Alright, alright, I know there’s so much important and serious going on in the anticorruption world, and the world in general, that I have to apologize right up front for the topic of this post, which is has virtually no importance to anything substantive. But I’ll post about it anyway, partly because it’s been bugging me, partly because right now I’m too burnt out to take up anything more weighty. Here’s today’s trivial terminological complaint:
The term “passive bribery.”
I don’t know when or how this happened, but in large segments of the anticorruption community, it’s become standard to refer to the act of requesting, demanding, or taking a bribe as “passive bribery”—which is contrasted with “active bribery,” defined as the act of promising, offering, or giving a bribe. This terminology has become so standard that it appears repeatedly in glossaries prepared by international organizations (see, for example, here and here) and leading anticorruption NGOs (see, for example, here and here), though to the best of my knowledge these terms aren’t actually used in any legal codes, nor in the UN Convention Against Corruption.
The problem is that describing the act of taking (or demanding) a bribe as “passive bribery” is both an abuse of language and potentially confusing or misleading.
It’s an abuse of language because “passive” doesn’t mean simply “being on the receiving end of,” certainly not in the context of a transaction. We don’t refer to buying as “passive selling,” nor do we refer to catching as “passive throwing.” Perhaps more apt, we don’t refer to the receipt or solicitation of charitable donations as “passive charity.” Passive, at least in its most common (relevant) definition, means “receiving or enduring without resistance,” or “not reacting to what happens, or not acting or taking part.” A public official who demands and receives a bribe is hardly “passive” in that or any other sense.
Furthermore, to refer to such an individual as engaged in “passive bribery” is misleading because it connotes a kind of helplessness, or mere acquiescence. These connotations are understandable because they are implied by the actual meaning of the word “passive,” but they’re often wholly inappropriate in the context of a bribe-taking or bribe-demanding official. “Passive bribery” also sounds less bad, and less serious, than “active bribery,” even though most people would view the two parties to the bribe transaction as equally culpable. Some might plausibly argue that what has been termed “passive bribery” is actually worse, in than the public official who solicits a bribe is not only acting in her own interest, but is betraying her obligations to her country. Additionally, this use of the terms “active” and “passive” bribery is misleading because we often want to distinguish those situations in which the bribe-taker is the initiating party from those in which the bribe-receiver is the initiating party, and the active/passive distinction might appear intended to be making that sort of distinction, at least to those who are less familiar with how these terms have come to be (mis)used in this context.
Is this a big deal? No, not really. Lots of fields have jargon terms with meanings that differ from common usage, sometimes in ways that are confusing to lay people. And most of the relevant glossaries that include the term “passive bribery” are careful to explain that “passive” here means “on the receiving end of,” not “passive” in the usual sense of “inactive.” But plenty of people do get confused by this odd usage, and this confusion is easily avoidable, because there are plenty of other ways to distinguish between bribe-takers and bribe-givers—that is, between the demand side and the supply side of bribe transactions. Indeed, “bribe-taking” and “bribe-giving,” or “demand-side” and “supply side,” much more accurately capture the relevant distinction here than “passive” and “active.” And when an official demands a bribe as a condition for taking or abstaining from some action, we should call it what it really is—extortion—rather than resorting to what sounds like a euphemism.
So let’s stop abusing language, and at the same time stop inadvertently implying that the act of demanding a bribe isn’t as serious (or that the bribe-demanders aren’t as culpable) by dropping “passive bribery” from our vocabulary.
The Brazilian Criminal Code uses those expressions in articles 317 and 333 (maybe so do other civil law countries?). But those terms have always bothered me and I believe we would be much better without them.
The term passive corruption is also used to describe bribe-taking in the French Penal Code (Articles 432, 435 and 445) and in the Swiss Penal Code (Articles 322quater and 322novies of the French and Italian versions; the German version says “sich bestechen lassen”, i.e. letting oneself be bribed). I agree that the bribe-taker is often not “passive”.
I view the terms “passive bribery” and “active bribery” differently and believe that the terms represent useful distinctions.
To me, “passive bribery” occurs when a company with pre-existing compliance policies and procedures, and making good faith efforts to the comply with the FCPA and other similar laws, is doing business in the global marketplace, yet because of a foreign law, rule, regulation etc. is put into contact with a “foreign official” who makes a bribe request. Obviously, it takes two to tango, and the bribe request is fulfilled often by a low-ranking corporate employee without the knowledge or approval of anyone at corporate headquarters.
To me, “active bribery” is when corporate executives sit around the conference room table at corporate headquarters rubbing their hands together and saying who can we bribe to get business in the global marketplace.
These are materially different scenarios and thus the “passive” and “active” distinction is useful. Moreover, many other crimes uses different terms to describe different levels of culpability.
Thanks for the post. I’ve always disliked those terms and I ‘actively’ avoid them. I don’t think it is as trivial discussion though, it portrays an important yet largely unspoken phenomenon underlying recent international anti-corruption debates and salient initiatives: shifting the focus away from public officials. With growing despair, I have observed over the years how public officials negotiate Standards, participate in Summits, and sign “commitments” or “calls for action”, as long as the focus is not on them. Panels on the role of the private sector, beneficial ownership, accessing information, institutional design, are always popular picks by organizers. Please don’t get me wrong, these are all relevant and important topics, but they also appear to make everyone more comfortable, somehow shifting the debate from the actual people involved. It seems as if complex corruption schemes have made everyone forget the basics: you need an unethical public official for corrupt acts to occur.
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It’s the same problem when it comes to demand and supply, there the blame game is turned into the other direction. And I agree we need to regularly make people aware that these terms are not satisfactory. I have not yet come up with better terminology, have you?
Matthew, sure, we have to be cognizant of connotations. But as “practitioners,” can’t we recognize that these are technical terms derived from the terminology of some legal systems (I suspect certain civil law systems, given the comment above, and given that the terms are used in the Council of Europe Criminal Law Convention against Corruption and related documentation) and used for their shorthand convenience? No implication of “passivity” would have been intended when “passive bribery” was adopted to describe certain behaviors and “active bribery” others — any more than when we say certain nouns in some languages are masculine or feminine. We are certainly not imputing a characteristic of “femininity” to a table in Spanish, nor masculinity to a map (I think!). “Tenders” for procurements can actually be quite aggressive and rough, I imagine. 🙂 Tradition, and the existence of the term in laws and conventions that will undoubtedly persist regardless of these discussions, aside, Gretta may have hit the nail on the head — one of the issues may be that it is challenging to come up with a short (one-three word) label for the behavior that is sufficiently inclusive. Now, don’t get me started on “supply side” of bribery and “demand side,” terms that really set me off… Thanks as always for this illuminating forum.
I completely agree and it is important because it mischaracterises what happens in a corrupt transaction in practice. The terms make literally no sense yet they are in wide circulation.