The legacy of geographical morality and colonialism: a historical assessment of the current crusade against corruption.

• Author: Ala'i, Padideh

ABSTRACT

This Article examines the legacy of the rule of geographical morality--that is, the norm by which a citizen of a country in the North may engage in acts of corruption in any country in the South, including bribery and extortion, without the attachment of any moral condemnation to those acts. Part I of the Article begins by reviewing the impeachment trial of Warren Hastings, who served as the Governor of Bengal from 1772 until 1785, on charges of bribery and corruption. It was during that impeachment proceeding when the words "principle of geographical morality" were used to described Hastings' defense.

Part II of the Article then examines the revisionist approach of social scientists first developed in the 1960s. The revisionists embraced moral relativism and concentrated on external causes of corruption instead of individual moral shortcomings. This approach perpetuated the rule of geographical morality by allowing multinational corporations to hide behind "culture" as the reason for their participation in corrupt business transactions in Africa, Asia, and Latin America. Next, the Article evaluates the recent post-Cold War discourse on corruption and bribery, which rejects geographical morality by adhering to a universal standard of conduct.

In Part IV, the Author discusses regional and global legal initiatives against corruption from the 1970s to the present. These initiatives seek to eliminate the rule of geographical morality by requiring uniform standards of conduct by private and public officials, irrespective of geography. The Article concludes with a discussion of the legacy of geographical morality and its divisive impact on the current anti-corruption discourse.

The servants of the nation are to render their services without any taking of presents.... To form your judgment and then abide by it is no easy task, and 'tis a man's surest course to give loyal obedience to the law which commands `do no service for a present.' The disobedient shall, if convicted, die without ceremony. --Plato.(1) In recent years, the international anti-corruption(2) campaign has achieved unprecedented momentum and rhetorical success.(3) Under the legal definition of corruption, a bribe must result in a breach of some sort of a fiduciary duty or trust.(4) Nonetheless, corruption is both a legal and a moral concept as it is possible for a corrupt act to be improper without being unlawful. Anti-corruption advocates argue that systemic corruption at all levels of government, particularly in the form of bribes, is a major impediment to economic development in the South(5) as well as being a threat to democracy, democratic values, and the rule of law.(6) This Article does not address the accuracy of such claims, nor does it question the laudable motives of those who engage in such discourse and pursue the current anti-corruption agenda. Instead, this Article argues that given the fact that anti-corruption rhetoric has played a significant role in the international economic and political relations between the developed North and the developing South, it is imperative that the current anti-corruption campaign appreciate why past multilateral attempts at combating corruption at the United Nations and elsewhere have been unsuccessful and have been viewed with skepticism by the peoples and governments of the developing South. Specifically, this Article argues that one legacy of colonialism--the "rule of geographical morality"--has infected the discussion of transnational corruption and bribery. The "rule of geographical morality"(7) is defined as the norm by which a citizen of a country in the North may engage in acts of corruption in any country in the South, including bribery and extortion, without the attachment of any moral condemnation to those acts. It has been one of the bases by which the North has justified exploitation of the South. More importantly, the rule of geographical morality is based on a world view that non-Christian, non-Western, and non-white individuals are fundamentally immoral and corrupt when measured by European standards. This Article will explore how the rule of geographical morality and its attendant world view continue to haunt the anti-corruption discourse, making, from the perspective of the South, any discourse on the subject of corruption--even one aimed at discrediting geographical morality--inherently suspect.

