It was with great delight that I came to review and recommend the book Preventing Corruption and Promoting good Government and Public Integrity Agustí Cerrillo i Martínez & Juli Ponce (Éditions Bruylant, Burxelles, 2017) which deals with the ability of administrative law to tackle the evils of corruption.
Let me start by explaining why the book makes such an impression on me, as an academic specializing in comparative administrative law. The first reason is that the book opens a wide and novel window for English readers into civil law thinking. The divide between civil and common law has been particularly wide in administrative law, for historical, theoretical and practical reasons and bridging it is vitally important in an era when the cooperation that is taking place on the EU level is under the threat of Brexit. Secondly, it is only in recent decades that comparatists have ventured outside their traditional domain of private law and into public law: first into comparing constitutional law and much more recently, administrative law as well. In aiming to show how the mechanisms of administrative law can effectively curb corruption, the book significantly demonstrates the advantage of administrative over constitutional law: administrative law in public law is the manifestation of ubi jus ibi remedium. Thirdly, the book’s contributors recognize how much the impact of administrative law has expanded in the current age. Administrative law encompasses a vast array of public entities, with vast powers of legislation, adjudication, and of course actual governance. Government is a huge player in private law as it is typically the largest buyer and seller in any economy as well as the largest landholder. Indeed, whole areas of law revolve around the work of an administrative agency: environmental law, health law, tax law are all good examples. The book explores another fascinating avenue: where administrative law intersects criminal law. Fourth, the book provides a major contribution in linking the law with the vast array of disinclines, such as political science, economics and psychology who also study the public administration. Clearly the study of corruption, its origins and the means to curb it, is not the sole domain of the law and this books demonstrates how interdisciplinary cooperation can be effective.
Let me try to present a short overview of book. I would start the book at Chapter 12, where Prof. Agustí Cerrillo i Martínez, introduces the entire project, explaining the potential advantages of administrative law mechanisms over those of criminal law. It also demonstrates the clear relevance of other disciplines, such as cognitive science, ethics and psychology, to doctrines and tools that we, administrative lawyers, commonly use. It turns out that good administration, transparency, ethical codes of conduct, and conflict of interest can all benefit greatly from transdisciplinary approaches. Providing examples and methodological suggestions, the chapter is quite eye opening. I would then proceed to three chapters that explore these specific familiar administrative law concepts, explaining their relevance in the effort to curb corruption on the national and international fronts. I would start at Chapter 1, also authored by Prof. Agustí Cerrillo i Martínez, which deals with transparency as a tool to prevent corruption in public administration. I would move on to Chapter 2, from the book’s fellow co-editor, Prof. Juli Ponce, that deals with the right to good administration – a concept less familiar to common law readers – and the role of administrative law in promoting good government. Finally, there is Chapter 7, by Prof. Jean-Bernard Auby, noting the similarities and differences between law’s efforts to prevent public officials from being in a conflict of interest, as a general matter, and the more specific case of anti-corruption.
The next group of chapters looks into regulation from legal and interdisciplinary perspectives: in Chapter 3, Prof. Maria De Benedetto observes how that regulation can be both a tool for preventing corruption and an opportunity for corrupt transactions, and looks for a formula that would make compliance more economically convenient than corruption by drawing lessons from behavioral sciences; in Chapter 4 Prof. Nicoletta Rangone advocates a behavioral approach to administrative corruption prevention; in Chapter 5 Luca Di Donato writes on the Corruption Impact Assessment (CIA) as a regulatory tool devised to prevent corruption and in Chapter 6 Livia Lorenzoni discusses risk-based approaches towards corruption prevention.
It is followed by a group of chapters looking at the unholy trinity: money, morality and corruption. In Chapter 9 Prof. Anthony D. Molina provides an overview on the main strategies suggested by scholars of public administration ethics for the prevention of corruption. In Chapter 10 Prof. Timothy K. Kuhner places the topic of corruption in the context of the ideological competition between classical and neo liberalism. In Chapter 8 Prof. Enrico Carloni goes from the abstract to the concrete looking into lobby regulation to prevent corruption. He looks at a lobbying regulation in various countries, expanding on the Italian model, thus linking up to the final chapter and on the only ‘country report’ – Chapter 11, where Prof. Francesco Merloni and Benedetto Ponti explain the exciting major development that have taken place in fighting corruption in Italy in recent years.
In closing: the book is clearly a stimulating, multifaceted read, and one that deserves wide reading. That said, I wish to provide two critiques of what is an otherwise excellent book. Both issues concern the books departure points: namely that there is such a thing as corruption, and that it is an absolute bad. The first critique concerns the lack of a clear and detailed discussion in the book of this starting point: what do the authors mean by the term corruption? In legal terms, corruption essentially means officials’ abuse of entrusted public power for private gain. But this is a very minimalist, criminal law oriented departure point. Other areas of the law – notably public law – and other academic disciplines may offer a more complex definition for the term. The second critique is that the book and all its contributors seem to take as an incontrovertible starting point that corruption is necessarily bad. I do not dispute this assessment (although some economists do), but I would want them to make the case especially since it seems to emanate from the moral sensibilities of Western liberal democracies, and not always resonate with other cultures, where gifting is part a of customary, relationship based way of conducting business, even official business.