Corruption and the criminal law: Assurance and deterrence

Abstract:In this article, I consider the degree to which criminal justice interventions may be expected to ameliorate systemic corruption. I distinguish between two ideal types of corrupt actors – conditional cooperators and autonomous defectors – and argue that the prospects of reform through criminal justice are greatly affected by the relative preponderance of each type. When conditional cooperators predominate, the criminal law serves primarily to provide assurance that a perceived social norm is effective, in that the norm is both widely adhered to, and adhered to because people endorse the propriety of that norm. When autonomous defectors predominate, the criminal law serves primarily to deter would-be cheaters by attaching costs, at least in expectation, to cheating. Because patterns of compliance based upon a social norm tend to be self-reinforcing, unlike patterns of compliance motivated by fear of sanction, I argue that the prospects of sustainable reform through criminal justice interventions is likely to depend to a substantial degree upon convincing people to trust social norms rather than rely upon their private judgments of what is in their interest – that is, to become conditional cooperators.