What's Wrong with Bribery
DEFINING CRIMES: ESSAYS ON THE CRIMINAL LAW'S SPECIAL PART, R.A. Duff & Stuart P. Green, eds., Oxford University Press, 2005
Posted: 19 Jan 2005
Abstract
In this chapter analyzing the moral content of bribery, bribes are conceptualized as bilateral agreements between two parties (a briber and bribee) in which the briber gives or offers something of value in exchange for the bribee's agreeing to act on the briber's behalf. In taking part in such an agreement, the bribee violates a duty of loyalty arising out of his office, position, or involvement in some practice. The briber, in turn, commits the morally wrongful act of inducing another to be disloyal.
Understanding bribery in this matter is shown to be helpful in resolving a number of perplexing practical problems in the law of bribery, including cases in which a putative bribee is given something of value (e.g., prosecutorial leniency, money) in return for doing the right thing - e.g., a witness' testifying truthfully for the government in a criminal case, or a senator's voting for legislation that is in the best interests of her constituents. An additional distinction between loyalty in the descriptive or empirical sense and loyalty in the moral or normative sense is useful in analyzing cases such as those in which a prison guard at Auschwitz is given something of value in return for allowing a prisoner to escape. Understanding disloyalty in terms of a violation of positional duty can also help explain what appears at first glance to be a puzzling cultural variation in attitudes regarding the tolerance of bribery. Finally, the chapter addresses the moral content of cases in which the putative briber or bribee either uses or is the victim of coercion.
Keywords: Bribery, loyalty, disloyalty, criminal law, white collar crime, moral theory
JEL Classification: K14
Suggested Citation: Suggested Citation