Positional Duties

        Some duties we have are duties that arise because of some role we occupy.¹ We may have duties, moral duties (not just job responsibilities) as parents, as neighbors, as priests, and as about any kind of professional. Let us call these responsibilities "positional duties."² Any of us should save a drowning child if we can easily do so. But an on-duty lifeguard has a positional duty to do so, which bystanders do not have. But "positional duties" aren't restricted to job responsibilities, since children, perhaps, have positional duties to obey their parents, even though being a child is not a job. Yet not all job responsibilities are positional duties either. Positional duties are, after all, moral duties, and not everything that is a "responsibility" of a job is something we have a prima facie moral duty to do, especially if one never freely agreed to take on those responsibilities.

What is Bribery?

        The word "bribery" is used to denote many things. It is worthwhile to restrict it's use in order to delineate a certain class of actions instead of encompassing all cases of inducements to action. If a bank offers me a free toaster if I open a personal checking account there, it has not bribed me. What then is a bribe? Here is one account.

        To accept a bribe is to agree to violate a positional duty one has in exchange for something of value.³ Notice that this defines accepting a bribe. Bribery happens when a bribe is accepted. One can offer a bribe, of course, that is not accepted. Then the person hasn't been bribed, but there has been attempted bribery.

        If this account is right, then bribery only arises in regard to people who have positional duties, and only in regard to those roles. Thus a person cannot be bribed to do something that does not violate any of her duties.

        There is an apparent counterexample to this account. A concentration camp guard could be bribed to ignore escape plans by inmates.⁴ But even though the overall right thing to do in this case would be to ignore the escape plans, still the guard has a positional duty, a prima facie moral duty, not to hold the job as a guard and yet look the other way. If some busybody just liked to blow a whistle whenever she saw someone escape (not as a matter of civil responsibility, but just out of enjoyment of seeing the guards going to get the escapee), and this busybody were offered some money to lay off the whistle, this wouldn't be a bribe. Busybodies as such don't have positional duties.

        Nor can a person, on this account, be bribed to do something that goes against her ordinary duties (i.e., the responsibilities she has as a person independently of any role she occupies). For example if someone pays someone to kill someone else, that does not constitute bribing that person (unless the person were the bodyguard, for instance, of the intended victim).

        But the account I have given of bribery also requires that the violation of the positional duty be done in exchange for something of value. If the receptionist is not allowed to give you access to someone else's records but she does simply because you ask, or even because you say "please," that is not bribery. If, on the other hand, you offer her something in exchange, then it is.

How Bribery Differs from Commerce

        Someone may offer me something of value in exchange for my doing something. Perhaps they offer me twenty dollars if I will drive them to the airport or cut their lawn. Such offers are not bribes. This is simply commerce. They are not bribes because I am not being asked to violate any (positional) duties.

        Of course there are various sorts of inducements. Suppose I am offered a discount, or a free toaster, to buy a car from someone or open an account at a certain bank. These are not (unless there is more to the story) bribes. (If I am buying the car, or opening the account, for someone else or for some business and I pocket the discount or the toaster, that is more to the story.)

Why it is (generally) Wrong to Act from a bribe

        Is it wrong to act from a bribe, i.e., to act as one has been bribed to act? Yes. This follows directly from the analysis. After all, if to be bribed is to agree to violate a positional duty, then to act from a bribe is to violate a positional duty, which is, prima facie, wrong. Of course, what is prima facie wrong may not be wrong on balance. When Oskar Schindler bribed Nazi officials to allow him to take Jews out of the concentration camps (thus saving their lives), the Nazi officials ultimately did the right thing in doing as they were bribed to do, and letting the inmates go. Still, however, their actions were prima facie wrong. And in addition, they were wrong to take money for their actions.

Why it is (generally) Wrong to Offer a Bribe

        But why is it wrong to offer to bribe someone? What is wrong with trying? After all, it is the other person who is asked to violate the positional duties, not the one offering the bribe. Is it wrong because it is corrupting someone? Probably not, since often people who are offered bribes are already corrupt, and it doesn't seem to cease to be wrong when the bribee (as I will call the person bribed) is already corrupt.

