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Thursday, April 25, 2013

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.

Posted by Andy Spalding on April 25, 2013 at 10:14 AM | Permalink


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Maybe if it's a return to a state of nature it should be called Feral Corrupt Practices Act.

Posted by: Jeff Lipshaw | Apr 26, 2013 3:25:21 PM

It seems to me that you are conflating two things: (a) civil society, (b) the rule of law, and (c) individual rights.

You're correct that civil society safeguards individual rights through the rule of law. And you're right that bribery undermines civil society by degrading the rule of law. But that does not mean bribery categorically violates individual rights. This conclusion seems like a confusion of necessary and sufficient conditions.

Perhaps your argument is that individual rights cannot exist absent civil society, which bribery undermines. If that's your argument, then your characterization of the FCPA as a "human rights statute" is overbroad. Many laws that have nothing to do with human rights can be called "human rights statutes" merely because they arguably prevent corruption, disorder, unrest, fractal inequality, or other precondition to civil society (at an arbitrarily framed level of generality). This seems to deprive the term of any meaning, and to obscure the fact that many of the above "general welfare" statutes could violate actual human rights.

Perhaps, though, I am misreading your argument.

Posted by: Litigator | Apr 25, 2013 4:24:08 PM

Government wrongdoing (or wrongdoing by government agents) doesn't create a state of nature. Is Russia the state of nature? I doubt anyone in Russia would agree.

On your claim, the South African Constitutional Court has already gotten there. Look at their decisions on the independent anti-corruption agency.

Posted by: anon | Apr 25, 2013 1:31:29 PM

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