Captured by Evil: The Idea of Corruption in Law

346 Pages·2013·1.39 MB·English

by  Laura S. Underkuffler

CAPTURED BY EVIL
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CAPTURED BY EVIL
THE IDEA OF CORRUPTION IN LAW
LAURA S. UNDERKUFFLER
NEW HAVEN & LONDON
Published with assistance from the foundation established in memory of Henry
Weldon Barnes of the Class of 1882, Yale College.
Copyright © 2013 by Yale University.
All rights reserved.
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Set in Meridien type by IDS Infotech Ltd., Chandigarh, India.
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Library of Congress Cataloging-in-Publication Data
Underkuffler, Laura S.
Captured by evil: the idea of corruption in law / Laura S. Underkuffler.
pages cm
Includes bibliographical references and index.
ISBN 978-0-300-17314-7 (cloth)
1. Corruption—Philosophy. 2. Good and evil—Philosophy. 3. Law
and ethics. I. Title.
K5261.U55 2013
364.1’323—dc23
2012038657
A catalogue record for this book is available from the British Library.
This paper meets the requirements of ANSI/NISO Z39.48-1992
(Permanence of Paper).
10 9 8 7 6 5 4 3 2 1
CONTENTS
Acknowledgments vii
Introduction 1
1 Exploring Corruption: The Inadequacies of
Traditional Theories 7
2 The Idea of Corruption: Toward a Deeper
Understanding 54
3 Corruption- as- Disposition: A Different Crime 74
4 An Evil Disposition: Further Explorations 90
5 Corruption as Capture- by- Evil: Desirable or Not? 106
6 Costs and Benefits Examined: Three Settings
for Corruption 141
7 Corruption and Moral Values: Some Implications
for Government 223
8 Coda: Corruption and the Rule of Law 244
Conclusion 248
Notes 253
Index 323
vi CONTENTS
ACKNOWLEDGMENTS
Work on this book began in 1993 when I spent a research
leave in Washington, D.C., at the Woodrow Wilson International
Center for Scholars and the Overseas Development Council. I am
grateful for the material support given to me by both institutions,
as well as the opportunity for collegial discussion that was invalu-
able in the early stages of the project. I also want to thank
colleagues and friends at Cornell University and Duke University
for their comments and ideas throughout the project. I would
like particularly to thank Greg Alexander, Allen Czelusniak,
Thatcher Freund, Alon Harel, Bob Hockett, Judith Miller, Charles
Norchi, David Nowlin, Pablo Ruiz- Tagle Vial, Joe Singer, Deb
Tuerkheimer, Frank M. Underkuffler and Jennifer Wriggins for
their assistance in so many ways. I am also grateful for comments
received during the presentation of the project at workshops
hosted by DePaul University Law School, Harvard Law School,
the University of Maine Law School, Queens University Faculty
of Law, Boston University Law School, the University of Alabama
Law School, University of California–Davis Law School, the
University of Virginia Law School, Michigan State University
College of Law, and Indiana University, as well as comments
vii
received at the Annual Meeting of the European Society of
Criminology in Cracow, Poland, the Corruption Conference at
Hebrew University, Jerusalem, Israel, and the Conference on
Issues in Democratic Governance at the Universidad de Chile,
Santiago, Chile.
A précis of Chapter 2 was published in Corruption, Global
Security, and World Order (Robert I. Rotberg ed., 2009) under the
title “Defining Corruption: Implications for Action.” An initial
discussion of some issues discussed in Chapter 2 can also be
found in “El Concepto de Corrupción” (The Nature of Corruption),
in Fracturas en la Gobernabilidad Democratica (Raúl Urzúa and
Felipe Argüero eds., 1998).
viii ACKNOWLEDGMENTS
INTRODUCTION
Mephistopheles: But tell me, Faustus, shall
I have thy soul?
—Christopher Marlowe, Dr. Faustus
The subject of this book is corruption.
“Corruption” is one of the most powerful words in the
English language. When (for instance) we think of corruption of
food, human bodies, or other physical objects, we think of some-
thing that is fundamentally or revoltingly altered, impure, rotten,
or worse. When we think of corruption in government—the
subject of this book—the impact of this word is equally powerful.
Charges of corruption in public life have condemned men,
destroyed the lives of women, and accelerated the decline and
fall of governments. Corruption is something that human beings
instinctively loathe, and that we try to excise from our midst.
The word itself conjures something that is powerful, insidious,
and destructive of human lives and institutions.
The thesis of this book is that corruption, when used in law,
is a troubled concept. The contemporary Western ideology of law
assumes that law must operate within a universe of knowable
and articulable standards, logical and demystified, that strive
toward neutral content and operation. Corruption, I shall argue,
1