“I know it when I see it,” said Justice Potter Stewart of the U.S. Supreme Court. Though he was talking about obscenity, the same could probably be said of corruption as well.
Still, we in the FCPA blogosphere talk about corruption an awful lot. What do we mean by that term? If we are to discuss its policy implications, don’t we need an operational definition? In this three-part series, I’m going to discuss three approaches to the definitional problem, tell you why I think each does not quite work, and then provide a new definition of my own. Comments on this series are most assuredly welcome.
First, a clarification. I am here seeking to define corruption (the noun) and not “corrupt” or “corruptly.” These latter terms typically describe a mental state, and are an element of a crime — including, of course, bribery under the FCPA (which requires a showing of a corrupt intent). Many cases, in many areas of law, define these terms. But it’s not what we’re after here. We’re going to talk about conduct, not mental states; we’re going to define the noun, corruption.
The first definitional approach we might call the Justice Stewart approach. Or we might call it UNCAC’s. This is to talk about corruption without ever defining it. UNCAC uses the term in its title — the UN Convention Against Corruption. And the convention talks specifically of various forms of corruption — bribery, money laundering, embezzlement, trading in influence, etc. Although it typically defines each of these specific forms of corruption, nowhere does the document actually define corruption. That’s probably a safe approach — perhaps UNCAC’s drafters felt that more harm than good could come from defining a term that is not itself a discrete form of prohibited conduct. But it leaves the rest of us in the lurch.
So we’ll set out in search of a more satisfactory definition. In my next post, I’ll go through two definitions — what I’ll call the IGO/NGO definition, and the Black’s Law Dictionary definition — and explain why I think neither serves us well in this, an era in which bribery is the quintessential form of illegal corruption. In the third and final post, I’ll take a stab at formulating another definition. And I’ll hope for comments. Stay tuned.
Andy Spalding is a senior editor of the FCPA Blog.