Corruptio Legis: Law as a Cause of Systemic Corruption Comparative Perspectives and Remedies also for the Post-Brexit Commonwealth

Abstract

Law, as a set of sources including legislation, administrative regulations, custom, and judicial decisions, is one of the causes of systemic corruption, intended as the generalised practice of various forms of abuse of entrusted power for private gain as part of the culture and the institutional system of a country. This paper assesses the validity of the outcomes of the most significant research conducted in Europe on the unintended criminogenic effects of legislation and the viability of the mechanism of legislative crime proofing developed for EU law in the particular legal context of Commonwealth countries. The first objective is to offer some original theoretical perspectives and practical solutions, and, particularly, to develop a comprehensive, principled strategy capable of suiting the most disparate legal systems. A secondary objective of this paper is to stimulate further discussion and research on the crime and corruption risks of the law, as a necessary step towards the elimination of systemic corruption.

The responsibilization paradox: The legal route from deresponsibilization to systemic corruption in the Australian financial sector

“…A first set of interventions should address the substance, form and processes of law design. Guidance and appropriate training for legislators and regulators should set principles of 'good rule-making' (Pasculli, 2017). These should address any aspect of legal drafting, such as clarity and precision of legal * Pre-proof read copy * Please cite as 'The responsibilization paradox: The legal route from deresponsibilization to systemic corruption in the Australian financial sector'.…”

Seeds of systemic corruption in the post-Brexit UK

“…A less perceptible cause of systemic corruption is the so-called corruption of the law (Pasculli, 2017; Pasculli, 2019), which occurs when the law itself and the policies behind it become a factor of corruption and its systematisation. This can be either the intended result of undue political and private influences on the processes of policymaking and lawmaking (Giavazzi and Barbieri, 2014) or, more often and more insidiously, the unintended result of poor policymaking and lawmaking (Albrecht and Kilchling, 2002; Savona et al , 2006; Hoppe, 2014; Kotchegura, 2018).…”

“…The corrupting effects of the law can act both on a situational level and on a socio-psychological level. At a situational level, legal provisions can strengthen criminal motivations, provide opportunities for crime, or undermine the effectiveness of controls (Pasculli, 2017). Scholars have identified a set of typical regulatory situations which carry crime risks: the introduction of burdensome obligations; the introduction of concessions on taxes, fees or obligations; the introduction of grants, subsidies or compensation schemes; the introduction or increase in costs of legal goods; the prohibition, restriction or reduction in the availability of demanded products or services; the introduction, removal of or other changes to a law enforcement capacity; and the attribution of regulatory powers to public officials (Morgan and Clarke, 2006).…”

“…This, in turn, erodes the generalised willingness to spontaneously observe their prescriptions and provides convenient patterns of self-excuse. The binding and abstract nature of the law and its general applicability fosters the widespread institutionalisation of corrupt practices based on flawed legal provisions (Pasculli, 2017).…”

Corruption in World Bank-Financed Development Projects: A Phenomenon-Focused Examination

“…Serious concerns arise from such a lack of generalised transparency. Besides the ethical issues related to the necessity of assuring that the related World Bank's documents enter into public domain, and the circumstance that the lack of transparency may affect the effectiveness of the World Bank's regulatory framework in combating corruption in that inappropriate regulations may indirectly encourage corrupt practices (Pasculli, 2017), the current asymmetry could also lead to unintended distortions in the way in which the sanctions system operates or be used instrumentally by respondents. For instance, to avoid reputational damages, multinational enterprises may tend to accept even unfair sanctions recommended at the end of the first tier of the sanctioning procedure or let only the involved executives and not the firm itself appealing the decisions of the Suspension and Debarment Officer before the Sanctions Board.…”