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The Value of the Law in Democracy

As already indicated, the role of law as a means of controlling behavior is very limited. It is a weapon in the state’s normative armory but it is rarely the strongest and in some areas it is totally ineffective. It is an essential backstop in persuading officials and citizens to avoid corrupt behavior. It reinforces ethical standards for the good and provides some potentially strong reasons for those who are not (although the strength of those reasons is limited by the perceived likelihood of detection). However, the main game lies elsewhere. Law actually has a role to play in that ‘main game’ by creating institutional structures, setting out the powers of public officials, and monitoring the exercise of those powers under judicial review.
In best practice regimes, law already does these things. However, there are a number of ways of moving beyond best practice. Most of them ensure that the law is ‘in synch’ with ethical standards and institutional reform so that the three really do operate as a ‘trinity’ rather than as disparate, uncoordinated, and potentially conflicting integrity measures.

Determine What is Required

Law can play different roles — indicating what is acceptable and unacceptable behavior, providing reasons for action, removing offenders from the position where they can re-offend, creating institutions and structures, providing review mechanisms, etc. Every law that has a part to play in the integrity system of a jurisdiction should be considered in terms of the role it is intended to play and the role that it can play, and be amended accordingly.
In this process, drafters and politicians should always be aware that there is a more constructive use of laws than merely imposing higher penalties. They should also be aware of the value of laws that declare values and the means to achieve those values.

However, where penalties are involved, consideration should be given to the harm that is caused by corruption and the forms of penalty that will weigh most heavily with potential offenders.

Ensure that Laws Reflect and Back up Ethical Codes

Following the drawing up of the general public sector ethical code, the laws creating offences for public officials and those who deal with them should be reconsidered to ensure that they play their backstop role. First, public sector reformers should consider at what point on the normative continuum legal sanctions should be imposed. Secondly, laws should be re-drafted in terminology that reflects the ethical norms they are supporting. Thirdly, such laws should be considered for their consistency with ethical standards, ensuring that the most grievous ethical breaches are criminalized and that behavior which is ethical is not.

Setting the Powers of Public Servants

We have already remarked on the importance placed on ‘legality’ by public servants. Laws should spell out what public servants have the power to do and the purposes for which they have been given those powers. Legislators should consider very carefully the purposes for which power is given and ensure that they provide only the powers that are needed. (This should be contrasted by the tendency to grant very broad powers to public officials. This is not surprising where laws are frequently proposed by the same public servants who would exercise them). Such an approach also makes judicial review and administrative law generally easier because one can interpret the inevitable ambiguities in the powers conferred in terms of the purposes for which they are given and the justifications for doing so.

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