Multiplicity,hybridity and normativity: disputes about the UN convention against corruption in Germany

Abstract

In 2014, Germany became the 173rd state to ratify the UN Convention against Corruption (UNCAC) – after more than ten years of disputes in the German parliament. To make sense of the protracted debates about ratifying UNCAC, the article follows the recent introduction of Luc Boltanski’s pragmatic sociology to International Relations (IR). I argue that this approach opens new avenues for researching normativity in hybrid arrangements of multiple, overlapping orders of worth and through ongoing tests of the right evaluation of a situation. I show that the belayed ratification of UNCAC in Germany was the result of the hybridity inherent to norms against corruption. In the debates, members of the German parliament relied on competing normative inventories to translate the term ‘public official’ to the German context and to settle the meaning of corruption. This article contributes to IR norm research by unpacking normative multiplicity and contradictions that undergird international norms and disputes about them.

Introduction

Norms against corruption have emerged and diffused in international and regional organisations since the 1990s. ¹ In 2003, this process culminated in the adoption of the United Nations Convention against Corruption (UNCAC) which entered into force only 2 years later. Today, the global anti-corruption norm shares almost universal formal support with most of the states around the globe having ratified one or more international instruments against corruption. ² While Germany signed UNCAC immediately after its adoption, it did not ratify the Convention until November 2014. As a Western democracy and advocate of the good governance agenda, Germany was expected to be a forerunner. Yet, it only ratified UNCAC as the 173rd member state because for 10 years, the German parliament ³ could not agree on the necessary reforms of German bribery laws.

Germany had to align the German Criminal Code’s narrow legal regulations with UNCAC Article 15, which obliges states parties to criminalise the bribing of national public officials, including members of parliament (MPs). As new legislation was required to extend existing bribery laws to the rules governing the conduct of MPs, observers described the challenge as mere ‘regulatory problems’ ⁴ or ‘more procedural than substantive’ ⁵ issues. However, Anja Jakobi has rightly cautioned that ‘changing the rules of national politics might be more difficult than the current acceptance of global anti-corruption norms suggests’. ⁶ Disputes about corruption flared up in the German parliament between 2009 and 2013 when the opposition introduced three bills to pave the way for ratifying UNCAC. German MPs had to come to terms with criminal law regarding their own conduct – a dispute which they could not settle until 2014. Germany’s tedious ratification process was not only about technically adapting the German Criminal Code but also brought up highly normative questions about the role of German MPs as ‘public officials’ and the very meaning of a legal concept of political corruption.

To make sense of the protracted debates about ratifying UNCAC in Germany, the article builds on Luc Boltanski’s pragmatic sociology, which has recently been introduced to International Relations (IR). ⁷ Pragmatic sociology assumes that norms are inherently fragile. They are less shaped by silent acceptance and compliance than by ongoing disputes. ⁸ It shifts the focus from individual norms to the concept of ‘orders of worth’: normative inventories through which actors evaluate the meaning of practices. It thus allows IR scholars to reconstruct how actors navigate their complex normative environment. So far, scholars have followed this approach, for instance, in the study of diverse ‘moral narratives’ in the field of global health, disputed hearings in the US Congress on the conduct of security forces in the ‘war on terror’, different justifications of responsibility in the UN Security Council, or parliamentary debates about legitimacy in the financial crisis. ⁹ In this article, I link pragmatic sociology to IR norm research and the study of norms against corruption.

I argue that pragmatic sociology contributes to norm research in IR by rendering intelligible how actors cope with, capitalise on and create normative multiplicity and hybridity. Both are crucial, yet often neglected, sources for disputes about international norms that go beyond using distinct normative backgrounds or semantic ambiguity as explanation for controversy and change. ¹⁰ One the one hand, multiplicity alludes to the various, and often contradictory, orders of worth that shape normativity in a given issue area or situation. On the other hand, hybridity refers to norms that comprise more than one order of worth in often fragile arrangements. The ever-present tensions between multiple overlapping and competing normative inventories leads to ongoing processes of negotiation and is a crucial feature of normative disputes and their outcomes. ¹¹ Beyond formal acceptance or rejection, actors struggle to cope with multiplicity, to disentangle hybridity and thereby create normativity in practice. Moreover, active ‘hybridisation’ can be a crucial driver of norm dynamics when actors link different normative claims to forge new or modified norms. ¹² The central contribution of pragmatic sociology to IR norm research is thus to zoom in on how multiplicity and hybridity play out in the making of fragile normative arrangements.

Tying in with a practice- and agency-based approach to the translation and contestation of norms, ¹³ this article unpacks the global anti-corruption norm through an analysis of disputes about corruption in the German parliament. So far, few studies, including some on comparative corruption, address local translations of the anti-corruption norm and contestation over what corruption means in Western democracies. ¹⁴ Only recently, research has turned to analysing how contestation affects the robustness of anti-corruption norms at the global level. ¹⁵ However, this article is less interested in the discontents between a global anti-corruption norm and national opposition or the ambivalence of norms. I argue that the roots of disputes about corruption and norms against it in Germany are to be found in the inherent hybridity within norms and their underlying concepts. The multiplicity surrounding and the hybridity inherent to the anti-corruption norm provides actors with competing reference points to evaluate the appropriateness of political or parliamentary practices.

