The FCPA’s Imperialist Myth

Elizabeth Spahn (left), a professor at the New England School of Law, stopped by this week. She left a comment about Andy Spalding’s latest post. In it, she cited her recent article that asks: Why is there so little legal scholarship regarding international bribery? Why aren’t law professors training their students on the issue? Why, she asks, don’t legal educators want to talk about international anti-corruption initiatives?

The answer, she says, is tied up with false notions in the West about legal imperialism. Law professors (she’s been one since 1978) shy away from teaching about bribery abroad “because of a well intentioned discomfort with the idea of imposing Western moral values on cultures and systems vastly different from our own.” In 72 pages of clear and exciting prose, she explores — and debunks — the idea that the Foreign Corrupt Practices Act and other anti-bribery initiatives are bad for anyone except those who are caught and punished.

Prof Spahn was a Fulbright professor at Peking University Law School and the Beijing Foreign Studies University during 1999–2000, lecturing on American constitutional law and employment law. In 2005, she returned to China as a Fulbright senior specialist in Chongqing. The corruption she saw in Asia left her in no doubt about what’s wrong and what has to be done:

A global “culture of corruption” has indeed arisen. . . . It directly affects the safety of ordinary consumers throughout the world who depend on imports from a wide spectrum of MNCs doing business in countries with high levels of corruption and weak legal regimes. It directly undermines environmental reform technology and clean up efforts globally. It frustrates efforts to achieve very basic human rights. Bribery skews purchasing decisions making a mockery of any hope of a rational market. If the economists are to be believed, bribery significantly exacerbates the growing global gap between the unimaginably rich and the desperately poor.

Prof Spahn has the courage to put her heart into her scholarship. Having real people in mind elevates her words and her message. Listen to this:

My own attention was directed to anti-corruption reform at the very beginning of my field work in Asia. Before entering China to teach law, I decided that I should learn more about rice in order to better understand the root of Asian culture. I spent six weeks in Bali, Indonesia (an idyllic setting). One week I spent in a village without running water or electricity, vainly attempting to learn how to plant rice. At the inevitable banquet, on the night before I, as a Western “imperialist human rights feminist rule of law” advocate, was nervously to enter Communist China, I chatted with the patriarch of the Balinese family, a gracious elderly farmer who was blind due to cataracts he knew could be cured by Western surgery if only the money were available.

“What one thing would help his family most?” I asked. I anticipated several potential answers: running water, better medical access, perhaps electricity run into the village (I had already provided the all-important new soccer ball for the village kids as my thank you gift). His answer was that if only the corruption could be eliminated or even just reduced, his family, his village, could manage the rest on their own. This was the beginning of my true education about Asia.

Eighteen months later, at the end of my long stay in China, I was no longer nervous. (The saying is that you visit China for two weeks, you write an article; you visit for six months and write a book. After a year you can no longer speak at all. After a year and a half immersion, my connection to Chinese culture was firm, and I was pretty much speechless.)

Walking around elite Peking University’s beautiful Nameless Lake for the last time with one of my very favorite Chinese students of all time, who is perhaps the last of the genuine true believers in Marxism and the Party, I asked what topic I could work on that might really help Chinese people. “Corruption,” he said.

The simple Balinese rice farmer and the elite Peking University Party Member agreed. And so this human rights /rule of law advocate turned her attention to corruption. Seven years of hard study later, I must say they were both correct. I am grateful to both of them for my education and happy to have my speech back.

Elizabeth Spahn’s article, “International Bribery: The Moral Imperialism Critiques,” 18 Minn. J. Int’l L. 155 (2009), can be downloaded here.
.