This Article is divided into five parts. Part I reviews the facts, circumstances, and outcome of the impeachment trial of Warren Hastings, who served from 1772 until 1785 as the first Governor of Bengal, on charges of bribery and corruption. This example was chosen partly because the details of the proceedings are relatively accessible--thanks to the "Works" of Edmund Burke--and partly because it demonstrates the complex and multifaceted legacy of colonialism, which resists generalizations.(8) This Article will show that the issues raised during that impeachment trial, centuries ago, continue to be relevant today to the discourse on corruption and bribery in international business. Part II reviews the evolution of the discourse on corruption and bribery from one based on "morality" to one intentionally divorced from morality. Specifically, this part reviews the moralist approach and the successor amoral "revisionist" approach developed by social scientists in the 1960s, which rejected a priori moral judgments, embraced cultural relativism, and concentrated on external causes of corruption instead of individual moral shortcomings. Part III explores the more recent, post-Cold War discourse on corruption and bribery, which rejects the revisionist thesis and cultural relativism. This modern approach emphasizes that globalization dictates rejecting geographical morality by adhering to a universal standard of conduct in international business that applies to both the North and South.(9) This current discourse has inherited the universalism of the moralist discourse on corruption and combined it with the revisionist reliance on empirical and economic data. This approach to corruption also emphasizes the external (revisionist) explanations for corruption--for example, non-democratic institutions, economic underdevelopment, and weak judiciaries. But it has also begun to accept the internal (moralist) explanations for corruption, i.e., lack of integrity and ethical standards among public officials. Part IV discusses the current multilateral initiatives against corruption and bribery undertaken by the United Nations, the Organization of American States (OAS), and the Organization for Economic Cooperation and Development (OECD). Importantly, these initiatives seek to eliminate the rule of geographical morality by requiring uniform standards of conduct by private and public officials, irrespective of geography. This section of the Article attributes the past failures of multilateral or transnational initiatives to the legacy of colonialism and geographical morality, which have sown the seeds of distrust between the North and the South. Part V concludes by looking at the unique challenge that the legacy of the rule of geographical morality and its attendant world view poses for the current anti-corruption campaign.

1. THE IMPEACHMENT OF WARREN HASTINGS AND THE RULE OF GEOGRAPHICAL MORALITY

   Power corrupts and absolute power corrupts absolutely. --Lord Acton In 1787 the British House of Commons impeached Warren Hastings on charges of corruption and bribery during his tenure as the Governor-General of Bengal from 1772-85.(10) Eight years later, in 1795, the British House of Lords acquitted Warren Hastings of all charges.(11) Regardless of the outcome, the record of the seven-year impeachment proceedings is a good starting point for our study of the discourse on corruption and bribery and the impact of colonialism on that discourse.

   1. The Prosecution's Case Against Warren Hastings

      Edmund Burke led the prosecution against Hastings(12) and was assisted by Richard Sheridan, among others.(13) The prosecution not only argued that Hastings had engaged in simple acts of bribery, but also that he had created a system of government which was corrupt and whose sole purpose was to exercise "arbitrary power" to plunder India without restraint or respect for the rule of law.(14) Burke described this corrupt system of government during his opening speech before the House of Lords as follows:

      We wish your Lordships distinctly to consider that he did not only give and receive bribes accidentally, as it happened, without any system and design, merely as the opportunity or momentary temptation of profit urged him to it, but that he has formed plans and systems of government for the very purpose of accumulating bribes and presents to himself.(15) Burke later described Hastings as "not only a public robber himself, but the head of a system of robbery, the captain-general of the gang...."(16)

      As part of this "systemic corruption," Burke argued, Hastings had enlisted the help of both Englishmen and native Indians.(17) Specifically, Hastings had enlisted Indians or "blacks," as his agents for corrupt acts of bribery more often than "whites" because they were more vulnerable and less likely to challenge him.(18) According to the prosecution, Hastings' corrupt system of government had depended on the cooperation of "black tyrants" who were "scattered throughout the country," but all of whom reported in the last instance to a European. Hastings and his "white" agents had controlled the "black natives" who took part in the first instance in the acts of corruption and bribery:(19)

      Governors, we know very well, cannot with their own hands be continually receiving bribes.... As there are many offices, so he has had various officers for receiving and distributing his bribes; he has a great many, some white and some black agents. The white men are loose and licentious; they are apt to have resentments, and to be bold...