I begin by briefly discussing recent developments in IR norm research and scholarship about anti-corruption norms. In the section that follows I show how pragmatic sociology can complement this research by shifting the analytical focus towards orders of worth and evaluative tests. In section four, this framework is used to analyse German parliamentary debates. In the analysis, I focus on the evaluative tests and the role of multiple orders of worth in the practice of MPs to make sense of their disputes about UNCAC which prevented a quick ratification. The UN Convention disrupted parliamentary normalcy. The hybridity of the norm against corruption allowed parliamentarians to invoke contradictory claims, leading to an only hollow compromise. The article concludes by discussing the role of multiplicity and hybridity in the case of the anti-corruption norm in Germany and summarises how pragmatic sociology opens new avenues for the study of normativity in International Relations.

Norm research and the anti-corruption norm

Constructivist research showed that norms matter in global politics and developed concepts to study their emergence and diffusion. ¹⁶ Advancing this research agenda, approaches on norm localisation, translation, and change have focused on disputes about norms after their emergence at the global level. ¹⁷ Contestation research shares an emphasis on the role of challenges to international norms with this literature. It differs, however, regarding the effects of contestation on international norms: while some authors almost equate contestation with norm erosion, ¹⁸ others emphasise its productive effects and encourage institutional access to contestation to enhance legitimacy. ¹⁹ A recent integrative approach proposes to distinguish different effects of contestation on norm robustness. ²⁰

Research on the anti-corruption norm has followed these general trends in IR norm research. First studies on anti-corruption norms focused on their emergence in international organisations and subsequent global diffusion. ²¹ In contrast to diffusion studies’ rather norm-affirmative perspective, scholars with a critical perspective deconstruct the anti-corruption agenda as an international hegemonic discourse. ²² Neither perspective analyses how actors construct the meaning of global anti-corruption norms beyond their global constitution. Others have analysed local perspectives on corruption in the translation of global norms with a focus on countries from the global South. ²³ Little analysis has been made of the dynamics of anti-corruption norms and the contested meaning of corruption in the global North – not only in IR norm research but also in comparative corruption studies. ²⁴ Only very recently, scholars have explicitly addressed the contestation of anti-corruption norms and analysed whether different types of contestation weaken or strengthen them. ²⁵

From the perspective of existing approaches, norm research would interpret Germany’s late ratification of UNCAC as a case of norm contestation or analyse the translation and incremental changes of a global norm at the national level due to Germany’s particular normative background. The analysis of partisan politics in Germany has identified the fundamental disagreement between parliamentarians about the nature, extent and effects of lobbying more broadly as main barrier to ratification. ²⁶ However, these approaches do not grasp the deeper normative tensions inherent to the anti-corruption norm as a source for contestation which have belayed the ratification process in Germany. Even scholarship on contestation often defines normativity as tied to individual global norms and their fixed core instead of focussing on the social practices that constitute it. ²⁷ Contributing to the growing body of research focussing on agency-driven interactions between norms or within complex norm sets, ²⁸ in this article, I trace how normativity emerges from agonistic meaning-making processes about multiple, contradictory normative claims that shape the meaning of corruption and norms against it.

Pragmatic sociology and the study of normativity in International Relations

The introduction of practice theories in IR has promised a better understanding of the making of global phenomena by giving precedence to the analysis of practices. ²⁹ In particular, pragmatist approaches, such as Boltanski’s pragmatic sociology, provide research tools to better understand international normative complexity in and through situated practices. ³⁰ Norm research and ‘critical approaches’ in international practice theories ³¹ alike often focus on stable norms or regular patterns of behaviour. ³² Pragmatist approaches, in contrast, take on the ‘central role of the ever-present instability of meaning in international politics’. ³³ While norms are widely referred to as a ‘standard of appropriate behaviour’ and practices are understood as ‘competent performances’, ³⁴ pragmatists ask whether and how actors come to agree on what ‘appropriateness’ and ‘competence’ mean in specific situations. How actors achieve such normative agreements, is one of the central questions Boltanski seeks to answer.

Pragmatic sociology focuses on disputes. It offers a framework for shedding light on how ‘the agonistic facet of practices’ shapes and creates normative arrangements in specific situations. ³⁵ Methodologically, pragmatic sociology takes the plurality of social practices and actor perspectives as starting point for the analysis of normative meaning-making processes. ³⁶ Pragmatic sociology provides two promising tools for researching global norms: First, the notion of orders of worth highlights the irreducible multiplicity of normativity. Focussing on overlapping and competing orders of worth can help us better understand disputes which result from tensions inherent to hybrid norms. Second, the notion of tests points us to the central role of situated and contentious evaluations. Pragmatic sociology thus contributes to a better understanding of norm complexity and multi-dimensionality as drivers of normative disputes in international politics. ³⁷ It sheds light on how actors create, alter and unmake the hybrid links constituting international normativity.

