What is the relationship between religion and corruption
Verena Rauen * Corruption and the order of secrecy: between ethical challenge and double standards ** This article deals with the characteristic secrecy structure of corruption and the protection of whistleblowers. The central thesis is that in the fight against corruption, the so-called 'order of secrecy' is often reinforced by the pretense of morality and the recourse to a too one-sided understanding of justice as a balancing principle in public space, and thus the detection of corruption is made more difficult. With reference to the concept of ›equity‹ as a concept of ethical justice that is not aimed at compensation, a new perspective for the ethical legitimation of the protection of whistleblowers is shown, which contributes to the exposure of corruption. Keywords: corruption, whistleblower, secrecy, double standards, justice, equity Corruption and the Order of Secrecy: Between Ethical Challenges and Double Standards This paper discusses the protection of whistleblowers who break the ›order of secrecy‹ that is characteristic for corruption. The central thesis is that in the fight against corruption, an often theatrical, public representation of morality and a one-sided but common understanding of justice as a balancing principle can strengthen this order of secrecy and may thus increase the difficulty of discovering cases of corruption . Instead, referring to ›equity‹ as a different, non-balancing concept of ethical justice, the paper opens a new perspective on the ethical legitimization of the protection of whistleblowers. Keywords: Corruption, Whistleblower, Secrecy, Double Standard, Justice, Equity "[In the case of corrupt behavior] there are no obvious victims who can directly sense that they have been harmed" (Beck / Nagel 2012: 37). Introduction Corruption does not just mean exchanging bribes for illegal services. Rather, the term (from Latin corrumpere) describes in a broader sense the undermining of public order by a secret parallel order, a so-called »order of the second kind« (Priddat / Schmid 2011), 1. * Dr. Verena Rauen, Institute for Business Ethics / University of St.Gallen, Girtannerstrasse 8, CH-9000 St.Gallen, email: [email protected], research focus: business philosophy, ethics, time and economy, corruption and uncertainty. ** Article submitted on June 30, 2017; Revised version accepted on October 31, 2017 following a double-hidden expert procedure. zfwu 19/1 (2018), 57–73, DOI: 10.5771 / 1439-880X-2018-1-57 within which corrupt actors abuse the power entrusted to them for private, i.e. not publicly legitimized purposes (cf. Walzer 1983: 195ff .). Corruption often spans an entire network of corrupt actors, which emerges as a hidden system through personal trust (cf. Boissevain 1974; Streck 1995; Baecker 2000; Lambsdorff / Teksoz 2002; Bluhm / Fischer 2002; Hénaff 2010, 2011; Engels 2014) of those involved as well as the high pressure of threats of internal sanctions in the event of betrayal by the networks (cf. Stenner 2011). In the following, therefore, the main question will be how the 'order of secrecy' can be eroded by a concept of justice that is not based on the principle of balance: the conception of equity introduced by Aristotle, which is a starting point for ethical legitimation the protection of whistleblowers, who play a special role in the detection of corruption. With reference to the moral criticism of Friedrich Nietzsche, Emmanuel Levinas and Marcel Hénaff, the problem of double standards is addressed, which is not mainly caused by the fact that moral principles are subordinated to commodification, as suggested by Walzer and Sandel, for example (cf.Waltzer 1983 ; Sandel 2012); Rather, one cause of the double standards and the concealment of corruption lies in an overly one-sided view of the concept of justice as an instrument of allocation and compensation as well as in the individual blame and often theatrical representation of morality and transparency in public space. As a corrective to compensatory justice, with reference to Aristotle's Nicomachean Ethics, the term epieikeia or equity is presented as a form of ethical justice that - going beyond and correcting compensatory justice - provides a basis for the ethical legitimation and far-reaching structural establishment of a Protection system for whistleblowers. To fight corruption, various measures from a legal, ethical and organizational point of view have been presented and established in the past few decades. The problem emerges, both at the legal and at the organizational level, that the common anti-corruption procedures between the two poles of the deterrent effect of high penalties on a legal basis (see Yates 2015 among others) and compliance systems on the one hand1 and 'soft' procedures integrity management and the establishment of whistleblowing systems as well as systems of mitigation and incentives for whistleblowers on the other hand oscillate (cf. Paine 1994; Lambsdorff / Nell 2007). A combination of these two tendencies in the fight against corruption can be seen in more recent approaches to compliance management, insofar as they combine compliance and integrity-oriented concepts (cf. Stessl 2012; Wieland 2005). 1 For the certification of compliance management systems, see also the auditing standard of the Institute of Auditors (IDW Auditing Standard 2011). 58 Verena Rauen Especially in view of the above-mentioned systemic networking of corrupt actors and the associated complexity of corrupt structures within organizations, such integrative approaches make sense. However, when looking at the ethical foundations of such approaches, they often ignore a problem that is in the foreground in this article. It is about the ambiguity of corporate ethical measures to combat and prevent corruption with regard to the public representation of morality as well as the fundamental and in the tradition of moral criticism (cf., inter alia, Nietzsche (1999 ); Levinas 2002, 1974; Waldenfels 2006) addressed disparity between ethical and economic principles and their application to the concept of justice (see Heimann 2015; Rauen 2015, 2016). The integrative application of legal and ethical approaches to the fight against corruption can only take place on the basis of a recalibration of the concept of justice, as will be justified in this article. The transparent veil of corruption The representation of corporate ethics, compliance and transparency in the public space is no guarantee of effective action against or prevention of corruption. Finally, there is the problem of the characteristic secrecy structure of corruption, especially in view of the introduction of measures against it: In particular in the complex systemic structure of corrupt networks, a hidden order of