On Corporations and Pine Cones

I can vividly recall first reading John Locke as a freshman undergrad.  His state of nature conjured up images in my mind of people running around in the forest, trying to steal each other’s stuff.  I should be embarrassed to admit it, except that my professor’s understanding was not much better.  He criticized Locke and his followers on the grounds that the state of nature “never existed;” turns out, we were both wrong.

One realizes that the state of nature exists wherever governments wield illegitimate power.  Civil society exists only where government rules in accordance with standing laws, duly promulgated and known to the people, and directed to their good.  Where officials rule otherwise, we become subject to what Locke called “the inconstant, uncertain, arbitrary will of another” and the social contract is destroyed.  Our right to that liberty which can only be known in civil society is violated, and humankind returns to the state of nature.

The bribing of government officials does precisely that.  And so I want to argue that corporate bribery is a rights issue.  Where corporations bribe officials to win contracts over more competitive bidders, or to import goods in violation of customs laws, or to circumvent environmental or safety regulations, they have violated (or aided and abetted in the violation of) human rights.

Still with me?  If you are, then you believe that the Foreign Corrupt Practices Act is a rights statute -- it criminalizes conduct that violates (or aids and abets in the violation of, if you prefer) human rights.  We don't generally think of it that way (or enforce it that way), but we should.  

And if you’ve come with me this far, then you’re ready for my next question:  has the FCPA done more to deter overseas rights violations by corporations than the ATS ever did or could?  We'll explore that outlandish notion next post.