Normativity in orders of worth

Orders of worth provide normative inventories of the different social spheres that actors use to make sense of their everyday situations and reach situated agreements under a ‘higher common principle’. ³⁸ Tine Hanrieder has cogently described this rather vague notion as ‘a plural set of valuation systems that are not reducible to each other’. ³⁹ However, orders of worth should not be misunderstood as unambiguously confined norm sets or normative orders of specific localities. As analytical concepts, orders of worth open new research avenues beyond the focus on individual norms. Pragmatic sociology investigates how actors rely on ‘different principles of worth’ for justifying claims or making critiques. ⁴⁰ Justification and critique transpire in complex and tense normative environments and amidst a multiplicity of orders of worth setting the ground for normative hybridity. Hybrid norms comprise in themselves more than one – often overlapping and competing – order of worth. Hybridity thus differs from ambiguity as it is not about ‘multiple meanings’ of a norm, ⁴¹ but about the combination of several and often competing normative claims within a norm. ⁴² This shifts the focus from semantic ambivalence or different backgrounds to the multiplicity of normative claims forged into a prima facie individual norm as source for contestation.

As I demonstrate in the empirical analysis, corruption and norms against it are a case in point. While Hanrieder has cautioned against adopting the original orders of worth developed by Boltanski and his colleagues beyond their particular French context, ⁴³ the study of corruption norms well illustrates the multiplicity and irreducibility of these normative inventories. Today, corruption is usually defined as the ‘misuse of public office for private gain’. ⁴⁴ This definition suggests a clear delineation between public and private – between what Boltanski and Laurent Thévenot have termed the ‘civic’ and the ‘domestic’ orders of worth. As an ideal-type, the domestic world is ordered by the worth of personal relationships. ⁴⁵ The civic world is ordered by the worth of collectives and the representation of their general will. ⁴⁶ This modern view of the concept of corruption assumes an only supposedly clear-cut boundary that is, however, irrevocably linked to the questions of how ‘societies come to form and regulate their conception of normalcy regarding the public/private split.’ ⁴⁷ From a historical perspective, this distinction emerged only recently and is but one way to understand the meaning of corruption that has been assessed through varying evaluative criteria for political practices. ⁴⁸ As a global norm, UNCAC is a prima facie formal expression of the public-private boundary. However, pragmatic sociology’s concept of orders of worth allude, first, to the intersection of normative inventories and the fragility of their boundaries and, second, to the relevance of further normative inventories that shape disputes about corruption and norms against it.

Neither the boundaries of orders of worth nor the concept of corruption are stable or conclusive. Quite the contrary: Friction is likely wherever orders of worth overlap. As a compromise, the definition of corruption underpinning UNCAC aims at mitigating the overlap between civic and domestic. At the same time, however, the meaning of corruption and norms against it is driven by the normative inventories of the market, industrial, reputational, projective, or further orders that become relevant in practice. The ‘market world’ is ordered by the worth of competitiveness and success. ⁴⁹ The ‘reputational world’ is ordered by the worth of recognition in public opinion. ⁵⁰ The ‘industrial world’ is ordered by the worth of efficiency in production. ⁵¹ The ‘project world’ is ordered by the mobility and connectivity of the constituents of networks. ⁵² These and further normative inventories provide for different evaluations of what should when and why qualify as corrupt: recognition by public opinion rests on accountability and transparency, success in competition on fair conditions and efficient production and projects only work if no one takes advantage of the close links in networks. ⁵³ In a nutshell, different orders of worth would suggest different evaluations of what a quid pro quo in personal relations would mean depending on situation and context. In the empirical analysis, I show that the notion of corruption neither constitutes a clear boundary between public and private norms nor is it limited to these orders of worth. The complex disputes about corruption and norms against it are torn between multiple normative inventories.

Normativity through tests

In disputes, actors negotiate normative multiplicity inherent to hybrid norms to establish what is socially appropriate in a given situation. Disputes can arise from uncertainties about the meaning of an order of worth or clashing orders of worth. A situation becomes a dispute when actors disagree about how to qualify it. ⁵⁴ Normative disputes are about the right evaluation of a situation. ⁵⁵ Actors ‘test’ their particular evaluation in a ‘scene of a trial’ where the creative and reflective dimension of practice becomes relevant. ⁵⁶ A pragmatist perspective sheds light on the manifold activities in and through which actors ‘knit things together’ in order to bring about a ‘definition of the world.’ ⁵⁷ When situations are normatively precarious, actors utter their puzzlement, present evidence, formulate critiques, justify their claims to establish the worth of something and reduce uncertainty. ⁵⁸ To solve disputes, actors try to forge situated compromises between overlapping orders of worth that ease tensions inherent to hybrid normative arrangements. ⁵⁹ Compromises seek to temporarily reconcile the overlapping orders of worth that actors actualise in practice. ⁶⁰ However, compromises are always fragile because they ‘satisfy some, but rarely all, concerns of individual orders’. ⁶¹ As snapshots, hybrid compromises are intermediate outcomes in open-ended normative disputes.

