Legalizing Bribery

India’s chief economic advisor and Cornell professor Kaushik Basu proposes (PDF) “a small but novel idea of how we can cut down the incidence of bribery” (h/t: Bruce Schneier):

There are different kinds of bribes and what this paper is concerned with are bribes that people often have to give to get what they are legally entitled to. I shall call these “harassment bribes”. Suppose an income tax refund is held back from a taxpayer till he pays some cash to the officer. Suppose government allots subsidized land to a person but when the person goes to get her paperwork done and receive documents for this land, she is asked to pay a hefty bribe. These are all illustrations of harassment bribes. Harassment bribery is widespread in India and it plays a large role in breeding inefficiency and has a corrosive effect on civil society. The central message of this paper is that we should declare the act of giving a bribe in all such cases as legitimate activity. In other words the giver of a harassment bribe should have full immunity from any punitive action by the state. …

What the paper puts forward is a small but fairly radical idea of how we can take one step towards cutting down the incidence of bribery. There are different kinds of bribes and what I am concerned with in this paper are bribes that people often have to give to get what they are legally entitled to. I shall call these “harassment bribes.” Suppose an income tax refund is held back from a taxpayer till he pays some cash to the officer. Consider a case where to buy a regular train ticket you are told that you have to pay some money under the table. Suppose government allots subsidized land to a person but when the person goes to get her paperwork done and receive documents for this land, she is asked to pay a hefty bribe. Consider the case of an exporter who has fulfilled all formalities is asked to make an illegal payment before getting a customs clearance. …

The central message of this paper is that we should declare the act of giving a bribe in all such cases as legitimate activity. In other words the giver of a harassment bribe should have full immunity from any punitive action by the state.

It should be clarified that the act of bribery is still being considered illegal, and the total punishment meted out for bribery may still be the same. That is, if under the old system, the bribe giver and the bribe taker are fined Rs. x each, what I am suggesting is that we fine the bribe taker 2x and the bribe giver 0. In other words, what is being argued is that this entire punishment should be heaped on the bribe taker and the bribe giver should not be penalized at all, at least not for the act of offering or giving the bribe. We may in fact go further and say that, in the event of a case of bribery being established in the court of law, the bribe taker is required to give the bribe, to the extent that its size can be uncovered, back to the giver. Let us, for now, go with this assumption.

The Halachic attitude toward bribery is not actually all that different; the Halachah, of course, assesses no penalty for bribery, as it generally does not for economic crime,1 but the fundamental definition of the transgression of שחד is the acceptance, not the payment, of a bribe (although the giver does violate the general prohibition against subornation), and there exists a judicially enforceable claim against the recipient for the return of the bribe:

מאד מאד צריך הדיין ליזהר שלא ליקח שוחד אפילו לזכות את הזכאי ואם לקחו צריך להחזירו כשיתבענו הנותן. וכשם שהלוקח עובר בלא תעשה כך הנותנו עובר בלפני עור לא תתן מכשול.2

1. כפל, ד’ וה’‏, and other קנסות being the exceptions that prove the rule. [↩]
2. שלחן ערוך חו”מ ט:א [↩]