        No, instead it seems to be wrong to offer a bribe because it is an attempt to induce someone to do wrong. In general it seems wrong to induce or encourage someone to do something wrong. Even if one didn't offer much in the way of inducement, and even if the wrongdoing involved no positional duties, it seems morally wrong to encourage someone to do something morally wrong. (Utilitarians could explain this by pointing out that the consequences of successfully encouraging someone to do something wrong include the consequences of the wrongdoing, and so include the factors that (for a consequentialist) make the action wrong to begin with. Kantians could explain the wrongdoing of encouraging wrongdoing by suggesting that asking someone else to do something morally wrong is to use that person as a means with no regard for his or her moral character.)

Why it is (generally) Wrong Not to Act as one has been Bribed to Act

        Given that it is wrong to act as one has been bribed to act, it would seem that one should not act as one has been bribed to act. But things are not that simple, for this too is morally wrong. It is wrong because it is the violation of a promise (implicit or explicit). To the extent that a person has been bribed (and not simply engulfed in a conflict of interest) that person has agreed to do something, something which violates her positional duties. But such an agreement is essentially a promise, and it is wrong, prima facie, to break promises.

Why it is (generally) Wrong to Accept a Bribe

        Thus, once one accepts a bribe, it is wrong to act according to the bribe, and wrong not to. Thus by accepting a bribe one puts oneself in a position such that no matter what one does, one will be doing wrong. (Accepting a bribe is not the only kind of action which generates this situation, which Aquinas called perplexity secundum quid.⁵ Promising to kill someone (even for free) would also result in such a "damned if you do; damned if you don't" situation.) So, it wrong to accept a bribe, since that is agreeing to do something one should not do. (Again, there could be exceptions, since to violate a positional duty is not always morally wrong on balance.)

        So here we have an argument for why bribery is wrong. People often assume it is wrong, but philosophers want reflectively justified beliefs, not just common beliefs. Bribery is (in general) wrong because it is encouraging someone to do something she or he should not do.

Accepting Bribes and Profiting

        One aspect of accepting bribes which seems to add to its nasty character is that by accepting a bribe one profits personally from something one should not profit from. Nothing is wrong with profit, as such, but someone uses his or her role to gain profit from himself or herself over that which is generally accepted, that is wrong.

Is a Tip a Bribe?

        Clearly ordinary tips are not bribes. If the tip is provided for a thanks for service after the service has been performed (with no hinting at the potential tip earlier), it is not a bribe. If the service asked for is one that doesn't violate position duties, as bringing food to the table normally doesn't, then it is not a bribe. But if you suggest you'll leave a big tip if the waitperson overlooks the fact that an underage companion at your table is drinking the beer you ordered (where the waitperson is not supposed to overlook such things), then this amounts to a bribe.

Soliciting Bribes

        To accept a bribe is to agree to violate a positional duty in exchange for something of value. But such an agreement does not have to be initiated by the briber. If someone asks for some money or other compensation in an offer to violate a positional duty, that person is soliciting a bribe. Of course in real life such solicitations would probably be less overt. Instead of saying "hey, I'll violate my duty if you pay me enough," such a solicitor would perhaps simply say "Well, I really shouldn't do that," and make it clear by the tone of the remark and nonverbal clues that he or she would do it if you offered some valuable "encouragement." That would be subtly asking to be bribed.

        Bribery is thus not to be distinguished from other things, such as extortion, by who initiates the transaction.

Extortion

        What is extortion, then? I think extortion is demanding compensation for something one ought to do even without that compensation.

        Joe shouldn't burn down your house. If Joe says "pay me ten thousand dollars and I'll refrain from burning down your house," that's extortion on this definition.

        Demanding ransom before returning a kidnap victim is another example of extortion. You should let the person go even without getting paid that ransom.

        So is blackmail extortion? On this definition, the answer is "it depends." Blackmail is getting someone to pay you for keeping quiet about something you know (or not releasing pictures you possess etc.). On the accounts of bribery and extortion I have given here, what blackmail counts as depends on the duties involved.