Disputes are thus more than different forms of contestation. ⁶² Actors drive disputes by manifold evaluations and normative practices of justification and critique. The multiplicity of orders of worth constitutes the possibility to criticise because their normative plurality ‘allows persons to disengage themselves from any given situation’ and consider it from an external point of view. ⁶³ By creating a difference between what is and what ought to be, normativity comes about. ⁶⁴ This approach sheds light on justification and stabilising practices as well as different forms of critique and unsettling practices actors enact in disputes. ⁶⁵ This is not to say that actors would not employ further practices in disputes, such as ‘strategic’ or ‘tactical practices’. ⁶⁶ Yet, what makes practices normative is the link between objects, persons and actions to a particular worth and hence a claim to what reality ought to be. It is through evaluations that actors actualise claims to oughtness or appropriateness and make them socially meaningful.

In sum, pragmatic sociology combines a structural and an interactionist perspective on the making of normativity in global politics. First, orders of worth provide for tools to think about multiplicity and hybridity in international norm dynamics. They advance existing approaches by moving beyond a focus on individual norms. Second, the notion of tests provides for a micro-level perspective on how normative inventories play out in situated disputes. Taken together, orders of worth help us grasp how multiplicity and hybridity are challenges in, resources for and outcomes of normative disputes. Multiple normative inventories raise the uncertainty about what is appropriate in a given situation. Actors can utilise these inventories in order to justify or criticise competing normative claims. Normative disputes result in compromises that try to (temporarily) ease the tensions between orders of worth.

Negotiating corruption in the German parliament

The 17^th term of the German parliament (2009–2013) was shaped by numerous debates about lobbying and corruption. ⁶⁷ The governing coalition consisted of the joint parliamentary group of the Christian Democratic Union and the Christian Social Union (CDU/CSU; 237 seats) and the Free Democratic Party (FDP; 93 seats). The Social Democratic Party (SPD; 146 seats), the Left (Die Linke; 76 seats) and the Greens (Bündnis90/Die Grünen; 68 seats) formed the opposition. ⁶⁸ Disputes over corruption and UNCAC evolved in the debates about bills to reform the section on bribing parliamentarians in the German Criminal Code (Strafgesetzbuch, StGB). Each parliamentary opposition group had put forward a proposal for reforming the law on parliamentary bribery. All the proposals aimed to broaden the criminal offence beyond the narrow confines of vote buying and selling to close the gap between Section 108e StGB and UNCAC Article 15, ‘Bribery of national public officials’. ⁶⁹ Since the opposition, rather than the government coalition, proposed the bills, none of them found majority support: They were all dismissed. However, each of the bills triggered the central parliamentary processes in which MPs publicly disputed the proposed legislation. ⁷⁰

Because the provisions of Article 15 are part of the legally binding sections of UNCAC, Germany first had to reform its laws about MP bribery before ratifying the Convention. ⁷¹ Article 15 of UNCAC states that the ‘promise, offering or giving, to a public official’ as well as the ‘solicitation or acceptance by a public official . . . directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties’ shall become a criminal offence in each State party. ⁷² The relevant section in the German Criminal Code, Section 108e StGB, defined bribery of parliamentarians more narrowly. ⁷³ With regard to MPs, German law only considered direct acts of election manipulation through offering material, primarily monetary, advantages – the buying and selling of votes – as bribery. For instance, immaterial advantages, that is, promising an official position, granted to a third-party, would have been excluded. ⁷⁴

Method and data

In this article, I focus on the debates about the three proposals to reform Section 108e StGB as disputes about normativity. ⁷⁵ The official minutes of these debates – 48 statements, including speeches, questions to the speaker and brief interventions – constituted the core empirical data. ⁷⁶ In the analysis, I followed an interpretive approach to reconstruct the meaning-making processes in the debates – how the parliamentarians ‘make sense of their worlds’. ⁷⁷ I was less interested in the speakers’ general positions than in how they reflected on their own parliamentary practices: how they evaluated what appropriate behaviour as a public official should look like.

