Conceptualising Corruption and the Rule of Law
| Published date | 01 July 2022 |
| Author | Jacob Eisler |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12694 |
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Modern Law Review
DOI:10.1111/1468-2230.12694
REVIEW ARTICLE
Conceptualising Corruption and the Rule of Law
Jacob Eisler∗
Yue n Yue n An g,China’s Gilded Age: The Paradox of Economic Boom
and Vast Corruption, Cambr idge: Cambridge University Press, 2020, 257 pp,
hb.
Timothy K. Kuhner,Tyranny of Greed: Trump, Corruption, and the Rev-
olution to Come, Stanford, CA: Stanford University Press, 2020, 179 pp, pb.
What is the best way to conceptualise corruption? The conventional approach
is to dene corruption as individual action that deviates from civic duty for the
sake of private gain. However, scholars such as Dennis Thompson, Lawrence
Lessig, and Zephyr Teachout have proposed an alter nate conception, dening
corruption as structural misalignment of nor malised political practices. This
transforms corruption from condemnation of personal conduct into an evalu-
ation of whether institutions are performing their roles appropriately.
Scholars continue to wrestle with the tradeos between the clarity and con-
venience of the conventional denition and the normative depth of the in-
stitutional view. Two recent books describe societies awash with corr uption,
and demonstrate the consequences of incorporating the institutional denition.
Yu e n Yu e n A n g ’ s China’s Gilded Age describes a society thr iving in spite, and
perhaps because, of pervasive corr upt conduct. She relies on the conventional
denition to measure corruption for her dazzling empirical analysis. Her con-
clusion that transaction-facilitating corruption in China is pervasive, formally
condoned,and socially benecial makes her critical use of the institutional frame
especially provocative. Her project queries if corruption has meaning without
reference to the foundational values of a polity. Timothy Kuhner’s Tyranny of
Greed oers a erce critique of American politics, exceptional for its systemic,
moralising denition of corruption. Kuhner indicts Donald Trump’s presidency
as exemplifying the avarice that undermines American society.Kuhner depicts
corruption as pervasive moral decay, inltrating persons as well as institutions
∗Associate Professor of Public Law,Southampton Law School; Research Associate,Centre for Business
Research,University of Cambridge Judge Business School. Manythanks to Peter Turner,Aidan Finley,
and two anonymous reviewers for advice, suggestions, and encouragement.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2022) 85(4) MLR 1071–1092
Conceptualising Corruption and the Rule of Law
and tainting established norms and rules. He evokes both the critical potential
and analytic limitations of the institutional approach.
Ang and Kuhner indicate underappreciated characteristics of the institutional
account, particularly its relationship to the rule of law. Because it is dened
by culpable violation of familiar norms that dictate individual conduct, anti-
corruption enforcement based on a conventional account of corruption will
tend to satisfy rule of law requirements of transparency, predictability and ac-
cessibility. The engagement of Ang and Kuhner shows how the institutional
account unsettles the relationship between rule of law and identication of
corruption. This derives from the fact that a claim of institutional corruption
is informed by an external account of good political practice, and can occur
without intentional violation of norms of integr ity. This suggests that the two
accounts can full dierent roles in the pursuit of political integrity.Institutional
identication of corruption is useful to guide wide-ranging str uctural reforms,
while the conventional conception should be deployed to condemn individual
behaviour or impose criminal sanction.
THE CONVENTIONAL VIEW AND THE INSTITUTIONAL
INNOVATION
Joseph Nye provides a leading conventional formulation1of cor ruption: ‘Cor-
ruption is behavior which deviates from the formal duties of a public role be-
cause of private-regarding (personal, close f amily, private clique) pecuniary or
status gains; or violates rules against the exercise of certain types of private-
regarding inuence’.2
This denes corruption as 1) discrete instances of conduct that 2) violate
public-duty norms to obtain private gain. In short,cor ruption is self-enriching
violation of norms of civic duty. Classic examples would include accepting
bribes, embezzling state property, or using resources of public oce to engage
in self-dealing such as insider trading. Such conduct turns power that should
be used for the public weal into a personal benet for the ocial who holds
it. It is a betrayal of public trust, and typically harmful to accountable,ecient
governance.
1 As C.E. De Vries and H. Solaz,‘The Electoral Consequences of Corruption’ (2017) 20 Annual
Review of Political Science 391, 392 observe, even if the public-for-private exchange denition is
indeterminate, ‘it has become widely accepted within the literature’. For examples of prominent
denitions that cite or mirror Nye’sdenition, see J.C.Scott, ComparativePolitical Corruption (En-
glewood Clis,NJ: Prentice-Hall,1972) 4; P.Bardhan, ‘Corruption and Development:A Review
of Issues’ (1997) 35 Journal of Economic Literature 1320, 1321; S. Rose-Ackerman, Corruption and
Government (Cambridge: Cambridge University Press, 1999) 91; L.A. Schwindt-Bayer and M.
Tavits, Clarity of Responsibility, Accountability, and Corruption (Cambridge: Cambridge University
Press, 2016) 4; China’s Gilded Age 2. For prominent examples of such denition being used in
practice, see Transparency International, What is Corruption 2021 at https://www.transparency.
org/en/what-is-cor ruption; The World Bank, Anticorruption Fact Sheet 19 February 2020 at
https://www.worldbank.org/en/news/factsheet/2020/02/19/anticorruption- fact-sheet.
2 J.Nye, ‘Corruption and Political Development: A Cost-Benet Analysis’ (1967) 61 The American
Political Science Review 417, 419.
1072 © 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2022) 85(4) MLR 1071–1092
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