Still not at Ease : Corruption and Conflict of Interest in Hybrid Political Orders

Abstract

Corruption is considered to be predominantly a problem in ‘developing’ countries, for which a more neutral notion is: ‘hybrid political order’ (HPO). According to the Western view, corruption is a breach of the trustworthiness of public, or private, institutions that have a legal status. The view that corruption can be best prevented and combated by establishing a ‘Western’ type of state -referred to as ‘Weberian rule of law’ (WRL) - is contra productive, however, for countries that function differently.

The high prevalence of corruption in HPOs could be seen as a consequence of tensions that are grounded in the HPO concept as such. Although the formal set-up of HPOs is based on the WRL frame of reference, the practice of daily life expresses a different, mostly (neo)traditional, outlook on society. HPOs do not have a functional watershed between the public and private domain and have an ambiguous nature. A watershed between the public and private domain is presupposed in the WRL and also in the corruption, and even stronger in the conflict of interest, concept. The latter is the guiding concept in the most recent corruption legislation, and this shift contributes to an even stronger focus on an institutional set-up according to the WRL frame of reference. This recent legislation contributes to the confusion for local inhabitants of HPOs who operate on the crossroads of colliding frames of normative assessment, and therefore to behaviour that from a legal perspective is qualified as corrupt.

In order to address this problem and disambiguate the situation in HPOs, in this multi-disciplinary research in the fields of ethics and law, the WRL is deconstructed in two ways. First the motivation for the need for public institutions in the WRL is separated from the nature of these institutions. Second the underlying principles of the WRL are separated from the nation state. These exercises - conducted on the basis of a Kantian, universalist, view on the relationship between morality and law – offer the possibility of institutional reform according to which legal status is not a requirement for the applicability of corruption. A requirement is that institutions are considered to matter publicly and meet the normative standards of trustworthiness. On normative grounds respect for human dignity, self-binding and impartiality should establish trustworthy institutions that are entitled to legitimacy. In practice it means that these institutions also should in fact be legitimate. Building a rule of law does not necessarily require nation states in this reasoning. This proposal to institutional reform enables disambiguation of HPOs, which serves to prevent corruption. It enables establishing bottom-up processes to realise the rule of law in a context sensitive way, without being moral relativist (i.e. expecting HPOs to develop into a WRL).

This proposal for institutional reform applies to countries that consider themselves functioning according to the WRL-model as well. Especially because these societies increasingly are subject to hybridisation, and are becoming more sensitive to corruption and/or integrity breaches.