I conducted two rounds of thematic coding: First, I reconstructed how actors described the situation and how meaning was given to practice. The coding was loosely guided by broad questions: How did actors evaluate UNCAC and the need to reform criminal law? How did speakers justify their claims and criticise other positions? Which political practices were described as corrupt, which not? How did they draw the boundary between public and private? After the first coding round, I grouped statements under three overarching themes: the necessity to ratify UNCAC, the term ‘public official’ in the German context, and the concept of ‘corruption’ as such. I used these categories in a second round of coding to consolidate my material. In the following four sub-sections, I, first, show how UNCAC disrupted parliamentary normalcy and triggered a debate about corruption; second and third, I demonstrate how hybridity played out in translating ‘public official’ and settling the meaning of corruption. I conclude with a discussion of the eventual ratification as a hollow compromise. I illustrate the results of my analysis along quotes from the debates in the German Parliament. ⁷⁸ I have chosen the quotes presented in this section following a ‘strategy of maximum contrast’ in order to depict the major themes of the debates by juxtaposing opposing positions. ⁷⁹

Disrupting parliamentary normalcy

After Germany had signed UNCAC, the MPs had to put to the test existing German regulations and the appropriateness of their conduct that they had so far taken for granted. The question of whether Germany should ratify UNCAC created a situation of uncertainty that escalated into a normative dispute about parliamentary practices. The MPs used different and sometimes competing reference points to justify their claims regarding corruption in the German parliament and norms against it. Some MPs questioned that Germany had an issue with corruption at all – and hence they had not to deal with UNCAC: ‘It is also interesting that the need to have international agreements on the subject is always mentioned – they do exist – but no cases are ever cited that actually need to be punished’. ⁸⁰ Even without ratifying the UN Convention, MPs conducted their parliamentary practices appropriately and competently, the argument went. They presented long lists of allegedly very corrupt countries that had already ratified UNCAC as evidence that the Convention was not the appropriate tool to combat corruption. ⁸¹ These voices depicted the German parliament as uncorrupted normal Self in contrast to a corrupt and deviant Other, in order to reassure the MPs of the normalcy of German parliamentary practice. ⁸²

While MPs across all parliamentary groups rallied behind and reiterated a firm stance against corruption at the beginning of their statements, the question of ratifying UNCAC created uncertainty about how to cope with corruption in parliamentary affairs. Ansgar Heveling (CDU/CSU), for instance, stated that ‘For Germany and for us, the CDU/CSU parliamentary group, fighting corruption is important. We believe that this is not just about formal rules’. ⁸³ In this and similar statements, MPs evaluated the situation as one in which informal rules are crucial for addressing corruption and buttressed this position by referring to national laws and parliamentary regulations already on the books. Even if corruption was more than a non-issue, it was already sufficiently covered through prevention and regulation. Reform in the sense of UNCAC’s provisions was therefore deemed unnecessary. ⁸⁴ The positive evaluation of Germany’s state of affairs with regard to corruption was thus used to mute or avoid any further action following from the UN Convention.

Claims about adequate existing regulations and the self-reassurances about appropriate parliamentary practice in Germany where, however, disrupted when other MPs used UNCAC to call for a change of German law. Eva Högl (SPD), for instance, refuted the reluctance towards UNCAC by stressing the relevance of international law:

I want [. . .] to say one more thing about the UN Convention: Today, I was quite surprised that during the debate you, Ms Voßhoff, commented that signing this convention was a mistake. I think that we MPs all recognise that international agreements must be respected and not be subjected to day-to-day political business and current opinion. ⁸⁵

Germany had signed the Convention and thus had to ratify it. ⁸⁶ MPs valued international law as a worth in itself that should guide the evaluation of political practices in Germany. In addition, the long and growing list of countries that had already ratified UNCAC was frequently invoked with regard to concerns about Germany’s reputation. ⁸⁷ Long-overdue ratification was described as embarrassing or shameful. Moreover, others replied, the deadlock not only damaged Germany’s reputation internationally, but also domestic opinion of parliamentarians and national politics more broadly. ⁸⁸ The worth of ratification was evaluated following a ‘desire to be recognised’ ⁸⁹ as member of the international community and by the German public. These arguments called into question the standstill and unsettled the narrative of normalcy and an uncorrupted German parliament.

In addition, MPs buttressed their call for action by referencing several calls for action addressed to the German parliament. In particular, 35 leading German companies had addressed all parliamentary groups in 2012 in an open letter calling the parliament to ratify UNCAC. ⁹⁰ The CEOs had called for rapid ratification to avoid not only reputational damage but also further competitive disadvantages for the German economy. This critical evaluation from outside the parliament was based on themes of the market order, where worth is given to the principle of fair competition. ⁹¹ In a similar vein, German companies had already triggered negotiations about an OECD anti-bribery instrument in an open letter to OECD economic ministers in the 1990s. ⁹² This development also well illustrates how evaluations and arrangements of hybridity can change: Up until the 1990s bribes of public officials in transnational business transactions had been common and even tax-deducible in many countries. ⁹³ Competitiveness and efficiency was ensured by bribes.

In sum, the signing of UNCAC disrupted the self-image of parliamentary normalcy in Germany. This disruption becomes evident in the futile attempts by MPs to justify the status quo against critique coming from within and outside the German parliament. It forced MPs to re-evaluate their own role as public officials and to settle what they meant by corruption – the two central issues in the dispute about UNCAC in parliament.