circumvention can be discerned. In this sense, the effectiveness of the current anti-corruption approaches that have been established in recent years (see, inter alia, Yates 2015; IDW Auditing Standard 2011), is put in a problematic light, as the level of compliance regulations also means that their techniques Bypass can be expanded. The representation of ethical measures in public space can therefore contribute to promoting corruption within organizations by cementing their characteristic secrecy structure (cf. Boissevain 1974; Streck 1995; Hénaff 2011). The anthropologists Jeremy Boissevain and, with reference to his work on the anthropological dimension of corruption, Bernhard Streck describe the pretense of morality in public space as tending to promote corruption, insofar as it can be useful for concealing corruption. “Boissevain compared social norms to curtains that you draw in order to be able to behave indistinctly behind them. These curtains now seem to have been woven more and more densely in the course of the manageable cultural history, since elementary taking and giving out of naked greed for profit was met with ever more pronounced disapproval by the 'process of civilization'. (...) In Boissevain's picture the cultural curtain has become threadbare. One can see through and also see on the threshold of the third millennium: homo manipulator, the primitive man, who is still selfishly cultivating his relationships ”(Streck 1995: 5). 2. Corruption and the order of secrecy 59 zfwu, 19/1 (2018) Especially the concept of transparency, which is prominent in the fight against corruption, has an ambivalent character in view of Boissevain's and Streck's remarks: Because transparency is not only used for 'transparency' and thus for clarification (cf. Foucault 1977; Alloa 2017), but by increasing the complexity of information as well as by the deceptive effects of an ambiguous public representation of anti-corruption measures, it can create an effect of concealment that is more effective the more it affects the dimension of morality refers: "But, as we have seen, the curtains with which modernity wanted to hang up its archaic parts have become transparent" (Streck 1995: 7). From an ethical perspective, the problem of the representation of morality cannot be solved by distinguishing between the 'wrong' and the 'right' morality as between the two levels of a double bottom. Rather, the focus in the following is the problem that an overly one-sided understanding of morality on the basis of a concept of justice based on the principle of compensation and the resulting confusion between the concept of criminal justice and ethical justice (cf.Cohen 1904) contribute to the Block containment from corruption. Contrary to an emphasis on the individualization of guilt and the assumption of 'responsibility' by individuals in the event of corruption being exposed, this article aims to throw a concept of ethics in the sense of critical reflection and abstention from guilty judgments as a counterweight to tendencies towards criminal justice . It is definitely not the aim to suspend criminal justice in favor of “soft” anti-corruption procedures. Rather, it is the concern of this article to provide an appropriate counterpart to criminal justice through those ethical concepts that reflect criminal justice and the associated practices of public guilt and conviction and can suspend it in individual cases, especially if the suspension of criminal justice is intended in individual cases The release of far-reaching effects of the fight against corruption can lead, for example, in the case of mitigation or complete amnesty for whistleblowers. For example, the whistleblower ›John Doe‹, who anonymously leaked the so-called ›Panama Papers‹ to the Süddeutsche Zeitung in 2015, calls for far-reaching protection for whistleblowers and criticizes the still frequent legal prosecution of whistleblowers (see also Fischer-Lescano 2015) in international law: “I saw what happened to whistleblowers and activists in the US and Europe, how their lives were destroyed after they publicized what was obviously criminal. Edward Snowden is stuck in Moscow, in exile, because the Obama administration has issued an arrest warrant against him on the basis of the anti-espionage law. (...) Bradley Birkenfeld received millions from the US tax authorities for his information about the Swiss bank UBS - and was still convicted by the US Department of Justice. Antoine Deltour is currently being tried in Luxembourg for providing journalists with information that revealed how the country has attracted international companies with enormous tax breaks, ultimately costing its European neighbors billions in taxpayers' money "(Doe 2016: 1). 60 Verena Rauen In view of the importance of exposing corruption by whistleblowers, ›John Doe‹ calls for their ›immunity from the law‹ and thus draws attention to the importance of a recalibration of the concept of compensatory justice for the fight against corruption: »Whistleblowers who do the right thing, by exposing criminal offenses, whether insider or outsider, earn immunity from the law. Point. As long as governments do not guarantee legal protection for whistleblowers, law enforcement authorities will continue to depend on their own sources of information or on media reports in order to obtain relevant documents ”(ibid.). In the following, the question will be raised to what extent an understanding of ethics that goes beyond a concept of justice based on economic principles can contribute to the detection and prevention of corruption and thus unleash the existing effects of the legal punishment of corruption in the first place. In the area of tension between individual and system ethics, the focus on the corrective of criminal justice will be the conception of epieikeia or equity introduced by Aristotle and further elaborated by Hermann Cohen and Emmanuel Levinas. The dilemma of detecting corruption Far-reaching effects of criminal justice and the legal sanctioning of corruption can only be released if corruption is discovered at all. Whistleblowers and the targeted incentives for whistleblowers through the prospect of penal remission are of crucial importance (cf. Rose-Ackermann 1999: 53ff.). As the above quotation from the whistleblower ›John Doe‹ illustrates, the detection of corruption is often made more difficult by the legal system, insofar as whistleblowers face massive legal and social sanctions if they fail to remain anonymous. A brief legal report from 2015 attests the lack of a »systematic, coherent and comprehensive protection system (s)« (Fischer-Lescano 2015: 9) for whistleblowers in the German legal system: »Whistleblowers are existential dangers - threatened job loss, disciplinary measures , criminal prosecution, extra-legal