Symposium on the Impact of Law on Public Integrity Public Integrity

Public Integrity

This volume contains a symposium of eight articles, variously related to the legal approach on public integrity. It tries to introduce readers to a scientific and practical perspective which is seldom taken. There is, in fact, a sort of paradox: even though law is a necessary benchmark for administrative action, when public ethics is directly concerned the attention for the legal rules diminishes. Either consciously or not, the general idea seems to be that integrity is such a basic and fundamental principle that it is enough in itself and it does not need to assume a legally binding form to establish itself. But this is not true, or at least it is not always true. In the contemporary globalized and complicated world, the institutions must dialogue with each other and with the private parties, whose involvement in the pursue of the general interest is progressively growing. All these subjects need a set of clear rules, on which to base their action. Therefore, the relationship between the criteria of good administration and the legal rules more and more strongly deserves to be carefully analyzed. Such relationship works in many ways. First, in the national systems, the principles are almost always codified at the higher legislative position (often, the Constitutional one) and they influence how the specific rules are interpreted and implemented; meanwhile, in case of lack of specific rules, the principles (which are rules as well, of course) directly and immediately can guide concrete actions. Second, one may ask whether just following the legal rules in force is enough to obtain good results, in terms of administrative ethics: sometimes, in fact, the rules do not “cover” all the open issues and best practices produce, also beyond the borders of lawfulness, new legal tools for public ethics. In this scenario, the virtual symposium aims at giving some possible answers and suggestions to raise further reflection, offering a multidisciplinary overview of the strict but slippery link between legal and ethical rules in administrative action. It consists of two groups of papers: the first group regards general concepts; the second group examines some corollaries of the principle of good administration concretely implemented in specific sectors.

The opening contribution, by J. Patrick Dobel, focuses on the importance of the legal rules about conflict of interest; the Author shortly but effectively describes the key-concepts that should be laid down in a general statute against maladministration. After that, Gjalt de Graaf and Zeger van der Wal show how the same concepts and values are variously “felt” and used in different scientific fields; it is interesting to note that the variety of approaches seems to be a typical element especially of legal studies. If cultural and methodic barriers are an obstacle to wide-spread knowledge, blinders should be removed also when we compare different backgrounds and traditions. In the third article, so, Lijing Yang and Zeger van der Wal guide us in a journey into the Chinese and the Dutch systems, to understand how deep the gap between the perception, especially by practitioners, of public values is in reality: the result is partially surprising, as the acceptance of a strongly positive idea of lawfulness (like it is in the Netherlands) does not actually produce all the consequences we could expect.

The other contributions regard more specific issues. Lauren Bock Mullins considers the role of international law in enriching the tools for gender equality: the Author examines the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its possible influence in the US legal system; she shows how the proper interaction between national and supra-national legal levels could positively affect the fairness of public action. Daniel Bromberg, Roger E. Hartley and Deborah Mohammed-Spigner describe the U.S. legal landscape of contrast to corruption in the field of public procurement: they argue that there is a strange – and not always virtuous – link between the emersion of phenomena of corruption and the entering into force of new statutes, which often are not an efficient weapon to contrast maladministration; moreover, there is a fine line between private and public sector and such borderline may become a dangerous space for non-ethical behaviors. A similar issue is the object of the article by Agustí Cerrillo-i-Martínez, who explores the so called “revolving doors phenomenon” through the lens of regulation: notwithstanding a critical opinion may be expressed on the efficacy of the rules in force, they play an important role and they should probably be strengthened in the next future. Another field where the legal landscape is normally weak is whistleblowing: this is the object of the paper by Milton Heumann, Al Friedes, Lance Cassak, Wendy Wright, and Ela Joshi, who prove that, even though the legal rules in force represent a fundamental piece of the puzzle, they are not self-sufficient to create a complete regime, needing to be implemented in light of the principles of fair and good behavior. Finally, Cristopher L. Atkinson brings the issue of the influence of legal rules on practical attitudes to the local level, by analyzing the municipal government of New York City: which offers another view and indirectly evokes the relevant topic of the legal value of codes of ethics.

In conclusion, the result of the symposium is a a multi-coloured mosaic. Principles and rules – law in general – give to public integrity a strong contribution, whose fundamental importance cannot be neglected. This clearly arises in several fields and at different institutional levels (local, national, supra-national). Nonetheless, the primary role of legal rules in public integrity is not commonly perceived yet and, even among the legal scholars, the interest and curiosity for this subject are not widely shared. One may hope that the number of people working on this theme increase. This symposium teaches that the Authors currently engaged in research about the relationship between administrative ethics and law are not always legal scholars; consequently, methods different from interpretation are used to analyze legal rules, sometimes with unexpected results. The second lesson we can learn has to do with the importance of cultural background, that perhaps also influences the researchers’ attitude: as it is quite evident in the symposium, some of them are inclined to adopt broad systemic and normative perspectives, while others tend to prefer (at least partially) sectorial and empiric research. That is not necessarily a problem, because the assumption of different points of view is an element of richness in the debate and it supports a desirable methodic osmosis, in order to fruitfully share the scientific findings. In light of all the articles here collected, one is hopefully able to grasp the relevance of law for public integrity and to consider furtherly reasoning in the next future with greater awareness.

Anna Simonati, J.D.
University of Trento, Italy