Translating ‘public official’

The question of how to translate ‘public official’ into the German language and context raised the stakes in the dispute. This required to answer the question of what a public official is. Essentially, MPs had to make normative claims about what a German MP should be, how she should act and how this would relate to UNCAC. In Germany, the term is rendered as Amtsträger – someone who works in public administration (Beamter), which usually refers to a civil servant and not a member of parliament. In the debates, MPs (Mandatsträger or Abgeordnete) were fiercely distinguished from civil servants, as in this statement by Siegfried Kauder (CDU/CSU):

We do not want to be treated like civil servants, and indeed, we must not. That is the flaw in this UN Convention. The approach itself is wrong. Whoever says that ‘a parliamentarian must be treated like a civil servant’ is wrong from the start. ⁹⁴

MPs viewed the inclusion of both elected and appointed public officials – civil servants and MPs – in UNCAC Article 15 as equating the two groups and as conflicting with German law. ⁹⁵ The problem of translation became a dispute about German MPs versus civil servants and thus about the normative standing of public figures and political practice. In other words, which order of worth should guide the evaluation of their practices and thus, ultimately, their appropriate behaviour as democratic representatives?

Jörg van Essen (FDP), for instance, claimed that UNCAC fundamentally misunderstood the role of MPs:

MPs are not better than civil servants, but as the constitution says, they are different. This is why it was clear to all jurists [in parliament] that the UN Convention’s equation of civil servants with MPs could not be translated into German law. We cannot pass legislation in this parliament that violates the constitution. ⁹⁶

Many MPs similarly bolstered their arguments by referring to German constitutional law, the Grundgesetz (GG). ⁹⁷ To underpin claims of UNCAC’s incompatibility, they invoked the constitutional principle of German MPs’ ‘free mandate’, stating that they are ‘not bound by orders or instructions and responsible only to their conscience’, as codified in Article 38 (1) GG. ⁹⁸ They argued that, unlike civil servants, MPs freely represent interests – not necessarily the general will. Such arguments extrapolate normative tensions within the civic order of worth where public roles can indeed differ. Siegfried Kauder (CDU/CSU) put it bluntly: ‘Politics is its own business’. ⁹⁹ Politics are constructed as a sphere distinct from public service which thus follows specific rules escaping the strict adherence of norms of the civic order. MPs justified their self-image of appropriate behaviour by setting up a hybrid normative arrangement including normative claims from both the civic and domestic order.

Many MPs saw criminal law as an inappropriate means to deal with parliamentary practices and corruption. MPs repeatedly described voters as the primary judges of their behaviour, with Michael Hartmann (SPD) arguing, ‘the highest authority for MPs is not a court, but the voter’. ¹⁰⁰ In other words, the relevant test of appropriateness for parliamentary practices should rely on the reputational order and public opinion, not on legal proceedings. Although UNCAC clearly defines public officials as ‘any person holding a legislative, executive, administrative or judicial office of a State party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority’, ¹⁰¹ MPs refused to be addressees of UNCAC and criminal law. They argued that UNCAC Article 15 cannot be applied to Germany because it inaccurately describes its parliamentary processes. The affirmation of German provisions served as a justification of inaction.

Yet, the free mandate described in Article 38 (1) GG itself became a contested legal artefact. In contrast to the arguments above, Eva Högl (SPD) argued that ‘we MPs are not bound by orders or instructions, and are only responsible to our conscience. We definitely do not want MPs to be bound to orders and instructions’. ¹⁰² Högl and other MPs viewed the criminal law regulating corruption as safeguarding rather than undermining the constitutional principle. The German Federal Court judgement of 2008 regarding a local corruption scandal was also brought into the debate. ¹⁰³ MPs used this judgement in which the Court had called on the legislator to close the gaps in regulation on bribing elected officials. ¹⁰⁴ Legal provisions should be applied without discrimination. In addition, MPs highlighted unequal treatment by pointing out that Germany’s Act against International Corruption (Gesetz zur Bekämpfung internationaler Bestechung, IntBestG) had been quickly passed to speed ratification of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997. The German legislation made actively bribing foreign public officials – including MPs – a criminal offence. ¹⁰⁵ Jerzy Montag (The Greens) noted that subjecting foreign parliamentarians to stronger rules than national parliamentarians revealed the main difficulty regarding reform: In the 1990, ‘only foreign members of parliament were concerned, not us’. ¹⁰⁶ Haline Wawzyniak (The Left) pointed out that apparently, ‘agreements of international law only apply to us if we happen to find them convenient’. ¹⁰⁷ MPs thus criticised double standards for national and foreign MPs, and claimed that it is ‘truly preposterous’ to ‘punish parliamentarians in other countries for an offence that is not punishable in Germany and for German MPs’. ¹⁰⁸ In these arguments, the crucial function of critique for ‘unmasking contradictions’ and pointing out injustices becomes obvious. ¹⁰⁹ By criticising the selectiveness and contradictions in anti-bribery legislation, MPs articulated suspicions of self-interest and challenged the standstill.