sanctions - which may prevent them from performing their important role for the democratic public. For the accused, whistleblowing harbors existential - economic, political, criminal - risks and the public is limited in their ability to control, which in turn affects the guarantee of goods in the welfare state - safety, health, environmental protection, human rights "(ibid .: 3 ). Although the effectiveness of the application of criminal justice in cases of corruption that has already been uncovered is not doubted, the fact that adequate legal protection for whistleblowers is still not in place raises the question of an appropriate balance of the concept of justice. The introduction of an incentive system that gives potential whistleblowers a motivation to uncover corruption in order to then be able to take legal sanctions against corruption in the first place such a recalibration would receive further ethical legitimation. On the basis of game theory considerations, a system of so-called ›asymmetrical punishments‹ and systematic incentives for whistleblowers was proposed by Lambsdorff and Nell in 2007. Such a system of incentives opened up opportunities for potential whistleblowers to exit at crucial points in a corrupt transaction, for example after the offer or the handing over of a bribe, by promising a waiver or targeted incentives such as bonuses; The corrupt interaction partners would be systematically played off against each other by means of asymmetric penalties, ie exemption from punishment for those who uncovered the corrupt deal and full punishment for those involved who were 'betrayed': “We propose the following asymmetric design: expected criminal sanctions for accepting bribes should be low and those for illicitly supplying favorable treatment (eg awarding a public contract) to the briber high; in turn, expected penalties for paying bribes should be severe, while those for accepting the (illicit) favorable treatment mild. Moreover, we show that a bribe-taker shall only be granted ex-ante leniency as long as he does not reciprocate a bribe, whereas a bribe-giver shall be entitled to leniency only if he self-reports after having received the favorable treatment by the bribe-taker «(Lambsdorff / Nell 2007: 4).In the principal-agent-client theory, corruption is thus presented as a prisoner's dilemma, within which the corrupt partner remains uncertain whether the other will betray the corrupt deal (cf. ibid .: 2f.). The fundamental insight that the corrupt deal is subject to secrecy and can therefore not be secured by officially legitimized contracts is taken as a starting point to take action against corruption. With the aim of increasing the uncertainty within corrupt networks, a system of asymmetrical penalties imbalances the cost / benefit expectations of the corrupt actors: unreliable corrupt deals are more expensive because they involve a high risk of being discovered (see Priddat / Schmid 2011; Beck / Nagel 2012). As a result, a sensibly established system of punishment mitigation would have a preventive effect on the one hand, since the expected risk could possibly lead to a decision against corruption. On the other hand, the deterrent effect of the sanctioning would only come into force if a system of asymmetrical punishment resulted in the exposure of corruption. The system of asymmetrical punishment required, above all, comprehensive protection of whistleblowers or a clear expectation (»ex ante«; cf. Lambsdorff / Nell 2007: 1) that whistleblowers would be extensively mitigated, insofar as they enable corruption to be exposed. However, there is no systematically established protection for whistleblowers in most legal systems, even if punitive mitigation is promised: “Because of its potential to shatter corrupt actors' trust in reciprocity and in mutual silence, an asymmetric design of sanctions, coupled with strategically granting leniency, might unleash higher deterrent effects of anti-corruption legislation (...). Yet, in most 62 Verena Rauen countries (...) ex-ante leniency is the exception rather than the rule "(Lambsdorff / Nell 2007: 12). Asymmetrical punishment and remission of punishment conflict with the widespread expectation of the exercise of compensatory justice and the associated authority of criminal justice. For example, the memorandum published in 2015 by US Deputy Attorney Sally Q. Yates is a clear example of the accentuation of the deterrent effect of individualized criminal justice in the fight against international corruption (see Yates 2015; Emmenegger 2016). Yates writes the particularly high punishment of individual responsible persons, especially responsible top managers of companies, on the agenda of the fight against corruption and makes this a prerequisite for a comparison with a company. With this in mind, the memorandum explicitly calls for “Individual Accountability for Corporate Wrongdoing” (Yates 2015) and, as a result, for the company to hand over information on those responsible for individuals who have supported corruption in the company. Yates ’Memorandum does justice to the generally established understanding of compensatory justice by not shifting responsibility for corruption cases to the organization concerned, but rather individualizing it. However, shortly after the memorandum was published, voices were voiced that it would be more difficult to detect corruption through the individualization of punishments (cf. Emmenegger 2016: 1054f.). For example, the sparse flow of information when investigating corruption cases is criticized, which could be attributed to the fact that companies are forced to reach a settlement by accusing and extraditing individual employees, although the prospect of the settlement actually being achieved is the aim of this procedure for the company is often uncertain (cf. ibid .: 1055). In addition, the motivation of potential whistleblowers to uncover corruption is significantly weakened, as there is a high probability of individual punishment. Although the effect of punishing corruption is not in question as such, Yates' approach misses the problem of corruption addressed by Lambsdorff and Nell, which lies in their obscurity. The individualization of punishment does not appear to be very effective with regard to a sustainable fight against corruption, insofar as it is characterized by a complex network of corrupt actors and by secrecy. On the contrary, the practice of secrecy is further motivated by the threat and imposition of high penalties and the associated emphasis on criminal justice. The concept of corruption between individual and system ethics Decisive for a consideration of the above-mentioned polarity between the deterrent effect of criminal justice and the establishment of criminal 4. Corruption and the order of