Excerpts from the Book, “The Law as the Helper of Corruption and of the Underdevelopment of Nations”
The Corruption Formula: C=C (Contingency is Corruptibility)
On The Science of Corruption
The more contingent a decision is, the more corruptible it is. The less contingent a decision is, the less corruptible it is. Invariably, secrecy, discretions, ambiguities, exceptions, appearances and all manner of justifications, will be co-opted by private interests against the common good. Opportunities for corruption, will result in corruption. Man, is too self-centered, too insecure and too weak against the glitters and the spells of power, to let go of the opportunity for self-enrichment or of private gain, when doing so would attract little or no legal sanction or
condemnation. The best preventive solution against corruption therefore, is not to depend on the goodwill or character of men in power. Rather, the solution is to reduce legal opportunities for corruption and to minimize contingencies in decision-making on any matter affecting the declaration, the allocation and the enforcement of rights, entitlements, benefits and powers.
The modern legal system including the entire superstructure of governance, is very corruptible and incapable of stopping corruption under its current rules, principles and validations. Indeed, a great deal of corruption cannot occur without the modern law. It is the law that creates the opportunities and the defenses for the conversion of the common good into private wealth. In order to understand how this happens however, let us discuss the two functions of the law in the modern era. At present, the law deals primarily with a). reality and b). “craftity”. The reality function of the law concerns itself with truths and facts. The craftity aspect of the law does not concern itself with truths or facts but with form or with legal craftsmanship. The main preoccupation of craftity is with jurisdictions, precedents, procedures, expectations and appearances. In other words, whereas with reality, legal validity is founded on truths, in craftity, legal validity is founded on abstractions. That’s all. But as authorities change very frequently and justify their actions and decisions with opposing: tribes, agenda and relative logic and philosophies, it must follow that legal abstractions are in essence, political, not universal, not permanent but shifting, subjective and manipulable by power. Herein lies the big loophole for corruption. The law, not truth, is the authority and the authority is the law. Here, something can be described as corrupt only when the authorities don’t approve of it. Regardless of what the books say, whatever is approved by the highest authorities is law and it cannot be corrupt. Think about this very carefully for in this lies the license to corruption and of the inability of any new legal regime to justifiably prove the “corruption” of the predecessor-legal regime.
Law works best when it deals with veritable (truth-able) binaries: namely true or false conclusions based on facts or reality. When the law is after truths, facts and objectivity become central to just-judgements. A court called to determine a question of fact, concludes by saying “it is” or “it is not”. Justice leads to truth and truth leads to justice. When it comes to the question of truth, evidence is unearthed by the application of logic with “proof”as key. At its best, the acceptance, finality or “just-ness” of a legal decision comes simply from the “undeniability” of the legal conclusion. When the judgement is just it shows us the truth and we submit to it because we see it. However, the law is not all about truth. Increasingly, the modern law preoccupies itself with the creation, distribution and the preservation of preferences declared and enforced as rights or entitlements resulting in limited access to projects, contracts, powers, goods, services, opportunities and many other tangible benefits for some people. The “just-ness” of the law on wealth-power distribution is not measured by the same yardstick as the truth-searching function of the law. When it comes to wealth and power distribution, the measure of the law is not facts; it is not evidence; it is not proof; it is not truth but preferences: preferences of the authorities as they deem fit. Through selected rules, discretion, exclusive jurisdictions, abstract narratives and the elastic power of asymmetrical interpretations, the modern law gives the authorities the power to declare as legal anything they deem fit as legal. On the core function of the law as what authorities decide, the main pillar for judgement is status or “who” the decision-maker is, with the the primary basis for its acceptance being its power. Unlike the law as truth-seeker, the law as power-distributor does not need proof or truths to justify its decision.
All that is required to make a decision legal is to have it affirmed as such by the highest preferences-affirming authorities. Here, the acceptance or “just-ness” of the decision does not comes from its logic, or truths but from its mysteries, from its power, from its irresistibility and and therefore, of its “un-appealability”. So, on the one hand the law is justified by truth to which we all submit. On the other hand, truth matters not in most respects, as the modern law is justified by power. Both aspects of the law have benefits as well as problems. But the power-sharing function of the law, it appears, is helper of corruption. For in effect, it equates power with justice and allows every decision to be justified at law, as long as it is backed by the authorities. What the authorities do cannot be corrupt because what the authorities do is legal. Where truth does not matter, investigations and inquiries do not matter either. When justice is authority, subjectivity, not objectivity, rules. Increasingly, the law is becoming less concerned about truths and more and more about “crafts” as I have already explained. In the crafts of the law lies the figures of graft. The problem of corruption is not a matter of character. It is a systems’ problem. The system is corruptible and corrupting. It offers plenty of opportunities for self-enrichment and for self-empowerment. The law creates opportunities for corruption and it offers the procedures and justification that make corrupt actions legal and unimpeachable. Let me put it this way. The issue of corruption is extremely important for under-development. The reason simply is that there are three main causes of underdevelopment and they are: a). conflict, b), incompetence and c). corruption.