Although references to German law depicted the translation of global norms as a sophisticated and irresolvable legal issue, translating ‘public official’ turned instead into a debate about the normative role of parliamentarians. How to qualify parliamentarians was not an objective regulatory problem, but about boundary-drawing between orders of worth and the question of which principles should have precedence. On one hand, MPs argued about the legally equal treatment of elected and appointed public officials and the worth of public accountability, objectivity and adherence to the general will vis-à-vis reciprocity and the representation of particular interests. On the other, they debated their accountability and worth of public reputation and transparency.

In sum, the hybridity inherent to the notion of corruption triggered disputes about how parliamentarians perceive their role and how appropriate behaviour or competence in their conduct ought to look like. The parliamentarians could not agree on a translation of ‘public official’ that would reconcile these normative tensions.

Settling the meaning of corruption

The question of how to define corruption was usually answered by referring to its ambiguity. MPs seem to agree on ‘how complicated it is to demarcate what is acceptable and what is not’, ¹¹⁰ and that ‘ultimately, where corruption begins and ends cannot always be clearly judged’. ¹¹¹ These quotes exemplify parliamentarians’ unease that reforming the law would do precisely that: draw a line between normality and deviance in the sense of a ‘modern’ concept of corruption underlying UNCAC Art. 15. The inherent hybridity of corruption and norms against it came to the fore. Conflicting and overlapping evaluative inventories made developing a fixed definition for criminal law particularly challenging. Even for proponents of reform, the issue of how to define corruption remained contentious. There has been little agreement about which practices should be regarded as corrupt – such as gift-giving and invitations, which are viewed positively in the domestic world but negatively in the civic one. ¹¹² In the private world, the two practices are associated with reciprocity. In the market world, however, such a quid pro quo would undermine competitiveness; in a projective world, it would challenge the trust in interconnected networks. In public life, the personal bonds they create are generally suspect. ¹¹³

The SPD proposed the term parliamentary customs to exclude certain practices from the definition of an undue advantage constituting a criminal offence of parliamentary corruption. Others objected

that gifts in keeping with ‘parliamentary customs’ should be excluded from the bill. This is very broadly formulated – and I say this as a lawyer. When I read a phrase like this, alarm bells start ringing. . . . The point here is that catering at briefings and festive events should be fine – whatever is customary should be fine. ¹¹⁴

As this quote by Raju Sharma (The Left) indicates, MPs did not agree about where to draw the line between corrupt and non-corrupt practices. Others doubted that the notion of parliamentary customs could uphold the constitutional principle to ensure legal certainty in criminal law. ¹¹⁵ Essentially, MPs engaged in disputes about which practices should be evaluated as an undue advantage and who should decide about it. They could not agree on which normative inventory to use in the first place.

In the debates, the MPs illustrated this challenge by referring to parliamentary evenings, ¹¹⁶ which generally include catering for the guests from parliament. Would any parliamentary evening – in which interest groups host parliamentarians – constitute an undue advantage? Or rather an exclusive invitation to a luxury resort on the island of Sylt at the German North Sea, as it had happened in April 2011 in the context of de-regulations of the gambling market? ¹¹⁷ Another example for the unsettled meaning of corruption put forward in the debates are gifts parliamentarians would receive when interacting with their constituencies as described by Jörg van Essen (FDP):

If, for example, you visit a business like a bakery, you typically receive a small gift. Accepting it is a matter of courtesy. [. . .] This is often accompanied by the wish that you’ll defend the interests of the business in question, which were just presented and generally are well justified. ¹¹⁸

Where should legislators draw the line between socially appropriate behaviour and undue advantage constituting a bribe? In this case, van Essen relied on the worthiness and expectation of reciprocity. His evaluation collides, however, with the rejection of personal bonds outside the domestic world.

In addition to the challenges of defining corruption, MPs noted the risk of the bills granting too much discretion in applying the law, which would ‘create a virtually limitless grey area,’ ¹¹⁹ as Ansgar Heveling (CDU/CSU) put it. In the reactions to these proposals we observe what Boltanski described as a typical move to deflect critique by ridiculing the claims or exaggerating their consequences. ¹²⁰ Pushing this tension to the extreme, one critic enquired whether MPs really wanted the state attorney to accompany them to events and count how many sandwiches they ate. ¹²¹ They attempted to separate the question of the politically acceptable from the criminally illegal because it would open a gateway to criminalise parliamentary practice and instrumentalise accusations of corruption against political opponents. ¹²² Yet, the concerns about excessive discretion were deflected with statements of confidence in the competence of Germany’s state attorneys to handle legal indeterminacy. ¹²³

The debate about invitations and gift-giving illustrates that parliamentary practices travel several orders of worth: They are part of either personal or project-based interactions with, for instance, constituents or business representatives. At the same time, their practices usually depend on recognition in broader public opinion. The MPs’ constitutional right to only be bound by conscience can sit uneasily with pursuing the general will vis-à-vis the representation of particular interests. A definition of corruption would need to reconcile the hybridity of competing normative inventories.

