With last week’s landmark Supreme Court case in Kiobel, the world is talking about corporations and human rights. But anti-bribery statutes typically aren’t mentioned.
The prevailing wisdom is that bribery, and corruption, do not really violate rights; they merely provide the means by which other rights are violated.
But I disagree. And I think I’ve got John Locke on my side.
Bribery does indeed violate a human right: the right to a liberty that can be realized only in civil society, where the government confers benefits in accordance with standing laws, common to everyone, and directed to the common good. It is the right not to be under “the arbitrary will of another.” The violation of this right voids the social contract, destroys civil society, and returns humankind to the state of nature. Indeed, John Locke claimed that abusing public office for private gain was the very definition of tyranny.
And so it follows — indeed, it may be what Thomas Jefferson called a self-evident truth — that corporate bribery violates our natural rights to freedom and legitimate government. Where corporations bribe governments to bypass health, safety, and environmental regulations, or to import goods and personnel in violation of customs laws, or to buy a workaround of the judicial process, they have contributed to the erosion of civil society and the destruction of the social contract. They put their competitors, and all citizens, under the arbitrary will of another. They help perpetuate a condition in which government officials exercise authority by personal whim for their own private gain rather than for the public good and by duly promulgated law. This is precisely what Locke meant by the state of nature, and it’s where bribery leaves us.
But I contend in this paper that if we recognized the rights implications of corporate bribery, we’d enforce the FCPA differently — just as rigorously, to be sure, but differently. I’ll spend the remainder of this series explaining why, and how.
Andy Spalding is a senior editor of the FCPA Blog.