        Suppose one has a positional duty to provide some information (to the authorities say) and yet offers not to send on that information if you give him some money. To be specific, suppose that an auditor has uncovered two sets of books and this auditor is obligated to report this. If the auditor says "give me ten thousand and I'll keep quiet about this," that's blackmail, but it is also solicitation of a bribe.

        Suppose one has a duty not to provide the information. For example, suppose someone working for a company learns some trade secrets of the company and goes to the boss and offers to keep these secrets secret as long as he gets promoted; otherwise he'll tell the world (or at least the competition). Again, this is blackmail. But here it is not bribery, but extortion. The employee should (let us suppose) keep quiet about such things learned on the job. (Imagine that the employee signed some nondisclosure agreement.)

        But a third kind of case is when the person has no obligations to disclose the information and no obligations not to. Then in asking for payment to keep quiet, the person is neither soliciting a bribe nor extorting, on the definitions offered. Sally finds out (by happening to see in a window, quite by accident) that Billy dresses up in women's clothes. Billy, let us suppose, does not want people to know that he does this. Sally offers to keep quiet about it if Billy will give her five hundred dollars; otherwise she'll tell people. Let's suppose Sally has no positional duties to tell (she was not, e.g., hired by Billy's wife to find this out). I imagine she doesn't have some duty to keep quiet about this (although it would be nice of her to, and rather nasty to cause Billy this grief). If that's right (and I'm not confident of this), then Sally's blackmail here is not extortion.

        Of course if you think it would wrong of Sally to tell people what she knows about Billy, then you should think that she asking for payment from Billy for not telling is extortion.

The Morality of Bribery and Extortion

        Is it always wrong to bribe someone? I think not. If the only way to save an innocent life is to bribe the concentration camp guard, then bribing is the (on balance) morally right thing to do.

        Is it always wrong to accept a bribe? Yeah, probably. After all, in accepting a bribe one is agreeing to do something one has a positional duty not to do. Maybe on balance it is morally permissible to do it (as it would be permissible on balance, I suppose, for a concentration camp guard to let the innocent prisoner go free). It seems morally wrong do this for money though, doesn't it?

        It is always wrong to give into extortion? No. Surely if someone said to me "I'll kill your children unless you give me ten dollars," no one would fault me for giving in to the extortion and handing over the money.

        Is it always wrong to extort? Yes. Why? On Kantian principles (see "Kantian Ethical Theory") it is wrong to treat other persons as means only. Extorting from others is using them as means and not as ends. Therefore it is wrong.

Conflict of Interest

        "Conflict of interest" is a broader category than bribery. Bribery involves, as we shall see, conflict of interest, but there are also lots of conflicts of interest which are not matters of bribery at all.

Pre-conditions for a Conflict of Interest

        In order for a person to have a conflicts of interest, certain conditions have to apply. First of all, that person needs to be in a role which has responsibilities. Employees may have conflicts of interest. Parents may have conflicts of interest. But people outside of such roles cannot. You may not be able to decide whether you should go to the Chinese restaurant or the Mexican restaurant, but there is no conflict of interest here, even though you have interests tugging you in different directions. You have an interest is going out to a movie and an interest in staying home to read a book. Again, you have conflicting interests, but no conflict of interest.

        Furthermore this role must be a position of trust in which the person is entrusted with the power or authority to make decision on a certain basis (i.e., not simply on whim). This is true of judges. This is true of teachers. This is true of lawyers. This is true of most professionals.

        Let us call such decisions, which one is entrusted to make on a certain basis, criterial decisions.

        Having the power to make criterial decisions is not to have a conflict of interest. It is simply a precondition of having a conflict of interest. Meeting these conditions does not mean one has a conflict of interest, only that without these conditions being met one cannot have a conflict of interest.

What a Conflict of Interest Is

        So what is a conflict of interest? One has a conflict of interest when one has interests or is in circumstances which would tempt an ordinary person to make criterial decisions on an inappropriate basis.

