Aggressive Criminal Law Enforcement Is Insufficient to Combat Systemic Corruption. But That Doesn’t Mean It’s Not Necessary.

This will be a super-short blog post that makes a super-short point. Here goes:

Let me start by stating the following proposition: Effective enforcement of anticorruption rules, including criminal law enforcement, against individual wrongdoers is necessary but not sufficient to combat systemic corruption.

Both parts of that proposition are important, and I believe correct:

  • Punishing individual wrongdoers is necessary to combat systemic corruption because without individual accountability, it’s not possible to deter those who might be tempted to abuse their entrusted power for private gain, and the absence of individual accountability will likely perpetuate the belief that powerful elites are above the law, feeding the sense of hopelessness or resignation or cynicism that contributes to the vicious cycle that perpetuates systemic corruption.
  • Punishing individual wrongdoers is not sufficient to combat systemic corruption because widespread corruption is generally the product of systems, institutions, and cultures that create the incentives and opportunities to behave corruptly, and without addressing these root causes of corruption, even the most aggressive anticorruption enforcement efforts will be ineffective.

I don’t think either of those claims should be controversial. But I’ve noticed that in debates over anticorruption efforts in various countries, people sometimes commit the logical fallacy—usually by implication rather than expressly—of treating the second claim (that criminal law enforcement is not sufficient to combat systemic corruption) as if it negated the first claim (that criminal law enforcement is necessary to combat systemic corruption). The argument is usually phrased something like this: “Country X is cracking down on corruption and aggressively enforcing its anticorruption laws and putting people in jail. But this is a mistake, because combating systemic corruption actually requires broad-based institutional reforms. The focus should therefore be on institutional reform, not on aggressive criminal law enforcement.”

I agree that criminal prosecutions alone can’t solve the corruption problem, and recent history is littered with examples of anticorruption “crackdowns” that failed to produce lasting change. And there’s certainly an important question as to where the emphasis should be—it’s entirely possible that in many countries there’s too much focus on criminal prosecutions and too little attention to other types of reform. But it’s not an either/or tradeoff, and it troubles me that the (correct) observation that criminal prosecutions are insufficient is so often deployed rhetorically to imply that aggressive criminal law enforcement is not necessary or appropriate. (I noted something like this argument in a previous exchange concerning Ukraine, and more recently encountered it in a discussion of the Car Wash Operation in Brazil, but I’ve heard basically the same line in conversations about many other countries.) Recognizing the importance of structural reform shouldn’t obscure the fact that effective enforcement of anticorruption laws, and the imposition of individual accountability, is also a vital part of the anticorruption agenda. After all, while there are plenty of punishment-focused anticorruption crackdowns that failed to produce systemic change, I can’t think of any successful efforts to get rampant corruption under control that didn’t involve a hefty dose of aggressive enforcement of the laws against corruption, including prosecution and punishment.

8 thoughts on “Aggressive Criminal Law Enforcement Is Insufficient to Combat Systemic Corruption. But That Doesn’t Mean It’s Not Necessary.

  1. Trade barriers and distortions are often the root causes of bribery and a reduction in bribery will not be achieved without a reduction in trade barriers and distortions.

    Regulatory burdens (ranging from local content requirements, customs procedures, licensing and certification requirements, foreign government procurement policies, etc.) create bureaucracy, bureaucracy creates interactions with foreign officials, and the more interactions with foreign officials, the greater the bribery/corruption risk will be. It really is not that complex of a formula.

    No amount of criminal enforcement (corporate or individual) will change these root causes.

  2. Estonia. You seem to suggest that aggressively prosecuting corruption cases contributes to confronting corruption even if it does not “solve” the problem. How about the many examples of countries where corruption cases are brought exclusively against opposition politicians, as anticorruption laws are enforced for political purposes? Aren’t there instances where the pattern of prosecution of corruption has discredited the rule of law?

  3. Corruption in the Metropolitan Police of London, albeit several decades ago was addressed by a criminal investigation called Operation Countryman. There were eight arrests but no successful prosecutions and therefore no judicial punishment. Nonetheless there was punishment, i.e. loss of employment and reputation in very public career-finishing circumstances. There were significant systemic changes too.
    More details are here https://www.tristramhicks.com/post/the-perfect-storm

  4. Thanks a lot for this thought-provoking post, professor Stephenson! I would also highlight that the increase of anti-corruption law enforcement brings out some relevant improvements regarding NGOs’ agenda and civil society awareness all over the globe. In its turn, those impacts may provide a slight beneficial shift amongst the political party discourses, as well as amidst governmental matters.

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  7. In Brazil, it is noticeable that the shifting of focus from anticorruption law enforcement to anticorruption reforms often represents an attempt to slow down the fight against corruption. This perspective is usually adopted by those who support targets or defendants in anticorruption cases or by those who benefit from corrupt schemes. In fact, usually anticorruption reforms, unlike anticorruption law enforcement, are subject to lasting debates, can be softened to accommodate many kinds of interests, and do not produce fast outcomes. Both approaches (law enforcement and reforms) are mutually complementary to address the complex corruption problem.

  8. Appreciate this – I suppose this is a healthy reminder for those dedicated to either of the two.

    Coming from a context where high profile corruption cases are also notoriously used by ruling parties against the opposition, there is a general cynicism to the effectiveness of this criminal enforcement. At present, India’s former Finance Minister P Chidambaram is in jail for alleged corruption in the INX media case. Merits of the case aside, there is also a general perception that this is a political targeting. Ironically, this is an accusation he faced when he was in power – for misusing the Central Bureau of Investigation against political opponents.

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