The Fit Between Changes to the Global Corruption Regime and Indigenous Perceptions of Corruption in Kazakhstan

The study of corruption by both scholars and policymakers has undergone a startling transformation in the last decade. What once underwent almost no scholarly examination now inspires dozens of articles and books.\u27 What once was not even mentioned in international financial institutions is now a centerpiece of reform efforts.2 What once played virtually no role in legal theory now represents-in the form of an overwhelming international consensus that transnational bribery should be criminalized and that other legal reforms should be undertaken-a dramatic change in the international legal regime. The focussing of theoretical attention on corruption and the change in international policymakers\u27 attitudes have not been accompanied by a similar surge in the empirical study of corruption. 4 The lack of empirical research, particularly into attitudes and perceptions toward corruption, is unfortunate for at least three reasons. First, legal scholars and policymakers must have an empirical understanding in order to effectuate the changes to law and policy demanded by the change in the international regime.5 Second, as a theoretical matter-particularly with respect to theoretical explanations of international regime changes-an understanding of other attitudes and perceptions is necessary to deal with issues of imperialism, economic efficiency and allocation, and institutional choice.6 Third, and most interesting, the anecdotal but very persistent notion that corruption is embraced and accepted by some cultures -that it is a normal way of doing business in some places -cries out for empirical testing. This Article reports on and analyzes the results of a survey conducted in the Republic of Kazakhstan, a former republic of the Soviet Union located in Central Asia. Much of the survey asked questions regarding attitudes towards and perceptions of corruption. For those who are interested in non-Western attitudes toward corruption, Kazakhstan represents an excellent source of information. Kazakhstan is culturally distinct from the West and from Asia, a distinction amplified by Central Asia\u27s physical isolation. Kazakhstani ideas of government and other institutions differ markedly from those in the West. Central Asia as a whole has been physically and politically isolated from the West for several generations. Rather than simply asking Kazakhstani respondents whether they embrace corruption or whether corruption is part of the inherent Kazakhstani culture,8 the questions in this survey can be analyzed in four different ways: absolute evaluations of the amount of corruption, relative evaluations of changes in the amounts of corruption, the public salience or importance of corruption, and support for anticorruption regimes.9 These four means of analyzing the responses indicate that corruption is overwheliningly condemned in Kazakhstan and that the vast majority of Kazakhstani support anticorruption reforms. These findings are particularly robust because they cut across ethnic, gender, income, education, and settlement lines; even when respondents are sorted according to these characteristics the rejection of corruption is still overwhelming. These findings have obvious importance to those engaged in the study or implementation of the new global anticorruption regime. The findings lend little support to theories that explain regime change in terms of dictates by hegemons. The findings indicate broad support for anticorruption measures in Kazakhstan and even indicate specific measures that might be undertaken. Before discussing the specific findings, however, it is necessary first to discuss the general nature of corruption

The Neomercantilist Fallacy and the Contextual Reality of the Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act (the “Act”) may be one of the most misunderstood pieces of legislation within the federal corpus of laws. Its genesis is often ascribed to an almost reactionary moral indignation over the abuses of a presidential administration, whereas in reality Congress had more prosaic objectives, one of the more important of which was to preserve and enhance the strength of the global market. The Act has often been described as the first and for a time only law of its kind, even though in reality it joined a very similar Swedish law.1 Most seriously, the Act has been analyzed through the prism of a mode of thought that could be called neomercantilism, a mode of analysis that this Article demonstrates is fundamentally erroneous. Neomercantilism draws from the much older political theory of mercantilism, which sought to increase national wealth through managed trade. Mercantilism suffered from a fundamental misunderstanding of concepts such as wealth and trade; similarly, neomercantilism fails to understand the world as it actually exists. This Article identifies a basic fallacy in the neomercantilist mode of thought, namely that business can be thought of as siloed within national boundaries and that some sort of neomercantilist scorecard can be based on those siloed national champions. Analysis of the Foreign Corrupt Practices Act redounds with neomercantilist thought. Scholars persistently speak of the Act as though it and only it applies to U.S. businesses, and as though U.S. businesses are constrained by no other transnational corruption laws.2 Practitioners and policymakers often adopt the same mode of analysis.3 Neither group is correct. The Foreign Corrupt Practices Act by its very definitions applies only to business firms or their affiliates that engage in some form of transnational activity.4 The reality of transnational business activity, often labeled globalization, consists of networks of relationships that take little notice of national borders and which cannot be siloed. Moreover, Congress intended for the Act to be part of a global regime to control bribery.5 That regime has been created and is now the relevant regulatory environment in which transnational business occurs. The Foreign Corrupt Practices Act is domestic legislation, an integral part of the federal law of the United States. Meaningful analysis of the Act, however, must take account of the contextual reality of the transnational business firms regulated by the law and of the global market that the law is intended to protect. To do otherwise not only lacks intellectual rigor but also risks losing the benefits to be accrued from a well-functioning global market. This Article begins in Part II with the definition of corruption used by Congress in the Act. Part III explores Congress’ motives in enacting and amending the Act. Part IV demonstrates the use of neomercantilist thought in analyses of the Act, while Part V explains the fallaciousness of that thought from the perspectives of both business and regulatory reality. Part VI examines proposals to alter the Act, and shows how neomercantilist thought skews analysis of those proposals and fails to identify important issues

Multiple Communities and Controlling Corruption

Corruption presents an assurance problem to businesses: all businesses are best off if none act corruptly but in the event that corruption occurs are better off if they act corruptly than if they do not, and because there is no assurance that other actors are not cheating a business does not know how to act. The usual solution to an assurance problem – criminal sanctions imposed on cheaters – does not work in a corrupt system. Integrative Social Contract Theory suggests a solution to the assurance problem. Application of Integrative Social Contract Theory to corruption demonstrates that in the case of corruption it has advantages over international law, and that the theory’s elegance lies in its recognition of norms generated by multiple communities

The Psychic Costs of Violating Corruption Laws

Understanding corruption is imperative for legal scholarship, both as an intellectual subject and because corruption impedes the operation of law in much of the world and inflicts damage on well-being, governance, and quality of life. Legal scholars have contributed substantial quantitative research on corruption; this paper adopts a qualitative methodology. The similarities and differences between Singapore and Malaysia present opportunities for research. Interviews with discussants in those two countries indicate a real difference in the degree to which corruption laws have been internalized. Differences in the degree of internalization suggest differences in the psychic costs imposed by violation of corruption laws. Discussions also reveal other costs considered by actors contemplating violation of the laws. Discussions also indicate that corruption manifests itself differently in each country, which does not comport with quantitative analyses that treat corruption as a unified, linear phenomenon. Finally, discussions suggest that corruption can be controlled