Conference Agenda

The concept of 'capture' is gaining increasing relevance in the contemporary public debate. The capture of public power by private actors takes different forms depending on the specific actors concerned: state capture, regulatory capture and, more recently, business capture.

The term 'capture' is used to describe those forms of influence exercised by private actors over those who exercise public power, which may take the form of influencing the content of a law or public policy, the choice of a particular regulatory activity, or even the adoption of an administrative decision. National legal systems, also influenced by international bodies, have introduced laws to combat and prevent corruption, to make lobbying more transparent and to regulate interactions between the market and public power. However, it is evident that these measures are insufficient to deal with and identify all the different cases of capture. While there are some similarities, capture is a very different phenomenon from corruption. The distinction between the two can be found in the systematic nature of the relationship between private and public actors. This distinction complicates the efforts of nations to address the negative effects of capture.

In sectors where public-private relations are crucial, but also in those where the authoritative and negotiating power of those exercising public functions is particularly exposed to pressure from private interests (as in the case of public procurement), this dynamic is particularly important. The consequences of these practices are to undermine impartiality in the exercise of public functions, good administration and integrity.

The concept of 'state capture' presents a considerable challenge to the legal scholar who seeks to engage with this issue. If rules are meant to define the context within which politics and interests are legitimised to engage in open and fair competition, this perspective does not fit this pattern. Indeed, it explicitly theorises 'legal political corruption', i.e. a phenomenological dimension that is both 'legal' (i.e. within the aforementioned framework) and, by definition, 'corrupt' (i.e. delegitimised). It is therefore proposed to use the notion of 'state capture' as a parameter, as a sieve, through which to examine the ways in which private (economic and other) powers interact with the definition of public interest objectives, to see if this notion can provide some useful clues, not only to assess where the interaction turns from physiological to pathological (hence the related notion of 'legal-political corruption'), but also to examine what counter-measures might be adopted to 'limit the damage'.

The aim of this proposal is to analyse the relationship between public sector integrity and state capture in order to provide a new perspective that goes beyond the current dichotomous paradigm, which is characterised by a constant 'chasing' of rules to cover new areas (to make illegal what is 'corrupt') and a 'retreating' of rules, which is an attempt to make 'legal' what was corrupt. The central question that emerges from this analysis is whether this approach is indeed helpful for a deeper interpretation of the phenomenon and for adopting new regulatory and normative approaches.