secrecy 63 zfwu, 19/1 (2018) for whistleblowing ethical perspective is an adequate consideration of the tension between individual and system ethics. Both the model of asymmetrical punishment and the accentuation of deterrent criminal justice view corruption individually as the machinations of individual criminals and confidants who are either deterred by punishment or motivated to uncover corruption by mitigating punishment. They follow common definitions of corruption, such as that of Transparency International: Corruption as the abuse of entrusted power for private purposes; or in widespread approaches in economics and the social sciences: corruption as a secret deal between agent and client to the detriment of the principal within the framework of the principal-agent-client model (cf. Klitgaard 1991: 223; Homann 1997: 192), as an »immoral exchange "(Neckel 1995: 9), as" immoral purchasability "(Wieland 2005: 43); or in moral philosophy: as an exchange of inalienable moral norms for economic prices (cf. Sandel 2012: 46). Corruption is particularly dependent on the institutional framework and often starts as a broad network at its systemic weak points (cf. Beck / Nagel 2012; Stenner 2011; Schmid 2011; Priddat 2005), so that an individualized definition of the Corruption does not go far enough to do justice to this phenomenon (cf. Lambsdorff / Nell 2007; Luhmann 1997: 837, 929). Based on the network theory, Wieland proposes an extension of the principal-agent-client theory of corruption presented by Klitgaard (1991) by assuming a double principal structure and locating the principal on the side of the contractor as well as that of the client (cf. . Wieland 2005: 49f.). To combat corruption, he proposes a combination of compliance and integrity measures for the establishment of comprehensive "value management systems" (ibid. 52ff.) Within the governance structures of institutions. Beck / Nagel (2012) and Stenner (2011) also argue that corruption as a network phenomenon takes place primarily in 'bad' institutions with unsuccessful regulatory structures. In particular, research on corruption from an intercultural perspective, such as corruption in the Nigerian warlord system (cf. Schmid 2011) or the corrupt structure of the yakuza in Japan (cf. Stenner 2011), shows, even if they have completely different cultural and political circumstances concern, jointly address the problem that corrupt networks often connect to systemic weaknesses in political frameworks and assume a function that is not adequately exercised or protected by public structures. In the case of Nigerian warlord structures, this applies to the apparent 'securing' of territorial claims to property and power (cf. Schmid 2011) in the face of unstable political conditions, within which property rights are not adequately secured. In the example of the yakuza, the systemic function concerns the maintenance of ostensible security by suppressing petty crime in the areas under its control, such as the red light district, but also the acceleration of administrative processes in civil law matters through bribery (cf. Stenner 2011). 64 Verena Rauen At this point, it is not only possible to expand and redefine the classic individualized definition of corruption in favor of systemic network phenomena, but also to critically question the principal-agent-client theory (cf. Klitgaard 1991; Wieland 2005). to explain corruption: In the classic model, corruption was understood as a secret deal between the agent (employee, civil servant) and the client (customer, potential contractor), which leads to a breach of the existing contract and to an information asymmetry between agent and principal ( see Klitgaard 1991; Homann 1997; Beck / Nagel 2012). Priddat and Schmid (2011) describe this process of the formation of a parallel order resulting from information asymmetry alongside public order as the already mentioned »order of the second kind«, within the framework of which the corrupt relationship between those involved is like that of a parasite to its host Function in this case is taken over by the principal. However, taking into account the above-mentioned conditions of systemic corruption, this perspective has to be shifted. It is obvious to ask to what extent the principal himself is entangled in the network of corruption, as suggested by Wieland, for example, in his extension of the principal-agent-client theory by including the principal in the network of corruption (cf.Wieland 2005) . Priddat (2005) also elaborates on this aspect in the context of his considerations on the order of the second kind on the basis of the negative effects of public-private partnerships and lobbying, in the sense of favoring corrupt relationships through the proximity between private business and politics. From a moral-philosophical point of view, the involvement of the principal in the networks of corruption has also been reflected, in particular by Michael Walzer, who does not just use a secret deal between agent and client as the criterion of corruption, but considers any political framework within which a contract is to be the cause strong encroachment of the market on areas of political power and in particular on social spheres such as education or health care (cf. inter alia Walzer 1983: 50) On the basis of public legitimation, the blocking of economic exchange processes, which for Walzer would mean an encroachment on socially protected social spheres, represents an important aspect of the fight against corruption (cf. ibid .: 156ff.). The above examples of the yakuza and warlord systems are still subject to the order of secrecy in the sense of Walzer, even if they are omnipresent in the respective society. The systemic function that corruption assumes in the respective political systems is not legitimized by public legislation and a democratic decision-making process. However, Michael Sandel's 1998 definition of corruption following Walzer's work is problematic. He sees it as being caused by a 'lack' of morality and thus leads back to the level of individual misconduct. Because corruption is presented by Sandel as the moral misconduct of individuals, in that they schlogik divulge moral norms of an economic dew corruption and the order of secrecy 65 zfwu, 19/1 (2018) and in this move actually exchange inalienable values for economic prices ( see Sandel 2012: 46, 94). It is true that the approach originally put forward by Walzer to contain corruption starts at a systemic point in that he wants to create protection against corruption by regulating and “blocking” exchange processes, which he believes are immoral. However, the continuation of such a corruption concept by Sandel, which consists in the fact that he differentiates between corruption and economic coercion (cf. ibid .: 