Law and Transnational Corruption: The Need for Lincoln’s Law Abroad

Authors

Paul D. Carrington, Duke Law SchoolFollow

Document Type

Article

Publication Date

2007

Keywords

corruption, corrupt practices, bribery, False Claims Act, Foreign Corrupt Practices Act, whistle-blower

Abstract

Unless and until means can be devised to deter bribery in impecunious nations, globalization can be of scant benefit to most of the people of those nations, for they are destined to be governed weakly, if at all, and to serve as havens here or there for all sorts of gangsters and terrorists. One need not be a humanitarian to take the transnational corruption problem seriously. This essay responds to that concern. It considers some possible reforms of international law that might serve to deter the corruption of weak governments. All its suggestions entail the use of the American practice of private enforcement of public law, a system that minimizes dependence on public officials who are subject to capture by wealthy outsiders. Privatized law enforcement in the American tradition generally threatens legal consequences on harmful practices ex post rather than preventing harmful practices ex ante. It offers the advantage to Business of greater freedom in the conduct of transactions. But its many costs result in resistance by many businessmen in the United States against whom law is often privately enforced and by wise lawyers of other lands blessed with public institutions that can be and are trusted to enforce public law. The relevance of the American practice of privatized law enforcement to the corruption problem results from the historical fact that it is a product of a nineteenth-century culture sharing very limited trust in government and its officers. Its cultural situation thus bears some resemblance to the situations both in impoverished lands and in the community of nations hoping for enforcement of international law prohibiting corrupt practices. It is a system of law enforcement that reduces the law's dependence on the integrity of judges, prosecutors, and other public servants. Wherever public integrity is in great doubt, the American experience may offer useful instruction.

Citation

Paul D. Carrington, Law and Transnational Corruption: The Need for Lincoln’s Law Abroad, 70 Law and Contemporary Problems 109-138 (2007)