Fundamentals of Criminal Law by Adam J. McKee

Bribery, in its simplest form, is the act of giving or receiving something of value in exchange for some kind of influence or action in return, that the recipient would otherwise not offer. Imagine a business owner offering money to a government official to secure a contract, or an athlete paying a referee to fix a game. These scenarios illustrate bribery, a practice that undermines fairness, corrupts the decision-making process, and damages public trust.

The Harm Bribery Causes

The legislature enacts laws against bribery to prevent a multitude of harms. Firstly, bribery undermines meritocracy and fairness. It allows people with resources to buy influence or favorable outcomes, thereby disadvantaging those who play by the rules. In the public sector, it can lead to the misallocation of resources, as decisions are made based on personal gain rather than public interest. This can result in inferior public services, as contracts are awarded based on bribes rather than competency.

Furthermore, bribery erodes trust in institutions. When public officials are bribable, it diminishes citizen trust in the government, leading to apathy or distrust in the democratic process. In the business world, bribery can distort market dynamics, creating an uneven playing field where the success of a company depends on its willingness to engage in corrupt practices rather than the quality of its products or services.

Bribery also has broader economic implications. It can deter foreign investment, as companies may be unwilling to enter markets where bribes are a prerequisite for doing business. It can lead to increased costs, lower quality of goods and services, and hinder economic development.

Overall, laws against bribery seek to uphold integrity, fairness, and trust, both in public institutions and in the market.

Classification of Bribery

Bribery is typically classified as a felony in most legal codes. This classification reflects the serious nature of the offense and its potential to cause significant harm to individuals, institutions, and society. Penalties for bribery can be severe, often including imprisonment, fines, and in some cases, forfeiture of assets.

Bribery in Broader Criminal Categories

Bribery fits into several broader categories of criminal offenses. It is a crime against the administration of justice, as it seeks to corrupt decision-making processes. It’s also a crime against public administration when it involves public officials. In the business context, bribery is considered a white-collar crime, involving non-violent, financial-based criminal activities. Additionally, when bribery influences sports or competitions, it can be seen as a crime against fair play.

Historical Perspective of Bribery

Bribery is far from a modern concept; its roots can be traced back to ancient civilizations. The Code of Hammurabi, one of the oldest deciphered writings of significant length, dating back to around 1754 BC, touches upon bribery in the context of judicial proceedings. Ancient Roman law also condemned bribery, particularly in the context of elections and court judgments.

During the Middle Ages, English common law began to shape its approach to bribery. Notable legal scholars like William Blackstone (1723-1780), in his seminal work “Commentaries on the Laws of England,” discussed bribery as a destructive crime against the public trust. He defined it as the “taking or giving of a reward for a corrupt judgment or a corrupt act.” Blackstone’s analysis of bribery highlighted its potential to corrupt public institutions, an understanding that has significantly influenced the modern legal perspective.

In the 19th and 20th centuries, as the world experienced industrial growth and the rise of complex governments, the understanding and laws around bribery evolved. The advent of corporations introduced new contexts for bribery, leading to legislation like the U.S. Foreign Corrupt Practices Act (FCPA) of 1977, which specifically targets bribery in international business dealings.

The Model Penal Code’s Definition of Bribery

The Model Penal Code (MPC), serving as a guideline for states in drafting their criminal statutes, provides a comprehensive definition of bribery. According to Section 240.1 of the MPC, a person is guilty of bribery if they “offer, confer, or agree to confer any pecuniary benefit upon a public servant or party official with the purpose of influencing the vote, opinion, judgment, exercise of discretion, or other action in his official capacity.”

This definition broadly encapsulates the act of bribery, emphasizing the exchange of a “pecuniary benefit” – which means something of monetary value – for influence over an official decision. The MPC’s definition covers not only the offering and giving but also the agreement to confer a benefit, showcasing the wide net cast by the code to prevent bribery in its many forms.

Understanding the Elements of Bribery in the MPC

The MPC outlines several elements that constitute bribery:

  1. Mens Rea (Criminal Intent): The intent to influence an official’s actions is a key component. The individual must have a purpose or conscious objective to sway the decision of the public servant or party official.
  2. Actus Reus (Criminal Act): This includes offering, giving, or agreeing to give something of value. It is important to note that the act does not have to be successful for it to be considered bribery.
  3. Concurrence: There must be a concurrence of the mens rea and actus reus. The intention to bribe must accompany the act of offering or giving the bribe.
  4. Attendant Circumstances: These include the involvement of a public servant or party official, and the context in which the bribe is offered.

Defenses to Bribery in the Model Penal Code

The MPC does acknowledge certain defenses to bribery charges, albeit in a very limited scope. Section 240.2 outlines that it is an affirmative defense if the actor, upon solicitation by a person he or she reasonably believes to be authorized to investigate or prosecute misconduct, gives the pecuniary benefit with the intent to aid in the exposure of the misconduct.

This defense essentially provides a safeguard for individuals who participate in sting operations or who provide a bribe under the belief that they are aiding law enforcement. It’s crucial to note that this defense is strictly confined and does not permit the use of bribery as a tool for personal gain or influence under any other circumstances.


  • Model Penal Code § 240.1 (Am. Law Inst., 1985).
  • Blackstone, W. (1765-1769). Commentaries on the Laws of England.
  • U.S. Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq.
  • Code of Hammurabi (translated by L.W. King, 1910).
Modification History

File Created:  07/17/2018

Last Modified:  10/30/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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