94ff.), Is clearly a step backwards with regard to a differentiated view of the phenomenon of corruption as a systemic network structure . Sandel differentiates between the compulsion that forces individuals out of an economic emergency to carry out 'corrupt' exchanges, such as the sale of an organ, and corruption, which results in a disregard and alienation of the moral values set by him and Walzer lies (cf. ibid.). The problem of 'coercion' is to be countered by fair framework conditions, i.e. better regulation of exchange processes and a more equitable allocation of goods, while corruption in the sense of a sale of moral values can take place under both fair and unfair economic and political framework conditions (cf. . ibid .: 95). Therefore, for Sandel, corruption is caused by an encroachment of the logic of the market on the sphere of morality and consists in an alienation of moral norms at economic prices. Corruption therefore occurs through an individual or collective 'lack' of morality and not primarily through an inadequate legal or institutional framework, as is the case with the phenomenon of coercion: “We often associate corruption with illicit payoffs to public officials. But (...) corruption also has a broader meaning: we corrupt a good, an activity, or a social practice whenever we treat it according to a lower norm than is appropriate to it "(Sandel 2012: 46). Apart from the fact that the moral norms, social ›spheres‹ and other phenomena that Walzer (1983: 157ff.) And Sandel (2012: 9ff.) Present in their work as worth protecting from the logic of the market are subject to any cataloging, so that It has hardly been shown which substantive criterion, which goes beyond a simple majority decision, should apply to the establishment and public legitimation of a moral standard or a social sphere to be protected, the consideration of morality offered by the communitarian approaches mentioned appears to be reductionist (cf. Walzer and Sandels approach with regard to corruption: Hénaff 2010: 397ff .; Rauen 2016: 112). Because it is not just the 'correct' application and public elaboration of moral norms and the protection of the so-called 'good' that both authors propagate (without convincingly showing how the 'good' should be positively defined in a pluralistic society) that are in question in view of corruption and its characteristics of concealment and secrecy. Rather, the mentioned problems of concealment and double standards as well as the systemic network structure concern the necessity of reflection and criticism of morality and the concept of ethical justice itself. Morality as an instrument of double standards Morality is not 'good' per se. It requires thorough reflection on the history of its origins and conceptual premises, especially with regard to its connection with political power structures and economic principles, which has been proven since antiquity. According to a common conception in social philosophy, a distinction is made below between ethics in the sense of a theoretical level on which moral norms are reflected, and morality in the sense of a socially and culturally traditional catalog of norms and rules (cf. Levinas 2002; Waldenfels 2006). The public representation of morality with regard to the fight against and prevention of corruption is covered in particular by compliance management and the public representation of business ethics. Since the nineties (see Paine 1994), compliance management has been gaining importance in addition to adhering to rules and norms and systems for sanctioning rule violations, as well as reflecting on and developing an integrity management system and the associated corporate culture (see Stessl 2012 ; Wieland 2005). The problem is that even when the concept of integrity is included in compliance management systems, a critical look at the importance of morality for corruption is often lacking. Because central moral concepts, such as justice or responsibility, are often too one-sided, but without this being explicitly reflected, ascribed to principles of debt settlement or the distribution of goods (cf. Heidbrink / Rauen 2016: 191ff.), Which are a major one Be close to economic principles. Such a reductionist representation of morality is one of the causes of the sometimes hypocritical practice of assigning blame and the demand for certain individuals to 'take over' responsibility in public discourse (cf., among others, Lübbe 2001). Such ambivalent scenes like Winterkorn's resignation in the VW diesel scandal with the words: “As CEO, I take responsibility for the irregularities that have come to light in diesel engines and have therefore asked the Supervisory Board to come to an agreement with me to end my role as CEO of the Volkswagen Group hold true.I do this in the interests of the company, although I am not aware of any wrongdoing «(Die Welt: 23.09.2015), as well as the occurrence of extreme discrepancies between the external representation of corporate ethics and internal grievances after corruption cases became known, as in the case of Siemens (cf. Wolf 2009), are not uncommon in public space. The ambivalent role of morality as an instrument of double standards with regard to the problem of corruption, however, does not simply lie in the 'wrong' use or abuse of morality, as was the case with Walzer (1983) or Sandel 5. Corruption and the order of secrecy 67 zfwu, 19/1 (2018) (2009) suggest. Rather, the susceptibility of morality to double standards lies in the overly one-sided emphasis on the economic dimension of morality, supported in particular by an understanding of justice based on principles of equalization and distribution as well as the common practice of assigning individual guilt, as Nietzsche particularly emphasizes in his moral criticism : »Have these previous genealogists of morality even remotely dreamed that, for example, the main moral term 'guilt' took its origin from the very material term 'debt'? Or that the punishment as a retribution developed completely apart from any prerequisite about freedom or lack of freedom of the will? «(Nietzsche 1999 : 297) A moral-critical dimension of the concept of justice can be found especially in Nietzsche's genealogy of morality cited above who sees the concept of justice determined by a systematic confusion between economic debt and moral guilt. Under the overly one-sided stipulation of the repayment and compensation of debt, justice thus becomes a moral instrument of power for Nietzsche: »(...)