there), there is a blurred distinction between the public and private, which can result in problems with law enforcement. The ambiguity between private and public roles, interests and domains often corresponds to high levels of corruption (Jowitt, 1983; Wedel, 2001; Johnston, 2004).

Andvig, Fjeldstad, Amundsen, Sissener, and Søreide (2000) have also argued that corruption exists within and between organisations and individuals who inhabit the private sector and also nongovernmental organisations, exclusive of any involvement of any individual or authority from the public sector. Regardless of this conceptual wrangle, most definitions of corruption continue to emphasise it as a state–society relationship because public sector corruption is believed to be a more fundamental problem than private sector corruption, and because controlling public sector corruption is a prerequisite for controlling private sector corruption. Essentially, good governance in the public sector acts as a role model.

Nye (1967), for example, has postulated that corruption represents an individual’s financial or reputational gains when deviating from their formal public responsibilities or role. However, this public sector emphasis is still subject to ambiguity. A public official may gain no explicit personal advantage, for example, if by certain actions their racial, ethnic, tribal or religious group benefitted. In this case, would the individual be regarded as corrupt? Nye’s perspective would indicate that it should, yet others may regard that the individual acted altruistically and even in the ethos of merit-worthy public service. However, this example prompts the question as to whether corruption is contextually or culturally dependent or can universal norms exist for such illicit behaviour. This apparent conundrum may have been the reason why Nye deliberately omitted issues of public interest and morality from his definition.

Returning, for the meanwhile, to other definitions of corruption, major international authorities have also attempted to capture an operational interpretation of corrupt activity. For example, the UN Convention against Corruption, described corruption as:

(t)he promise, offering or giving to (or the solicitation or acceptance by) a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

(UN Convention against Corruption, 2005)

In turn, in its ‘Civil Law Convention on Corruption’, the Council of Europe (1999) defined corruption as ‘requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behaviour required of the recipient of the bribe, the undue advantage or prospect thereof’.

The anti-corruption agency, Transparency International (TI), states that the term is encapsulated operationally as the misuse of entrusted power for private gain. One of the issues raised by the TI definition is discussed by Ewins, Harvey, Savage, and Jacobs (2006); these authors (in the specific context of corruption in the matter of humanitarian aid) argue that TI’s definition means having to grapple with contentious issues such as understanding where power is situated, what would be regarded as misuse, how power itself has been entrusted and to whom, and finally what the term ‘private’ means.

TI’s definition has been used in many official reports on corruption; it remains important, however, to emphasise that corruption may include ‘gain’ that is not just limited to financial abuse but can also include the abuse of power to enhance personal or organisational reputation or for political purposes; preferential treatment, cronyism in recruitment practices; and sexual exploitation. There is also the matter of considering the type of relationships between any organisational and individual gain. In a commercial setting, individuals may, for example, engage in corruption to promote their company and consequently gain for themselves through increases in the value of their shareholdings or their business reputation. In the context of public service, the motivation of employees to engage in this kind of corruption is arguably less directly financial since the focus can be much less on monetary profit, thus, reducing the potential for gain in the same way, in contrast to their commercial counterparts. Regardless of these apparent fundamental differences, personal gain of some kind may well be the source of motivation for individuals to engage in acts of corruption. Moreover, as with Johnston’s (2005) definition, TI’s attempts to conceptualise corruption again do not cover adequately the whole range of corruption such as that conducted by officials in wider interests than just the personal, for example, in the context of a political party, business organisation and even a country, which thus does not pertain just to individual interests.

Law, politics and culture: Competing definitions?

Williams (2000) has suggested that defining corruption is hampered by competing approaches, aims and needs of both analysts and policy makers. A resolution to this problem might be in applying a strictly legal definition or at least one that is based on a formal set of accepted rules. However, this approach also falls short of comprehensiveness of meaning, as the law does not always accommodate society’s views of corrupt behaviour that may not necessarily coincide with such legal definitions. Williams (1999) noted that earlier definitions of corruption tended to be based around legal principles. The problems with this approach become quite obvious when understanding how those with powerful influences shape the creation and operation of the law, which can result in justifying inertia in the law when any changes in legislation would conflict with their own interests. In light of this argument legal definitions of corrupt acts come to be viewed as an inappropriate yardstick but they might be more suitably defined as measures of the influence of power than any corruption benchmark (Hasnas, 1995). This line of critical legal argument and those of legal realism build on the criminological literature, notably the seminal work of Becker (1968). Indeed, Pellegrini (2011) notes that in some countries the worst transgressors in regard to corruption are the very agencies that operate the system of crime control and punishment.

Regarded by those following a legal tradition in defining corruption as a classical definition, Nye (1967: 416) argued that corruption is ‘behaviour that deviates from the formal duties of a public role (elective or appointive) because of private (personal, close family, private clique) wealth or status gains’. Nye, and others (i.e., Khan, 1996) who advocate this interpretive stance, however, have failed to capture the evolving nature and imprecision of both law and formal rules. Johnston (2004), in this regard, has remarked upon the vagueness, and (particularly when considering corruption from a more trans-national perspective with the involvement of more than one jurisdiction) the contradiction that can exist with different laws that can undermine any legitimacy. Johnston also points out that basing a definition on laws does nothing to aid comparison, even within a nation. Given these concerns it is perhaps ironic that Nye primarily attempted in his explanation to provide an opportunity for such comparisons to be made but, despite some merits in his definition, he failed to recognise sufficiently that law must be subject to change, just as society itself can change over periods of time.