In sum, a definition of corruption had to delineate boundaries that would be difficult to be upheld in parliamentary practice, the MPs feared. They grappled with the (im-) possibility of sorting out the inherent hybridity of the term and could not settle the meaning of corruption.

Forging a hollow compromise

In the debates until 2013, the meaning of the global norm against corruption and the boundaries between orders of worth remained vague. Amidst the hybridity of the anti-corruption norm, the MPs could not agree on a compromise to reconcile the colliding normative claims. When the new government coalition of CDU/CSU and SPD successfully pushed for reform and eventual ratification in 2014, the unease that many MPs felt regarding new laws to criminalise parliamentary bribery did not ebb. Frank Tempel (The Left), for instance, complained that MPs still seemed to be much more concerned with the ‘question of who could incorrectly be held accountable for what’ and less with an impartially negotiated law on bribery. ¹²⁴ As a consequence, perhaps, the reformed Section 108e StGB codifies a very high burden of proof that neglects the diffuse interactions in political practice and ultimately continues to limit legal culpability for MPs. ¹²⁵ If the new law was not applicable in practice, it would remain a ‘symbolic anti-corruption law’, only satisfying public pressure but limiting the actual legal scope, ¹²⁶ and still not legally implement UNCAC in Germany. ¹²⁷ The narrative of ‘politics as its own business’ would have prevailed to test the appropriateness of parliamentary practices. MPs could not fully resolve the normative tensions that undergird the notion of corruption and norms against it but only forge a hollow compromise that epitomises the challenges for diffusion and implementation of UNCAC and global anti-corruption norms.

Conclusion

International norms are fragile arrangements, nested in complex normative environments. In this article, I have argued that pragmatic sociology provides useful research tools to make sense of normative multiplicity and hybridity in and through agonistic meaning-making processes. First, the concept of orders of worth can advance IR norm research by better explaining inherent normative tensions within and conflicts between international norms. Second, the empirical focus on tests and disputes about evaluation can show how actors cope with, utilise and create multiplicity and hybridity in and through practice. This approach widens the analytical perspective on norm dynamics and normative practices as it looks beyond normative backgrounds as sources of contestation. Rather, normative disputes are about the multiplicity and hybridity of competing and overlapping normative inventories. Pragmatic sociology provides IR scholars with a toolbox for advancing the study of international norm dynamics.

In this article, I have illustrated the potentials of pragmatic sociology for IR with an analysis of the longstanding dispute about ratifying the UN Convention against Corruption in the German parliament. The major reason for the tedious ratification process was not a misfit between the German criminal code and UNCAC. Instead, the reason for the disputes is to be found in the hybridity of the norm against corruption and the tensions between orders of worth. The contentious evaluations show how this hybridity impeded the chances for compromise and ratification of UNCAC. Despite the global agreement on an anti-corruption norm, it remains open to situated negotiations what the core concepts of this norm mean. The MPs argued about the appropriateness and competence of their political conduct based on contradictory orders of worth. Even apparently clear concepts such as public official developed normative meanings due to the underlying and competing normative principles. In light of this ensuing normative hybridity, the reformed law, which led to ratification, might cloak parliamentary practices from criminal accountability.

This finding has important implications for the broader global anti-corruption agenda. The hybrid meaning of the international norm against corruption remains to be tested in specific situations. In implementation and application, the hybridity of the norm itself is likely to produce contingent outcomes. If even in states at the centre of the global anti-corruption agenda, such as Germany, the meaning of corruption remains disputed, we will likely observe similar controversies in the regulation of bribery elsewhere as long as underlying assumptions are not settled. ¹²⁸ Similarly, the attempts to set up global benchmarks of corruption like the Corruption Perception Index can hardly be objective assessments, given the uncertainty about its meaning. ¹²⁹ This yields power to those actors who categorise countries according to their ‘degree’ of corruption. ¹³⁰ Given the hybridity of corruption, uniform agendas for its implementation remain futile endeavours.

Beyond the case of Germany’s ratification of UNCAC, pragmatic sociology opens new pathways for researching the contentious global politics not only of norms but also of institutions or communities. ¹³¹ Future research should focus on ongoing disputes at the boundaries of multiple orders of worth and about the hybrid normative arrangements between, for instance, sovereignty and responsibility, the prohibition on the use of force and the right to self-defence, the international whaling moratorium and its exceptions, or economic development and climate protection. By mapping the orders of worth at play in different fields of international politics IR scholarship can develop a better understanding of the sources, dynamics and outcomes of normative disputes. Pragmatic sociology invites IR scholars to take on the many sites of negotiating normative multiplicity and hybridity, where actors wrestle about the tensions between and within norms, capitalise on contradictions of orders of worth and forge fragile compromises that constitute international normativity.