› every thing has its price; Everything can be paid off "- the oldest and most naive moral canon of justice, the beginning of all" good-naturedness, "all" equity, "all" good will, "all" objectivity "on earth. Justice at this first level is the good will among those who are roughly equal to come to terms with one another, to 'come to an understanding' again through a compromise - and, with regard to the less powerful, to force them to compromise among themselves «(ibid .: 306f. ). However, in the context of an ethical reflection and criticism of morality, a counterweight to Nietzsche's accentuation of the concept of justice based on economic principles, which goes back to Aristotle's Nicomachean ethics (cf. Aristotle 2006). In the fifth book of Nicomachean Ethics, Aristotle adds the so-called equity or epieikeia as a corrective to his remarks on compensatory and distributive justice, which could serve to underpin the idea of the system of asymmetrical punishment and the associated further development of dealing with whistleblowers. Justice: here and beyond economic conditions The relevance of compensatory justice and the concept of retributive justice derived from it is not in question in terms of its importance for the fight against corruption. However, from an ethical perspective, compensatory justice is not the only form of justice that is relevant to combating and preventing corruption. Rather, Aristotle offers a corrective to compensatory justice, which offers an ethical legitimation for the approach of asymmetrical punishment. In the Nicomachean Ethics, Aristotle emphasizes the relevance of so-called equity, epieikeia, as a corrective to compensatory justice (cf. Aristoteles 2006: 188ff., 1137b-1138a). In this context, equity is given ethical relevance as a waiver of the exercise of compensatory justice in cases in which the application of strict law and criminal justice could lead to further injustice (cf. Rauen 2015: 102ff.). . It thus represents a special form of justice, the ethical relevance of which even goes beyond compensatory justice: “For what is cheap, although it is better than a certain kind of just, is just, and it is not better than that the righteous as if it belonged to another species. So what is just and what is cheap are the same, and while both are good, what is cheap is superior ”(Aristoteles 2006: 188, 1137b). The ethical superiority of equity over compensatory justice is determined by Aristotle's ability to reflect in individual cases the appropriateness of the strict application of the laws and the exercise of criminal justice regulated by them and to correct the general law in favor of appropriateness with regard to the individual case ( see ibid.). Aristotle sees the necessity of a correction of the compensatory justice justified by the generality of the law, insofar as this never fully does justice to the peculiarities of the individual case. If the application of the law in the form of the exercise of punitive justice would lead to injustice, Aristotle regards the correction of compensatory justice as ethically justified: “This is the essence of the equitable, to be a correction of the law, insofar as it is one because of its generality Has a gap "(ibid .: 189, 1137b). The concept of equity was taken up in the 20th century in particular by the Neo-Kantian Hermann Cohen, who in the "Ethics of Pure Will" defines equity as a central concept of ethics (cf. Cohen 1904: 587). Cohen emphasizes that the reflection on the renunciation of compensatory justice in order to ensure the continuation of interpersonal interaction beyond an infinite recourse to repayment is the special ability and task of ethics in relation to the law. He also demands, going beyond Aristotle, a comprehensive establishment of the concept of equity in law: »Equity must be attached to strict law, as a homogeneous kind of law; so that they make the problem of the particular, the intrinsically unsolvable, more and more accessible for finding the right law ”(ibid.). In contrast to the amnesty, which can be issued by a decision of a sovereign political ruler and to which the accused has no fundamental right, the establishment of the epieikeia as ethical justice in the sense of Cohen would make it possible to demand mitigation or remission of the sentence, and as it was called for in particular in the concept of asymmetrical punishment to combat corruption, “ex ante” (see quotation from Lambsdorff / Nell 2007). This means that the possibility of mitigating sentences would be promised as a systematic right to individual assessment for whistleblowers. The systematic prospect of mitigation or remission of sentences offers a key to uncovering the order of secrecy and a possibility of founding existing approaches to integrity management based on systems for anonymous whistleblowers or non-retaliation policies for corruption and the order of secrecy 69 zfwu , 19/1 (2018) set advisors. This ethical counterbalance to criminal justice would open a door to networks of corruption by increasing the uncertainty about the risk of exposure in networks of corruption. In addition, such a counterweight served to unleash the further effects of criminal justice, which are not questioned in this article, in the first place. Uncertainty as a criterion for ethical decisions The difficult situation of risk analyzes, which have to reckon with far too little potential for detecting corruption with regard to the prevention of corruption, 2 could improve the uncertainty through the incentive and systematic application of asymmetrical punishment for whistleblowers in the order of secrecy of corruption will be increased significantly. From an ethical point of view, too, the criterion of uncertainty can be identified in terms of its potential for ethical decisions. For example, the French social phenomenologist Emmanuel Levinas (1974) identified uncertainty as a decisive criterion for making ethical decisions and related it to the concept of equity already mentioned above. He takes up this concept within the framework of his theory of responsibility by taking responsibility for him by weighing up the demands of the individual other, who is always characterized by strangeness and unpredictability, and the general normative demands of all other 'others' in the form of society, the associated institution of law and normative order, which he calls the ›third‹ (cf. Levinas 1974, 2002; Bedorf 2003). For Levinas, responsibility lies in the ethical decision between the singular and uncertain claim of the other and the 'third party', i.e. the institutionalized social authority of general norms and laws. Following Cohen and Aristotle, he emphasizes the possibility of correction and suspension of compensatory justice as a special faculty of ethics and describes it with the French term equité: equity (cf. Levinas 1974: 210). Conclusion The unpredictability and uncertainty of the 'other' presented by Levinas in the form of a difference principle is not only relevant with regard to an ethical legitimation of the asymmetrical punishment. Rather, a systematic increase in the uncertainty in the secret order of corruption sets the lever for reflection on the predictability of the corrupt interaction partner 7. 