        This needs explanation. Remember that criterial decisions, by definition, should be made on a certain basis (e.g. what is best for the company, what will improve the patient's health). If so, it is wrong to make these decisions on some other basis. But conflicts of interest exist even when no criterial decisions have been made on an inappropriate basis. They arise whenever there are tempting circumstances. So, suppose a teacher is having a secret affair with one of his students. The teacher sees that according to the test grades (and whatever other work has been required for the course) this student should receive a C. The teacher has a criterial decision to make. The decision of what grade to enter for the student should be based on the criteria (let us suppose) of how well the student has done on the class tests etc. Now even if the teacher gives the student a C, there is a conflict of interest, because the circumstances are such that a person would be tempted to give the student a higher grade.

        Thus conflicts of interest might exist even if never acted on. A legislator has a conflict of interest on legislation having to do with regulation of tobacco, say, if she owns stock in tobacco companies. She is entrusted to vote in ways that benefit her constituents, let us suppose. And maybe she does. But since she has a financial interest in the fortunes of tobacco companies, that could tempt her to make decisions on another basis. The issue, when the question is whether there is a conflict of interest, is not whether she does act contrary to how she should, or even whether she is, as a matter of fact, tempted to. The issue is whether these circumstances would tempt an ordinary person (even if they wouldn't tempt a saint).

Whether Having a Conflict of Interest is Wrong

        Given this account of conflicts of interest, it is clear that such conflicts are common. For example, a teacher wants his students to like him. Students who fail are less likely to like him. So there is a temptation not to fail students whom he "should" fail.

        Surely, given this definition of "conflict of interest," simply having a conflict of interest is not wrong.

Acting From a Conflict of Interest

        While having a conflict of interest is not necessarily wrong, acting from one generally is. Acting from a conflict of interest is giving into that temptation to make the criterial decision on some basis other than the appropriate one. Suppose Mike is employed by the military to check security measures that civilian military contractors have at their plants. Mike uncovers some minor infractions and is considering whether to report them. If Mike is hoping for a job with this contractor when he retires from the military, he has a conflict of interest. If moreover he decides not to report the infractions because he thinks so doing would harm his future job prospects, he is acting from a conflict of interest. This is morally wrong. Why? Because Mike is making a criterial decision on some basis other than the appropriate basis.

Judgment and Trust

        Remember that conflicts of interest arise because people are in positions of trust. The moral issue, it seems to me, is what undermines that trust. Some conflicts of interest undermine trust. A doctor is in a fiduciary relationship with her patients. They should be able to trust the doctor. If the doctor gets a "kickback" from all referrals to some other doctors, or will be dropped from the approved list of doctors of some medical plan if she makes more than a certain number of referrals, then she has a conflict of interest. (Notice these two cases happen to pull in opposite directions: In one case she may be tempted to make unnecessary referrals; in the other she may be tempted not to make referrals when it would be medically advisable to do so.) Such conflicts perhaps undermine the basis of trust we put in a doctor. Ask yourself this: If you found out about such conflicts after having treatment from the doctor (where it involved a judgment concerning whether to refer you to a specialist) would you feel your trust was betrayed? In these cases, if I didn't at the time know of these conflicts, I would feel the trust was undermined.

        But in the case of the teacher who wants his students to pass, I would not feel the trust was undermined. Not all conflicts of interest undermine trust.

Disclosing Conflicts of Interest

        One major factor in when conflicts of interest undermine trust is whether they are disclosed. If I know that there is a conflict of interest and the person with the conflict is forthcoming about this, then I often don't feel that trust is weakened.

        If my personnel director advises me that the candidate she thinks is best for the job is her brother-in-law, then I know I should perhaps review the recommendation myself to make sure that this is not simple nepotism. If the personal director informs me of the situation (the conflict of interest) then we can still work together without my being suspicious.

        So disclosing conflicts of interest that one has can serve to maintain trust. I may still trust if there are undisclosed conflicts of interest, but if they are serious enough, maybe I shouldn't be so trusting. So undisclosed conflicts of interest are often wrong.

        But even undisclosed conflicts of interest may be minor. Suppose a student of a teacher is the best friend of the teacher's nephew. Is this a conflict of interest? If so, it is certainly minor. Perhaps disclosing all such apparent conflicts is unnecessary and unwieldy.