Of the three, corruption is the worst for it is the mother of the other two.
The modern law is an enabler of corruption. The corruption-enabling aspects of the law are fundamental to the legal system and they cannot be removed by amendments or by reforms. The biggest weakness of the law is that the legitimacy of any ruling, decision or judgment does not happen because it is obvious, incontrovertible or truthful. Rather, legal legitimacy is founded on the authority of the person saying or doing it. Authority is legality. The law is not so much a question of facts or of rights as much as it is an issue of identities and of the limits to individual human objectivity and selflessness. In so far as what the authority calls legal is what is allowed, it must follow that the law can brand and justify corrupt conduct as legal and thereby grant immunity to the morally corrupt for their unjust loot of the national wealth. The modern law is not about debates or about so-called justice. The law is about authorities and about what they assert as legal. Regardless of the back and forth on any matter, only the person with the legal-seal, can certify something as legal. I repeat. That which is legal is what the final authority calls legal. You call it corruption; they call it legal. Who is right? The person with the legal authority is right because according to the law, what is legal is that which the final authority calls legal. In so far as we all agree that the saints are not many, it must follow that legal-corruption may be everywhere.
The issue of corruption is very important for developing nations in particular. Corruption leads to underdevelopment. For a major effect of corruption is that it diverts scarce resources and skills that are necessary for nation-building, towards pocket-building and towards private mansions. The deeper the corruption, the more underdeveloped the nation would be. Without the law the greater part of corrupt behavior and corrupt transactions might be impossible. As I will soon show below, the law extends and enhances the ability of the natural man to engage in corrupt behaviour in multiple jurisdictions with countless persons. Developing nations in particular have to start asking very important questions about the consequences of the laws that they have inherited from their colonial masters and taken for granted. Nevertheless, the problem is not limited to so-called third world or developing nations. The issue is about the modern law in general as constituted globally. As a man-made system, the law has inherent problems of corruptibility that arise from the manipulability: of its forms, of its principles and of its rationales. Unlike numbers whose fractions or factors can be calculated with precision, the words, the principles, the assumptions, the precedents, the interpretations and the justifications that make up every statute or judgment are dirigible and corruptible through selective narratives and assertions whose validity ultimately rest on no more more than the weakness of the challenger to set them aside.
The Law is A Show
It is important to understand that the modern law is so many ideas put together. The flaws of the ideas floor the laws. Man never makes a perfect thing. Sustainable development of nations can only happen through empowered citizenry and through anti-corruption systems made useful by the conscious, systematic and incessant efforts of learned and alert citizens continuously searching for corruption weeds and burning them. This simple book lays the foundation towards understanding the true relationship between the modern law and corruption. My simple statement is that the law creates the powers, the opportunities and the justifications that enable many decision-makers to act in ways that are legal in form but corrupt in substance. The law is a show. it has its props and rules. No matter how good your case may be, you can’t win by showing up and praying for a win. On the other hand, no matter how bad your case may be, you can win if you know how to play with a superior stagecraft. We make a big mistake when we think of the law as anti-corrupt by nature or by design. It is not. The law is a management system for social order. It is a continuum that can manage corruption as well as goodness. The law can be used against or for corruption. Although the desire to use the law to tackle corruption and for development is intuitive, well-meaning and a universal practice, my theses is that ‘corruption’ is part and parcel of our modern legal culture. Corruption is not necessarily an aberration or something that bad people do against the law. Corruption is more often than not the result of self-enriching opportunities offered by existing legal systems, exploited by those fortunate to be in control, in a world of competing strangers entitled to exploit one another legally.