8. 2 The extent of corruption, e.g. in Germany, is difficult to estimate; the number of unreported cases is considered to be very high (cf. Handelsblatt dated November 11, 2004, »The corruptible republic«). 70 Verena Rauen both on a cost-benefit calculation on the level of rational expectation and on trustworthiness on the level of the emotional dimension of the interpersonal relationship. It uses the unpredictability of future consequences and risks of a corrupt deal as a factor in deciding against corruption. The systemic level of the secret network could thus be eroded through the asymmetrical punishment for individual cases of whistleblowers. However, a rethink with regard to the constitution of justice required an ethical reflection and questioning of the axioms of morality propagated in public space, the practice of assigning blame and moral condemnation of individuals and the associated public call for compensatory justice, which is the order of corruption that is characteristic of Cement secrecy and not undermine it. This implies a reflective handling of the fact that corruption is a complex network phenomenon, which, especially in severe cases, international corruption networks do not adequately address the demand for equalizing justice for individual responsible persons, but only through a systemically oriented approach of eroding secrecy, and in general for further purposes legal punishment can be exposed. The establishment of a concept of ethical justice for individual decisions on the mitigation of punishment for whistleblowers as well as the promotion of corporate and organizational cultures that rely on internal integrity management instead of public representation and a balanced system of error reflection and correction across all hierarchical levels instead of the massive threat of sanctions work out, opened up an ethically appropriate perspective for the fight against and prevention of corruption. However, such a culture of balanced ethical reflection can only be implemented in the face of existing corruption that is to be prevented, provided that it is not used at the same time for purposes of public representation, the mostly associated idea of marketing and / and for the purpose of concealment let. Bibliography Alloa, E. (2017): Transparency as censorship, Süddeutsche Zeitung, June 27, 2017. Aristotle (2006): Nicomachean Ethics, Hamburg: Rowohlt. Baecker, D. (2000): Offices, topics and contacts: On the form of politics in the network of society, in: Priddat, B. (Ed.): The moved state, Marburg: Metropolis. Beck, L. / Nagel, V. (2012): Corruption from an economic perspective, in: Graeff, P./Grieger, J. (Ed.): What is corruption? Baden-Baden: Nomos. Bedorf, T. (2003): Dimensions of the Third. Social-philosophical models between the ethical and the political, Munich: Wilhelm Fink. Boissevain, J. (1974): Friends of Friends: Networks, Manipulators, and Coalitions, New York: Blackwell Publishers. Bluhm, H./Fischer, K. (Ed.) (2002): Visibility and Invisibility of Power. Theories of Political Corruption, Baden-Baden: Nomos. Cohen, H. (1904): Ethics of pure will, Berlin: Bruno Cassirer. Corruption and the order of secrecy 71 zfwu, 19/1 (2018) Doe, J. (2016): The Manifesto of John Doe, Süddeutsche Zeitung of May 6, 2016. Link: http://www.sueddeutsche.de/wirtschaft /panama-papers-das-manifest-von-john-doe-1,298 2442 (last accessed on June 30, 2017). 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(2011): The perverted gift. Virtue, hypocrisy and nihilism. On an anthropology of corruption, in: Lettre international 93, 54–56. Homann, K. (1997): Business ethics and corruption, in: Journal for business research (zfbf) 49, 187–209. IDW auditing standard (2011): Principles of proper auditing of compliance management systems (IDW PS 980), Düsseldorf: IDW Verlag. Klitgaard, R. (1991): Gifts and Bribes, in: Zeckhauser, R. J. (Ed.): Strategy and Choice, Cambridge / Mass: MIT Press. Lambsdorff, J. Graf / Teksoz, SU (2002): Corrupt Relational Contracting, contributions to the discussion from the Economics Seminar of the University of Göttingen, Article No. 113. Lambsdorff, J. Graf / Nell, M. (2007): Fighting Corruption with Asymmetric Penalties and Leniency, Göttingen: Center for European, Governance and Economic Development Research Discussion Paper 59, University of Goettingen, Department of Economics. Levinas, E. (2011 ): Beyond being or other than being happens, Freiburg: Karl Alber. 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This paper discusses the protection of whistleblowers who break the ›“ order of secrecy ‹” that is characteristic for corruption. The central thesis is that in the fight against corruption, an often theatrical, public representation of morality and a one-sided but common understanding of justice as a balancing principle can strengthen this order of secrecy and may thus increase the difficulty of discovering cases of corruption . Instead, referring to ›“ equity ‹” as a different, non-balancing concept of ethical justice, the paper opens a new perspective on the ethical legitimization of the protection of whistleblowers.
This article deals with the secrecy structure characteristic of corruption and the protection of whistleblowers. The central thesis is that in the fight against corruption, often through the pretense of morality and the recourse to an overly one-sided understanding of justice as a balancing principle in public space, the so-called. ›“ Order of secrecy ‹” is reinforced and thus the detection of corruption is just made more difficult. With reference to the concept of ›“ equity ‹” as a concept of ethical justice that is not aimed at compensation, a new perspective for the ethical legitimation of the protection of whistleblowers is shown, which contributes to the exposure of corruption.
Alloa, E. (2017): Transparency as censorship, Süddeutsche Zeitung, June 27, 2017.
Aristotle (2006): Nicomachean Ethics, Hamburg: Rowohlt.
Baecker, D. (2000): Offices, topics and contacts: On the form of politics in the network of society, in: Priddat, B. (Ed.): The moved state, Marburg: Metropolis.
Beck, L. / Nagel, V. (2012): Corruption from an economic perspective, in: Graeff, P./Grieger, J. (Ed.): What is corruption? Baden-Baden: Nomos. https://doi.org/10.5771/9783845238678-29
Bedorf, T. (2003): Dimensions of the Third. Social-philosophical models between the ethical and the political, Munich: Wilhelm Fink.
Boissevain, J. (1974): Friends of Friends: Networks, Manipulators, and Coalitions, New York: Blackwell Publishers.
Bluhm, H./Fischer, K. (Ed.) (2002): Visibility and Invisibility of Power. Theories of Political Corruption, Baden-Baden: Nomos.
