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Conceptualising corruption and the rule of law

Conceptualising corruption and the rule of law
Conceptualising corruption and the rule of law
What is the best way to conceptualise corruption? The conventional approach is to define corruption as individual action that deviates from civic duty for the sake of private gain. However, scholars such as Dennis Thompson, Lawrence Lessig, and Zephyr Teachout have proposed an alternate conception, defining corruption as structural misalignment of normalised political practices. This transforms corruption from condemnation of personal conduct into an evaluation of whether institutions are performing their roles appropriately.
Scholars continue to wrestle with the tradeoffs between the clarity and convenience of the conventional definition and the normative depth of the institutional view. Two recent books describe societies awash in corruption, and demonstrate the consequences of incorporating the institutional definition. Yuen Yuen Ang’s China’s Gilded Age describes a society thriving in spite, and perhaps because, of pervasive corrupt conduct. She relies on the conventional definition to measure corruption for her dazzling empirical analysis. Her conclusion that transaction-facilitating corruption in China is pervasive, formally condoned, and socially beneficial makes her critical use of the institutional frame especially provocative. Her project queries if corruption has meaning without reference to the foundational values of a polity. Timothy Kuhner’s Tyranny of Greed offers a fierce critique of American politics, exceptional for its systemic, moralising definition of corruption. Kuhner indicts Donald Trump’s presidency as exemplifying the avarice that undermines American society. Kuhner depicts corruption as pervasive moral decay, infiltrating persons as well as institutions and tainting established norms and rules. He evokes both the critical potential and analytic limitations of the institutional approach.
Ang and Kuhner indicate underappreciated characteristics of the institutional account, particularly its relationship to rule of law. Because it is defined by culpable violation of familiar norms that dictate individual conduct, anti-corruption enforcement based on a conventional account of corruption will tend to satisfy rule of law requirements of transparency, predictability, and accessibility. The engagement of Ang and Kuhner shows how the institutional account unsettles the relationship between rule of law and identification of corruption. This derives from the fact that a claim of institutional corruption is informed by an external account of good political practice, and can occur without intentional violation of norms of integrity. This suggests that the two accounts can fulfil different roles in the pursuit of political integrity. Institutional identification of corruption is useful to guide wide-ranging structural reforms, while the conventional conception should be deployed to condemn individual behaviour or impose criminal sanction.
0026-7961
1071-1092
Eisler, Jacob
a290dee3-c42f-4ede-af9a-5ede55d0135a
Eisler, Jacob
a290dee3-c42f-4ede-af9a-5ede55d0135a

Eisler, Jacob (2022) Conceptualising corruption and the rule of law. Modern Law Review, 85 (4), 1071-1092. (doi:10.1111/1468-2230.12694).

Record type: Review

Abstract

What is the best way to conceptualise corruption? The conventional approach is to define corruption as individual action that deviates from civic duty for the sake of private gain. However, scholars such as Dennis Thompson, Lawrence Lessig, and Zephyr Teachout have proposed an alternate conception, defining corruption as structural misalignment of normalised political practices. This transforms corruption from condemnation of personal conduct into an evaluation of whether institutions are performing their roles appropriately.
Scholars continue to wrestle with the tradeoffs between the clarity and convenience of the conventional definition and the normative depth of the institutional view. Two recent books describe societies awash in corruption, and demonstrate the consequences of incorporating the institutional definition. Yuen Yuen Ang’s China’s Gilded Age describes a society thriving in spite, and perhaps because, of pervasive corrupt conduct. She relies on the conventional definition to measure corruption for her dazzling empirical analysis. Her conclusion that transaction-facilitating corruption in China is pervasive, formally condoned, and socially beneficial makes her critical use of the institutional frame especially provocative. Her project queries if corruption has meaning without reference to the foundational values of a polity. Timothy Kuhner’s Tyranny of Greed offers a fierce critique of American politics, exceptional for its systemic, moralising definition of corruption. Kuhner indicts Donald Trump’s presidency as exemplifying the avarice that undermines American society. Kuhner depicts corruption as pervasive moral decay, infiltrating persons as well as institutions and tainting established norms and rules. He evokes both the critical potential and analytic limitations of the institutional approach.
Ang and Kuhner indicate underappreciated characteristics of the institutional account, particularly its relationship to rule of law. Because it is defined by culpable violation of familiar norms that dictate individual conduct, anti-corruption enforcement based on a conventional account of corruption will tend to satisfy rule of law requirements of transparency, predictability, and accessibility. The engagement of Ang and Kuhner shows how the institutional account unsettles the relationship between rule of law and identification of corruption. This derives from the fact that a claim of institutional corruption is informed by an external account of good political practice, and can occur without intentional violation of norms of integrity. This suggests that the two accounts can fulfil different roles in the pursuit of political integrity. Institutional identification of corruption is useful to guide wide-ranging structural reforms, while the conventional conception should be deployed to condemn individual behaviour or impose criminal sanction.

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J Eisler - MLR Corruption Review - Ang and Kuhner 2 Aug 2021 - Accepted Manuscript
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More information

Accepted/In Press date: 30 July 2021
e-pub ahead of print date: 3 October 2021
Published date: 17 July 2022

Identifiers

Local EPrints ID: 450853
URI: http://eprints.soton.ac.uk/id/eprint/450853
ISSN: 0026-7961
PURE UUID: 35e0e1a4-171b-4a38-b368-4a0859d9b746
ORCID for Jacob Eisler: ORCID iD orcid.org/0000-0003-4422-5255

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Date deposited: 16 Aug 2021 16:49
Last modified: 30 Nov 2022 05:02

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