73 Pages Posted: 5 Oct 2005
Date Written: October 1, 2005
Corruption is one of the most powerful words in the English language. When it comes to the treatment of corruption by law, however, corruption is a troubled concept. With increasing recognition of the costs of corruption for economic development, democratic governance, international aid programs, and other world goals, attempts to articulate what this destructive force is have led to an avalanche of theoretical writing. In the last fifteen years, corruption has been variously defined as the violation of law, a public servant's breach of public duty, an agent's betrayal of a principal's interests, the pursuit of secrecy, the denial of equality in political influence, and other ways.
In the end, however, all of these efforts fall short. Corruption is more than law-breaking: it is more than breaching public duties. To say that A is a thief or that A has breached his duty is not to say that A is corrupt. The latter is far more powerful, far more emotional, far more essential than the others. It is more than secrecy, or the denial of equal opportunity. It is a searing indictment, somehow, not only of A's act but of A's character. It is a statement not only of what A has done, but of what A has become.
Corruption is, I argue, a far more powerful idea than these existing legal understandings have articulated: it is the idea of capture by evil, the possession of the individual by evil, in law. Just as we once believed in corruption of the blood in American law, which decreed that offspring of those who had committed crimes were believed to be irrevocably tainted by their parents' depravity, so we still retain - through the idea of corruption - the belief that individual evil extends beyond acts of wrongdoing, or the denial of equal opportunity, or breach of the public trust.
It is this idea of corruption, I argue - the idea of capture by evil - that, although unarticulated, drives our understandings of corruption in law. It drives our understanding of corrupt judges, who, once corrupt, we believe will act so in every case. It drives our understanding of campaign finance reform, where we fear deep corruption of the process from the occurrence of corrupt acts. It drives our understanding of corruption as a systemic effect and systemic influence, which presents institutional dangers that are greater than other crimes, and that requires purgation rather than simple law enforcement.
This Article explores this deeper understanding of corruption, its impacts in areas such as judicial corruption and campaign finance reform, and its implications for the principle of the rule of law.
Suggested Citation: Suggested Citation
Underkuffler, Laura, Captured by Evil: The Idea of Corruption in Law (October 1, 2005). Duke Law School Legal Studies Paper No. 83. Available at SSRN: https://ssrn.com/abstract=820249 or http://dx.doi.org/10.2139/ssrn.820249