Other matters can also beset legal definitions; Jensen and Meckling (1976) proposed a principal-agent theory. This theory relates to where the ‘agents’ (in the context of this discussion, the politicians and legislators) may abuse the opportunities afforded by their discretionary power. This abuse is more likely to occur when there is, in regard to the ‘principal’ (that is, the electorate, the community or, indeed, the public at large), an incoherent interest present. In many developing countries, such as those from Africa or the Indian sub-continent, this incoherence is partly the result of social divisions (i.e., tribal, ethno-linguistic dimensions, religion and urban-rural distinctions), and economic divisions (i.e., the huge disparity between rich and poor). Thus, the changing nature (and, indeed, the diversity) of public opinion both within and across nations can, therefore, render any legal approach to defining corruption inadequate.

Furthermore, when attempting legal definitions, without an internationally agreed definition, there is difficulty in undertaking operational measures derived from anti-corruption strategies. A legal definition also requires, by its own definition, that the corrupt behaviour should violate a principle of legality. However, not all illegal behaviour is corrupt, and, conversely, not all corrupt behaviour is illegal. It would be a misconception to confuse what is corrupt with what is illegal. Social norms are defined by values, as are laws, but they do not necessarily emerge from equivalent ideologies or foundations. Perceptions of what constitutes corruption, as has been argued, thus may vary between contexts and on the part of different actors. Rose-Ackerman (1978: 78), for example, neatly sums this up: ‘One does not condemn a Jewish person for bribing his way out of a concentration camp.’ This suggests that what one views as corruption may also be conditional upon environmental factors.

In examining different cultural factors across the world, it can continue to be found that legal definitions are unsatisfactory. For example, Olivier de Sardan (1999) argues that there are far more extensive solidarity networks in Africa than in Europe. As such, African families are ‘widely extended and replete with pressures and solicitations which can hardly be ignored. Links created within peer groups (primary school, secondary school, and college friends) last until retirement.’ Olivier de Sardan (1999: 40) also reveals that equally as durable are the solidarities that arise from associations, churches and parties, and discusses just how powerful these binding relationships actually are in practice, thus: ‘(these relations) including an almost general obligation of mutual assistance. One cannot refuse a service, a favour, a bit of string-pulling or compliance to a relative, neighbour, party comrade or friends …. The circle of individuals to whom one feels obliged to render services is thus astonishingly wide.’ The loss of reputation and other repercussions from failing to adhere to such obligations is severe within the community. In contrast, in post-colonial settings, with the populace in countries viewing themselves as having been defined by the colonial powers, there may well be less loyalty to bureaucracies, less social capital, more poverty (and thus less reliance upon services that the government should provide). In this context, bribery and corruption through the powerful network of obligations is both widespread and inevitable.

Definitions therefore tend to be either too generic or too narrow. This may be indicative of the problem that what the public regards as acts of corruption can at times shift from tolerance to outrage, reflecting our rapidly changing societies. As such, a clear and unequivocal view of what are acts of corrupt behaviour (and what are not) is not always apparent and, in this regard, a broad definition of corruption could be unsatisfactory, but may be the most suitable or viable option (Johnston, 2005: 11). Elusiveness persists, which Williams (1999: viii) attributes to an ‘absence of a fixed disciplinary allegiance’.

In this latter regard, studies of corruption have led to contributions from academics and scholars from such diverse fields as criminology, economics, political science and law which reflect that corruption is a multi-disciplinary enterprise. However, Torsello (2011) notes that anthropologists have paid the concept much less attention since (as has been noted) contemporary concepts of corruption have emerged almost exclusively from western traditions. Notwithstanding Torsello’s views, from this otherwise multivariate involvement of academic disciplines, it should not be too surprising that such opacity exists when attempting a concise definition of corruption.

A further reason might relate to the interests of those providing definitions. The outcome of such ideologically inspired contestations can lead to a state of confusion between public sector organisations and international institutions. This can lead to problems in either devising effective strategies to deal with the problem or calibrating the effects of corruption since the foundation of any efforts in this regard can be fundamentally flawed. For example, defining corruption as a public sector phenomenon is, as has already been noted, too simplistic and narrow, yet economists may persist with this notion to argue the case that a contraction of the public sector will necessarily lead to a reduction in the level of corruption. Pellegrini (2011) argues that such an approach is fallacious and will lead to unsuccessful government policies. In contrast, it is believed that Osoba (1996: 372) has provided an insightfully thoughtful definition that carries with it a comprehensiveness that overcomes some of the concerns with other definitions and yet incorporates the importance of society’s values:

a form of antisocial behaviour by an individual or social group which confers unjust or fraudulent benefits on its perpetrators, is inconsistent with the established legal norms and prevailing moral ethos of the land and is likely to subvert or diminish the capacity of the legitimate authorities to provide fully for the material and spiritual well-being of all members of society in a just and equitable manner.

Forms of corruption

When discussing the main forms and notions of corruption, the challenges from legal (and other) perspectives remain in regard to the differing shades of interpretation. Notwithstanding this problem, what follows refers to as much common understanding as can be arrived at regarding the present state of terminology. However, it should be considered that these terms, while overlapping and interchangeable, are not a comprehensive review, with the other forms of corruption that are mentioned.

Bribery: Bribery refers usually to the payment of money or other goods in kind that is provided or taken within a corrupt relationship. A bribe can, for example, be a fixed amount, a certain percentage of a contract, or any other favours in money or kind, usually paid to an official who can make contracts on behalf of the state or otherwise distribute benefits or favours to companies or individuals...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables
• Series Editor’s Introduction
• Introduction
• Part I: Defining, Measuring and Explaining Corruption
• Part II: Limits to Legislation, the Exposure and Sanctions Available to Punish Corruption
• Part III: State Crime, State Capture and Private Sector Corruption
• Final Reflections
• References
• Index