Cohen, H. (1904): Ethics of pure will, Berlin: Bruno Cassirer.
Doe, J. (2016): The Manifesto of John Doe, Süddeutsche Zeitung of May 6, 2016. Link: http://www.sueddeutsche.de/wirtschaft/panama-papers-das-manifest-von-john-doe- 1.2982442 (last accessed on June 30, 2017). https://doi.org/10.2134/csa2016-61-12-12
Emmenegger, S. (2016): The Yates Memorandum: Tightening in American Corporate Criminal Law, AJP 2016, 1045-1055.
Engels, J. I. (2014): The history of corruption: From the early modern era to the 20th century, Berlin: S. Fischer.
Fischer-Lescano, A. (2015): International legal regulation of whistleblowing. Need for adjustment in German law, brief legal opinion on behalf of the DGB, Center for European Legal Policy (ZERP), University of Bremen.
Foucault, M. (1977): Monitoring and punishing, Frankfurt: Suhrkamp.
Heidbrink, L./Rauen, V. (2016): Why economic philosophy? A controversial discussion, in: Enkelmann, W. D./Priddat, B. P. (Ed.): What is? Economic and Philosophical Explorations, Vol. 3, Marburg: Metropolis, 183–207.
Heimann, R. (2015): The question of justice: Plato's Politeia I and the justice theories of Aristotle, Hobbes and Nietzsche, Berlin: Duncker & Humblot. https://doi.org/10.3790/978-3-428-54339-7
Hénaff, M. (2010): The Price of Truth. Gift, Money and Philosophy, Stanford: Stanford University Press.
Hénaff, M. (2011): The perverted gift. Virtue, hypocrisy and nihilism. On an anthropology of corruption, in: Lettre international 93, 54–56.
Homann, K. (1997): Business ethics and corruption, in: Journal for business research (zfbf) 49, 187–209.
IDW auditing standard (2011): Principles of proper auditing of compliance management systems (IDW PS 980), Düsseldorf: IDW Verlag.
Klitgaard, R. (1991): Gifts and Bribes, in: Zeckhauser, R. J. (Ed.): Strategy and Choice, Cam-bridge / Mass: MIT Press.
Lambsdorff, J. Graf / Teksoz, S. U. (2002): Corrupt Relational Contracting, contributions to the discussion from the Economics Seminar of the University of Göttingen, Article No. 113.
Lambsdorff, J. Graf / Nell, M. (2007): Fighting Corruption with Asymmetric Penalties and Leniency, Göt-tingen: Center for European, Governance and Economic Development Research Discussion Paper 59, University of Goettingen, Department of Economics. https://doi.org/10.1017/CBO9780511492617.002
Levinas, E. (2011 ): Beyond being or other than being happens, Freiburg: Karl Alber.
Levinas, E. (2002 ): Totality and Infinity. Experiment on exteriority, Freiburg: Karl Al-ber.
Lübbe, H. (2001): I apologize - The new political penance ritual, Berlin: Siedler.
Luhmann, N. (1997): The Society of Society, Frankfurt a. M .: Suhrkamp.
Neckel, S. (1995): The immoral exchange. A sociology of buyability, in: Enzensberger, H. M. (Ed.): Kursbuch 120, 9-16, Berlin: Rowohlt.
Nietzsche, F. (1999 ): Zur Genealogie der Moral, in: Colli, G. von / Montinari, M. (Ed.): Jenseits von Gut und Böse, Zur Genealogie der Moral, critical study edition, Vol. 5 , Munich: de Gruyter.
Paine, L. S. (1994): Managing for Organizational Integrity, in: Harvard Business Review, Vol .: 72 / No. 2, 106-117.
Priddat, B. P. (2005): Black holes of responsibility: Corruption - the negative variant of public-private partnership, in: Jansen, S. A./Priddat, B. P. (Ed.): Korruption. Unenlightened Capitalism - Multidisciplinary Perspectives on Functions and Consequences of Corruption, Wiesbaden: VS Verlag für Sozialwissenschaften, 85-103.
Priddat, B. P./Schmid, M. (Hrsg.), (2011): Corruption as an order of the second kind, Wiesbaden: VS Verlag für Sozialwissenschaften. https://doi.org/10.1007/978-3-531-93011-4
Rauen, V. (2015): The temporality of forgiveness. On the ethics of abstention, Munich: Wilhelm Fink.
Rauen, V. (2016): Corruption: Uncovering the Price of Normative Morality and the Value of Ethics, in: Wolf, S./Graeff, P. (Ed.): Special Issue on Ethical Implications of Corruption, German Law Journal, Vol. 17 / No. 1, 101-118.
Ricœur, P. (2004 ): Memory, History, Forgetting, Munich: Wilhelm Fink.
Rose-Ackerman, S. (1999): Corruption and Government. Causes, Consequences and Reform, Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139175098.008
Sandel, M. (2013 ): Justice. How we do the right thing, Berlin: Ullstein.
Sandel, M. (2012): What Money Can’t Buy: The Moral Limits of Markets, New York: Ingram International Inc.
Schmid, M. (2011): Mafia, Warlords, Terror, Corruption: Systems of rational property security, in: Priddat, BP / Schmid, M. (Ed.): Corruption as an order of the second kind, Wiesbaden: VS Verlag für Sozialwissenschaften, 99-139. https://doi.org/10.1007/978-3-531-93011-4_6
Simmel, G. (1989): Philosophy of Money, Frankfurt a. M .: Suhrkamp.
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