Captured by Evil

Captured by Evil: The Idea of Corruption in Law

LAURA S. UNDERKUFFLER
Copyright Date: 2013
Published by: Yale University Press
Pages: 344
https://www.jstor.org/stable/j.ctt5vm38s
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  • Book Info
    Captured by Evil
    Book Description:

    One of the most powerful words in the English language, "corruption" is also one of the most troubled concepts in law. According to Laura Underkuffler, it is a concept based on religiously revealed ideas of good and evil. But the notion of corruption defies the ordinary categories by which law defines crimes-categories that punish acts, not character, and that eschew punishment on the basis of religion and emotion. Drawing on contemporary examples-including former assemblywoman Diane Gordon and former governor Rod Blagojevich-Underkuffler explores the implications and dangers of maintaining such an archaic concept at the heart of criminal law.

    "Underkuffler challenges the traditional rational and logical characterizations of corruption and defends a highly original and insightul proposal. In her view corruption is an emotional concept grounded in religious ideas defying traditional criminal law doctrines. This book is a fantastic contribution to the study of corruption as well as more generally to the study of law and culture."-Alon Harel, Hebrew University Law School

    eISBN: 978-0-300-19530-9
    Subjects: Law, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. ACKNOWLEDGMENTS
    (pp. vii-viii)
  4. INTRODUCTION
    (pp. 1-6)

    The subject of this book is corruption.

    ʺCorruptionʺ is one of the most powerful words in the English language. When (for instance) we think of corruption of food, human bodies, or other physical objects, we think of something that is fundamentally or revoltingly altered, impure, rotten, or worse. When we think of corruption in government—the subject of this book—the impact of this word is equally powerful. Charges of corruption in public life have condemned men, destroyed the lives of women, and accelerated the decline and fall of governments. Corruption is something that human beings instinctively loathe, and that...

  5. 1 EXPLORING CORRUPTION: The Inadequacies of Traditional Theories
    (pp. 7-53)

    Corruption, as an idea in politics and government, has been the subject of extensive academic analysis and commentary. For many years, political scientists, sociologists, and legal academicians—those groups that dominated the field—generally assumed a particular understanding of corruption and proceeded to study its causes, effects, and methods of prevention. Corruption, for instance, was assumed to be bribery and like acts, with little attention given to the precise contours of the idea or what the use of this idea added to the simple list of prohibited acts.

    In the 1970s and 1980s this changed, and more sophisticated analyses began...

  6. 2 THE IDEA OF CORRUPTION: Toward a Deeper Understanding
    (pp. 54-73)

    In the prior chapter, we found that traditional theories of corruption—although useful as far as they go—fail to capture all that we mean by the concept of corruption. Although violation of law, breach of duty, inequality, abuse of power, and so on, seem to describe parts of this idea, they do not capture all that we commonly mean by this concept.

    In this chapter, I establish why this is true. I argue that the common idea of corruption is, in fact, far deeper and more complex than traditional academic theories acknowledge. First, corruption is an explicitly moral notion—...

  7. 3 CORRUPTION-AS-DISPOSITION: A Different Crime
    (pp. 74-89)

    So far, we have seen that corruption, as commonly under­stood, confersa statuson the one who is accused. A person, when corrupt, has changed. Evil has captured her being, her essence, her soul.

    The question that arises is how this status is different from the status that accusations or convictions of crime otherwise present. For instance, if someone is labeled a ʺburglarʺ or a ʺthief,ʺ or even—quite generically—a ʺcriminalʺ or a ʺfelon,ʺ those statements clearly confer a status as well. Is there some­thing more essential or more damning about the status that corruption confers than there is...

  8. 4 AN EVIL DISPOSITION: Further Explorations
    (pp. 90-105)

    As we have already established, the idea of corruption—as commonly understood—is a dispositional idea. It is not a statement, simply, about acts; it is a statement about character. It is about moral degradation and moral failure. To call someone corrupt is to make a statement about the fundamental character of the accused.

    There are, of course, many possible shades of bad character. Those who are lazy, shirkers, boastful, liars, cheats, or exploitative of others might all be deemed persons of bad character, although some might be considerably more morally reprehensible than others. In the case of corruption, there...

  9. 5 CORRUPTION AS CAPTURE-BY-EVIL: Desirable or Not?
    (pp. 106-140)

    The idea of corruption as capture-by-evil captures many of our intuitions. Its use in law, however, is fraught with problems. As a dispositional concept, the idea of corruption as capture-by-evil potentially contravenes the idea that we should punishacts, notpersons. In addition, invitations to decision makers to implement subjective ideas of evil are arguably invitations toward standardlessness, emotionally driven prosecutions, and other violations of basic guarantees of the rule of law. As Robert Brooks so well stated, ʺPublic anger at some exposed villainy of this sort is apt to be both blind and exacting.ʺ¹ This idea of corruption might...

  10. 6 COSTS AND BENEFITS EXAMINED: Three Settings for Corruption
    (pp. 141-222)

    There is no shortage of recent tales of corrupt politicians who were claimed to be captured by evil. We shall examine the cases of four individuals whose actions cover a spectrum of allegedly corrupt conduct: Diane M. Gordon, former state assemblywoman from Brooklyn, New York; Rod R. Blagojevich, former governor of the state of Illinois; Don Siegelman, former governor of the state of Alabama; and Eliot Spitzer, former governor of the state of New York.

    In the spring of 2008, Diane M. Gordon—a former state assemblywoman from Brooklyn, New York—was tried on corruption charges in state court. After...

  11. 7 CORRUPTION AND MORAL VALUES: Some Implications for Government
    (pp. 223-243)

    The idea of corruption as capture-by-evil stresses corruptionʹs roots in moral ideas. Corruption, as commonly understood, is not simply a violation of law or the breach of a public duty; it is the engagement in evil, the transgression of deeply held moral norms.

    This chapter explores the implications of this idea of corruption in various practical contexts of government. The strength of this idea of corruption is its recognition that corruption operates—inherently—as an alternative moral system, which thrives when the previously existing normative system is weakened or discarded. This explains why an increase in corruption has so often...

  12. 8 CODA: Corruption and the Rule of Law
    (pp. 244-247)

    The idea of the rule of law is of unquestioned importance in the liberal democratic political tradition. Indeed, it is—in some form—essential to human interaction. The idea of the rule of law is the centuries-old solution for mediating interhuman conflict over applicable moral principles and for controlling the despotism of rulers.¹ The law, as conceptualized by this idea, is an articulated set of rules, objectively enforced. The importance of the rule of law in Western jurisprudence has been expressed in ringing terms: ʺ[L]aw becomes necessary to make life in society tolerable…. Given the [contentious] nature of man, law...

  13. CONCLUSION
    (pp. 248-252)

    It is fair to say, after our examination, that corruption is a troubled concept in law. The traditional understandings of corruption, used in law—corruption as the breach of duty, corruption as the quid pro quo transaction, corruption as illegality or inequality, and so on—capture parts of this idea, but not all. Animating these technical and rational understandings in spirit and practice is another, quite incommensurable concept. Corruption, under this deeper (and popular) understanding, is a raw moral idea. It invokes ideas of ʺdepravityʺ and ʺevil,ʺ human frailty and temptation. It is the capture of individuals and political systems...

  14. NOTES
    (pp. 253-322)
  15. INDEX
    (pp. 323-334)