EVALUACIÓN NO CONTINUA

The groundbreaking work of Edwin Sutherland (1883 – 1950), who pioneered criminological research into ‘white-collar’ and ‘corporate crime’, despite being much criticised (see Nelken, 2007a for analysis of key ambiguities), provides a framework within which transnational corporate bribery and its control may be located. Defined as ‘a crime committed by a person of respectability and high social status in the course of his occupation’ (Sutherland, 1949: 9), Sutherland’s definition of white-collar crime received much critique for its lack of clarity: this was to an extent acknowledged by Sutherland (1983: 9) himself, who indicated the use of the term was ‘for convenience’. While Sutherland’s definition focused on individuals, his research established prominent corporations as recidivist offenders, challenging the views of early criminologists concerned with the individual and sociological pathologies of lower class offenders (Croall, 2001: 2). He states:

‘Corporations have committed crimes…These crimes are not discrete and inadvertent violations of technical regulations. They are deliberate and have a consistent unity…the criminality of the corporations, like that of professional thieves, is persistent: a large proportion of the offenders are recidivists’ (Sutherland, 1983: 227)

Such ‘corporate crimes’, as a sub-category of the broader, umbrella concept of ‘white-collar crime’, have been defined as:

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‘…illegal acts or omissions, punishable by the state under administrative, civil, or criminal law, which are the result of deliberate decision making or culpable negligence within a legitimate formal organization. These acts or omissions are based in legitimate, formal, business organizations, made in accordance with the normative goals, standard operating procedures, or cultural norms of the organization, and are intended to benefit the corporation itself’ (Pearce and Tombs, 1998: 107-110).

This definition incorporates various forms of illegalities, but may be criticised for its adherence to state-defined crime along with its failure to incorporate dubious acts or omissions that have not been proscribed by criminal law; though a classification system based on ‘informed morality’ would raise further issues16. Even so, the concepts of ‘white- collar’ and ‘corporate crime’ are themselves inadequate and ambiguous, incorporating a diverse array of criminal (and non-criminal) acts and issues (although the same could be said for numerous other re-conceptualisations). Endeavours to conceptualise their meaning and extent, their perpetrators and victims, their regulation and control, or even whether they constitute crime, deviance, transgression or common business practice, have often led to difficulties. In addition, there are great methodological and theoretical problems exacerbated by the absence of adequate or generalisable empirical data (Tombs, 2005).

Despite Sutherland’s (1945, 1949) earlier work and more recent research focusing on corporate crimes, the phenomenon of corporate bribery has received minimal direct and substantial empirical attention within the criminological academic community. A simple analysis of the content of major criminological journals over the last ten years reinforces this: between 2000 and 2010 the British Journal of Criminology contained only three publications related to transnational corporate bribery, and only two of these were directly relevant to the substantive focus of this thesis. These two were an analysis of the crimes of neo-liberal rule in occupied Iraq (Whyte, 2007) and a comparative study of corruption derived from a Public Lecture (Zimring and Johnson, 2005). In contrast, the journal contained 245 separate publications on the subject of ‘murder’ and 170 on the subject of ‘burglary’ over the same period. Likewise, the leading American journal Criminology contained 0 (zero) publications on the subject of transnational corporate bribery: while a number of hits for “corruption” were available, these focused primarily on police corruption

16 _{Tombs’ (2005) chapter in the most recent edition of the Encyclopaedia of Criminology outlines in brief}

relevant definitional, conceptual, theoretical and methodological issues. Attempts to incorporate acts outside the law are often criticised for being morally rather than legally informed.

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and low-level corruption. Expanding the search from corporate bribery in international business to corruption more generally increases the available literature but shifts away from the substantive concern here. This trend is reflected in a number of other leading criminological journals17. In Germany, corruption and corporate bribery are discussed even less in the criminological literature, although this reflects not only a preference for ‘conventional crime’ but also the narrower development and emergence of criminology as an academic discipline (in the Anglo-American social scientific sense) in Germany. Issues of crime and criminality can be located largely within jurisprudence with only few university criminology departments or institutes in Germany. Some notable criminological and legal studies on corruption in Germany do nonetheless exist (see for example Bannenberg, 2002; Huber, 2002).

Analysis of the broader concepts of corruption and bribery can be found within other academic disciplines (for an overview see Shihata, 1997) such as political science (see Doig, 1984, 2003; Doig and Theobald, 1999; Gerring and Thacker, 2004; Goodin, 2010; Montinola and Jackman, 2002), economics (see Lambsdorff, 2007; Rose-Ackermann, 1999), law (see George et al., 2008) and sociology (Deflem, 1995). Literature addressing the specific issue of transnational corporate bribery can be found within the public, private and third sectors, as well as emanating from intergovernmental organisations (see chapter 8) but the limitation of such official accounts and conventions, etc., is the predilection for ‘content definitions’ rather than ‘analytical definitions’ of the phenomenon. With such accounts, it is also important to be mindful of the ‘double hermeneutic’ problem. For example, drafters of international anti-corruption conventions such as those of the UN and OECD (see below and chapter 5) place interpretations on what they are doing, meaning social scientists must interpret the interpretations of their research subjects. To do this, concepts from the social scientific language community are utilised but as demonstrated above, there is a lack of criminological conceptualisation and analysis of transnational corporate bribery. Consequently, there is a need here to import concepts and theoretical frameworks from other areas whilst being mindful of the hermeneutic problem of understanding different

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The content of six leading criminological journals between 2000 and 2010 was analysed. The titles, abstracts and full texts of all publications in this timeframe were searched for key words and phrases such as ‘corporate bribery’, ‘corporate corruption’, ‘transnational bribery’, and ‘foreign bribery’, etc. Any publications found were then analysed methodically to determine their relevance and use to this research.

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jurisdictions from different perspectives. It is important to establish a broader framework of contemporary governance that provides the context for these processes.