Andy Spalding: On gift giving, the rule of law, and the human heart

Prof Andy SpaldingThe anti-corruption movement is plainly a global net gain. We’re working together to make economies more efficient, governments more representative, companies more ethical, and people more trustworthy and trusting. 

But as with any major change, it comes at a cost. This is not to say or even imply that the cost outweighs the benefit; not at all. But how do we understand that cost, particularly in countries where anti-corruption reforms are most radical?

Consider South Korea, which recently enacted a watershed anti-corruption law (the Kim Young Ran Act) that confronts a centuries-old tradition of gift-giving. By many Koreans’ own account, these gifts often served to thinly disguise the purchasing of influence. Their prohibition is thus a step forward in the anti-corruption effort.

Uniquely, the act defines the prohibited recipients to include journalists, teachers, and university professors. Interviewing a young (and partly western trained) academic at one of Korea’s elite universities, I was shocked to find him speaking of this new law with a strange sort of bitterness, even resentment. It took me some time to figure out why.

Some gifts to Korean professors may well have been intended to purchase grades. But not all, and not only.  So too were gifts – alternatively, or even simultaneously — gestures of genuine respect and a symbolic affirmation of the professor’s social status. The new prohibition on these gifts thus had two effects: it clamped down on the purchase of undeserved grades; and it deprived this professor of a social status he had worked many, many years to attain. This was his pain.

Korean culture may well adapt and find alternative ways to symbolically affirm social status without corrupting education. As another Korean corporate lawyer told us, the Kim Young Ran Act “forces us to find new ways to express our feelings.” But in the meantime, a pain is felt. It may well be a growing pang.

But sometimes growth really hurts.

While teaching recently at the International Anti-Corruption Academy’s Master in Anti-Corruption Studies program, a conversation took a similar, and similarly unexpected, turn. We were speaking of the rule of law, and the importance of adopting rules and procedures in place of the unbridled human discretion that, when paired with power, so often breeds corruption.

Kehinde — a senior Nigerian anti-corruption professional– piped up. He recounted a story of receiving an invitation to lunch from a western businessperson. Kehinde was in a position of considerable influence, but this meeting presented no risk of corruption. When lunch concluded, he was shocked to realize that, though he had been invited, he would pay his own way. He couldn’t believe it. In his culture, this was a major affront.

Then Ayman, an Egyptian risk advisory consultant, protested. “The anti-corruption movement does not prohibit gifts,” he said, “only gifts given to public officials in their public capacity.” He was of course right in places like the new South Korea, though not even the FCPA prohibits all gifts to public officials. But Shine, a civil society practitioner from Liberia and a deep thinker with genuine intellectual honesty, inquired, “how do we put public officials in a box?”

Ah yes, the box. The founding-era U.S. Supreme Court Chief Justice John Marshall spoke of this box when he wrote, “we are a government of laws, not of men.” He was describing constitutionalism and the rule of law; a society governed by rules and procedures, duly promulgated, written down, transparent, predictable, and nondiscriminatory. This is the box we now construct the world over.  And we must.

But as Chief Justice Marshall’s quote plainly implies, the rule of law removes from government something distinctively human. That which we seek to extricate is, of course, the temptation to engage in corruption: the universal human tendency to abuse public office for private gain. But in so doing, is anything lost?

“Waiter, can you split that bill?”

James Madison (the principle genius behind the U.S. Constitution) famously observed that “if men were angels, no government would be necessary.” Though we humans may have our angelic moments, history has shown that we will not consistently use unchecked discretion for good. The angelic moments are too few; the lapses too frequent and the harms far too great. We don’t trust the human heart when paired with power, so we replace discretion with policy and procedure. We are right to do so. It is imperative that we do so.

But what of that angelic impulse — of the human capacity, however rare, to use discretion for good, to show generosity and respect without risking the improper quid pro quo? Do we deny opportunities for its expression? My Egyptian student answered, “only for eight hours a day.”

Such is the cost of reform.

Plato famously envisioned the rule of philosopher kings, who would possess the intellect to discern true justice and the character to implement it uncorrupted by self-interest. What now of Plato’s dream — of a government comprised not of checks and balances and rules and policies and procedures and recordkeeping, but founded on a faith in human judgment?

R.I.P., Plato. The world now reads your eulogy.

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Andy Spalding is a lecturer at the International Anti-Corruption Academy, Professor at the University of Richmond School of Law, and Senior Editor of the FCPA Blog.