We must first admit the corruptibility of the law and then take steps to fix them. Legal diseases require legal antidotes and cures. Until the issue of the corruptibility of law is tackled decisively, no amount of well-meaning anti-corruption legislation can be effective. Second, we need to invent and work with multiple layers of decentralized and technologically based anti corruption management processes and applications that prevent a few people from having the ability to access, to control and to corrupt public funds and benefits. In decentralizing decision-making and the allocation of sources, we must learn from nature. Entitlements should be decentralized, fixed, published and made “automatically” and easily accessible to local beneficiaries so as to prevent selfish discretion, abuse, misapplication, manipulation, favoritism, delays etc. in project award, in project management and the allocation of public funds. Citizens must know; they must participate in and must take charge of the budget process and of finances in respect of local projects. Instead of top down budgeting that opens itself to arbitrariness and to “discretion-corruption” at the top, down-top or local to national financing, forces the decision on the allocation of resources for a community to be based on prioritized needs and therefore, capable of being fixed and accounted for logically as part of the national budget. Not only does this enable greater citizenry control and involvement in local projects that affect them, the fixing of budgets based on the real needs of the people, creates entitlements and public awareness of what is available for what in the community. This minimizes corruptibility of local budgets and projects by third parties and capitals. For greater effectiveness, all citizens including the very young, should be
continually educated as to their rights and of the countless ways in which such rights can be subverted by corrupt persons. We should absolutely do our best to ensure that patriotism, neighbourliness and honest dealings, take center stage in the hearts and minds of all of us. This must start with a comprehensive and continuing education of everybody from our parents to our chatrooms.
Third, beneficiaries or stakeholders of every project should be entitled to full disclosure and to all information including total funds available for the proposed project before it is awarded. The people should also be entitled to know of available options for project execution and of the identities of all participating bidders, contractors and interested parties. They should also be entitled to all technical and financial assessments concerning all proposals and the criteria for the assessments. Fourth, the locals should have the clearest power of objection to any project for which required information is missing or whenever available information shows malfeasance, incompetence, negligence or any other fact that shows that the community or the nation has been cheated or likely to be cheated or harmed. The locals should also have the power to object and to halt any project which is harmful or likely to have injurious effects on their, health, development, community and welfare. There should be a presumption in favour of the locals so as to result in automatic injunction against any such projects until further order of the courts.
Zero-costs, simple, quick, specialized and fair courts should be set up for this and there should be an amendment of the Constitution of each nation to ensure that such courts become effectiveness, sustainable and above political or other manipulation. Fifth, there should be self-updating, Intelligent Criminal Universe softwares and applications to map out, to predict and to detail sophisticated criminal thinking, criminal arrangements and possible criminal inventions and innovations for the purposes of circumventing or taking advantage of legal loopholes and shortcomings. In all things, we must find reliable, affordable, practical, self-updating, impersonal decision-making systems using manifest and stealth applications and algorithms that randomize, machinize and reduce the personal element in important decision-making. We need to identify and minimize the possibilities of subjectivity and favoritism affecting judgments, awards of contracts and expenditures of significant quantum. Randomize, depersonalize and machinize important decisions. Let the power to award and the manner of awarding benefits be determined solely on the greatest best interest of the nation by impersonal artificial intelligences that operate solely for the good of the nation. I am aware that human beings would still need to program the systems but we can always create effective systems to reduce or to prevent all possible manipulation of the intelligences. In any event, we have no choice but to go in that direction.
The modern law is an enabler of corruption. This is not something that can be done away with through this or that anti-corruption legislation. Increasing surveillance or setting up special prosecutors’ offices won’t do much to solve the problem. The sheer number of actors and of the daily frequency of the program, is too much for a few law enforcement officers and offices to handle. For those who are very good at technical legal compliance, deterrence has no effect, for the reasons discussed earlier. The corruption enabling aspects of the law are inherent in the structure of the modern law. No amount of anti-corruption legislation can undo the inherent corruptibility of our modern legal systems. I have already outlined some of the necessary solutions. I am not saying we should abandon the law. On the contrary, what I am saying is that we must admit the weaknesses of the law and work wisely to solve the problems. In addition to empowering citizens to help themselves, we must turn to reliable management programs including self-updating, stealth and plain anti-corruption technologies that are not easily corrupted. Developing nations in particular must be wary of using the law as it is, to advance their development agenda. For as I have shown in this piece, the law has serious corruptibility problems. The wealth of the nation and of moneys coming into the country for development through legal programs can and will be corrupted legally. As long as legal corruption exists, underdevelopment would continue in many nations. To overcome corruption and underdevelopment means the undoing or the disabling of the laws that help create the air of corruption and of under development. Peace!
By Nana Oppong
The writer is the President of the Anti-Corruption Institute (ACI)