Document Type

Article

Disciplines

International Law

Abstract

It is now acknowledged that corruption undermines a state's legitimacy.' But, I ask, legitimacy to do what? In particular, I ask upon what theory is this causal link between corruption and state legitimacy based? What political or ethical theory or philosophical reasoning justifies this causal connection? What conception of the state and its relationship to legitimacy can support this causal link? These questions are rarely, if ever, asked by the economists who regularly write about corruption, since most economists shun any "deep normative analysis" - in Amartya Sen's words - having to do with fuzzy issues like legitimacy. Political scientists have attempted to study corruption and legitimacy in detail, but they usually focus on a limited range of issues dealing, for example, with either the impact of state rents on the exercise of political power or comparative analyses of state-society relations relating to state-making and corruption. Such analyses, while useful from a policy perspective, do not provide a theoretical basis for grounding the relationship between corruption and legitimacy.2 In fact, despite the fact that the phenomenon of corruption is as old as politics itself, no comprehensive theoretical exposition of its link with legitimacy by political or legal theorists appears to exist.

It is not my intention in this essay to provide such a theoretical exposition. Instead, as an international lawyer, I am interested in exploring the dialectic of the relationship between corruption discourse,3 legitimacy, and human rights discourse - a dialectic defined in importance not only due to the topicality of these discourses, but also due to the convergence of corruption and human rights discourses, exemplified by the success of the NGO, Transparency International. I explore this convergence at a theoretical level to figure out how it restructures the opportunities for political action by simultaneously and somewhat paradoxically constructing the state, even as it "empowers" activists and ordinary individuals to challenge particular forms of disempowerment.

Finally I ask, in a sort of reversal of the issue, by undermining the state's legitimacy what does the corruption discourse legitimize? In particular, I am interested in the impact of corruption discourse on the ideas of development, rule of law, democracy and human rights. The purpose of this inquiry is to level a critique at the dominant forms of economic and political organization that are peddled in the so-called "Third World" under the rubric of neoliberalism and the "new law and development., 6 Rejecting these theoretical paradigms in favor of an eclectic approach that could be labeled as "critical development theory," I shall argue in these pages that corruption discourse performs the task of re-legitimating particular conceptions of development, rule of law, democracy and human rights that are elitist, statist and Eurocentric. This is quite significant, as many of these conceptions have, as a result of the crises of the last fifty-odd years, lost legitimacy in much of the so-called "Third World." This argument is another way of stating that the corruption discourse undermines a particular kind of legitimacy by discrediting a particular kind of state As a result, I shall argue that corruption discourse is not neutral and is biased against experimentation, at a policy level, of different options of fighting against corruption. In addition, I shall argue that corruption discourse would prevent the realization of many economic, social and cultural rights, even as it expands the coercive capacity of the state that is responsible for the violation of many civil and political rights. I will also briefly touch upon the policy implications of this critique for individuals, governments, NGOs and international organizations. Part I sketches the main similarities and differences between corruption and human rights discourses as they relate to legitimacy. Part II describes the task of re-legitimization performed by the corruption discourse and the ways in which it is accomplished. I conclude with some reflections on a future policy agenda for international lawyers that can provide political options for empowering citizens against corruption and human fights violations while retaining legitimacy in the eyes of those who are most at risk.

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