The virus of power

UNESCO Courier, June, 1996 by Eugenio Raul Zaffaroni

Corruption is as old as the idea of the state itself. When the French philosopher Montesquieu set forth his theory of the separation of powers in the eighteenth century, he did so to fight corruption. He was not, of course, the first to join battle. The function of constitutional law has always been to organize the sharing of power in order to control the way it is exercised and prevent it from being misused.

The fields in which corruption occurs change with the growing complexity of the state apparatus (which takes on new monitoring and management functions), but its main form continues to be abuse of power. Unfortunately, legal experts have not yet discovered the infallible tool for nipping the evil in the bud.

The history of institutional law could be summed up as one of constant efforts by legal experts to build barriers against corruption and combat those who devote all their ingenuity to getting round such barriers. Some models, of course, are less well adapted to circumstances and allow corruption to gain a greater foothold than others, which tend to reduce its room for manoeuvre.

All power corrupts...

After many poor countries achieved independence, corruption in them was often encouraged and taken advantage of by certain leaders of the rich countries, who saw it as a convenient way of recruiting obedient clients. Growing doubts about this kind of relationship in recent years have caused a breakdown in the mechanisms of "traditional" corruption.

We are very interested in corruption today, almost as if it were a new phenomenon, because it is beginning to disrupt economic and political life in the developed countries as well as in the developing countries where it has been going on for a long time.

Probably the only new element in the present situation is the fact that corruption is now feeding on itself - corruption in the developing countries is directly sustaining that in the industrialized nations. One of the objectives of the new world economic order is perhaps to try to stop corruption in the poorest countries, thus sparing them the exorbitant and uncontrolable accumulation of money that all kinds of illegal trafficking has led to in the rich nations.

Serious investment is needed to finance the apparatus of production, and this means a reliable, predictable legal system to deter speculators. Investors regard the misuse of power (and the corruption it encourages) as a threat; speculators see it as an opportunity. If the world economy is to be healthy and stable, it is clear that responsible investment must win out over speculation, otherwise the economy will be unstable with possibly disastrous results.

Speculation has become a world-wide phenomenon in recent years. This fact should be enough to dispel the illusion that the blunt instrument of the criminal law is the only weapon needed to roll back corruption. Globalization requires more rigorous control of corruption, and the only way to achieve this goal is to reduce the areas where corruption prospers. This means an across-the-board improvement of all institutions. No one simply wants to increase the repressive power of states.

To develop the state's repressive apparatus within a framework of defective institutions where there are no checks on power is to increase opportunities for abuse and encourage arbitrariness, violence - and eventually corruption. Advocating repression as a solution is a good ploy for politicians trying to whip up support from some parts of the electorate, but apart from that it is dangerously simplistic because paradoxically it increases the opportunities for corruption.

And so, even if the criminal law plays no small part in the fight against corruption, the first move must be to carry out political and institutional reforms designed to promote a better balance of power, greater freedom of information and speech and the widest possible participation by citizens in monitoring and managing public affairs.

A fight for democracy

One of the most difficult types of power to monitor is in fact the repressive power, which is by definition selective. The law comes down more heavily on some sectors of the population than others (just as the victims of crime are generally sociologically typecast), and this process whereby criminals and victims are selected has an arbitrary quality which can lead to misuse of power and to corruption.

Moreover - and this is perhaps the most important point - repression is much less effective as an instrument for regulating a polity than it is as an instrument of police surveillance. It is a dangerous illusion to think that essentially political phenomena can be regulated by repression. To give the police and bureaucratic machine the capacity for complete control - especially with the facilities made available by modern technology - is to expose it to a vast new field for dishonesty and abuse. The belief that corruption can be fought by increasing the discretionary power of those institutions which are most exposed to it is as absurd as seeking protection from wild animals by taking refuge inside their cages.