647 The Good Bribe Philip M. Nichols * Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment of a bribe can ever be justified. In order to answer that question, the article first looks at three tropes of reasons for criminalizing bribery: as a reflection of morality, to preserve the connection between people and their government, and to prevent harm. The article then examines and dismisses two common excuses for bribery: the need to pay a bribe to conduct business, and the optimal level of legal enforcement. The article then examines arguments for paying bribes in authoritarian regimes, and concludes that such arguments must be treated with caution. Finally, the article considers bribes paid by Oskar Schindler to save the lives of Jewish workers. Schindler’s bribes demonstrate that some bribes can be justified. Such bribes do not present a new checklist for evaluating bribery, nor do they represent a new trope of thinking. Rather, unique circumstances raise such bribes above the rules against and concerns about paying bribes. TABLE OF CONTENTS INTRODUCTION ................................................................................... 649 I. THREE CLASSIC WORKS ON THE CRIMINALIZATION OF BRIBERY .................................................................................... 650 A. John Noonan: Religious and Philosophical Rules ................ 651 B. Robert Klitgaard: An Agency Analysis of Bribery ............... 657 C. Susan Rose-Ackerman: The Consequences of Bribery ......... 660 II. TWO JUSTIFICATIONS FOR BRIBERY ........................................... 665 A. The “Necessity” to Pay to Do Business ............................... 666 1. The Empirical Claim .................................................. 667 2. The Moral Claim ........................................................ 669 B. Optimal Levels of Corruption............................................. 672 III. THE GOOD BRIBE ...................................................................... 674 A. The Argument in General .................................................. 674 * Copyright © 2015 Philip M. Nichols. Associate Professor of Legal Studies and Business Ethics, The Wharton School of the University of Pennsylvania.
The Good Bribe
Jul 06, 2023
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