Obey the law, and risk irreparable harm to a significant public interest, or break the law and safeguard it? Andrea Capussela writes that this dilemma was briefly the subject of debate in Italy. That nobody said that a third alternative existed casts some light on the country’s problems.
Andrea Lorenzo Capussela led the economic and fiscal affairs office of Kosovo’s supervisor, the International Civilian Office, and is the author of State-Building in Kosovo: Democracy, Corruption, and the EU in the Balkans (I.B. Tauris, 2015), and of The Political Economy of Italy’s Decline (Oxford University Press, 2018). He is now a visiting fellow at LSE’s Department of Government.
Cross-posted from the LSE Website
Expo 2015, Credit: Giovanni (CC BY-NC-SA 2.0)
For a quarter of a century, Italy has been in decline. The last decade has been the worst for her economy since the political unification of the peninsula, achieved in 1861. Productivity is flat, demand low, unemployment high. Poverty and inequality have risen. Discontent is intense, distrust widespread, electoral volatility very high. The country seems locked in a downward spiral, and in its search for an exit the electorate keeps bumping its head on the walls, like a caged animal, impulsively discarding one option after the other: Silvio Berlusconi’s demagogic conservatism, Matteo Renzi’s demagogic progressivism, the Five Star Movement’s demagogic insurgency, now the League’s dark nativism.
In 2010 Milan won the competition to host the 2015 edition of a world exhibition known as Expo. The authorities invested money and political capital in the event, which they hoped could raise the image and self-confidence of the country. These expectations might have been excessive, but Expo was a success (it attracted 21.5 million visitors, compared to the 18 of a similar exhibition in Hannover in 2000).
In 2016 the person who managed Expo and its long preparation, Giuseppe Sala, was elected mayor of Milan. He invested in sustainability, is generally judged a good administrator, and is occasionally mentioned as the ideal future leader of the centre-left, now at its lowest point since World War II.
On the evening of 31 May 2012, Sala signed two official papers concerning the main procurement contract for Expo. They bore the date of 17 May instead. He was charged with forgery, pleaded innocent, but was found guilty. The sentence, issued in July, was as mild as it was controversial. For the backdating reportedly saved Expo from near certain failure. Even the court acknowledged this dilemma, as it inflicted to Sala a mere fine precisely because of the ‘social value’ of the reasons that would have led him to commit the crime.
I exhume this trivial story because it sheds some light on the political economy of Italy’s decline. Sala must be presumed innocent, his defence is not implausible, and the charges will most probably be time-barred before a final decision is issued. But let us assume that he consciously backdated those documents, for otherwise the dilemma would vanish: obey the law, and risk irreparable harm to an important public project, or falsify the dates and save it?
This is exactly how the matter appeared to Sala’s staff and advisers when they – without involving him in their discussions, the judgment attests – devised the backdating solution. The court contradicts them, noting that the problem could have been solved legally. But as in their eyes, and in the eyes of those who later commented on the judgment, who most interest me, the dilemma existed, I shall assume that without the backdating Expo would have failed.
Most comments were favourable to Sala. Some argued that he was unaware of the backdating, without pronouncing themselves on that dilemma. Others said, more or less explicitly, that even if the forgery had been deliberate it would have been the right thing to do, as it saved Expo; especially because, some added, the problem that the backdating overcame derived from the excessive formalism of certain procurement rules, which protected no substantive interests (for simplicity, I shall take also this as assumed).
By acknowledging the ‘social value’ of Sala’s conduct, the court went very close to these arguments. Nor did his few critics seriously dispute them, as they did not go beyond the statement that a finding of criminal guilt is morally incompatible with public office. So, everybody reasoned within the bounds of that dilemma: obey the law, or save Expo?
It was a false dilemma, for a third alternative existed. Having spotted the problem, Sala’s agency could have informed the government – or the public – that an unreasonable procedural rule threatened to sink Expo, requesting its intervention.
It was a legitimate solution, as nothing prevents the executive from adopting, under public scrutiny, or proposing to parliament an ad hoc measure motivated by a clear public interest. It might have been difficult to devise such a measure, but this was a matter that fell within the remit of the country’s political authorities, not of an unelected agency.
It was a realistic solution, because the country had staked its own credibility on Expo. Indeed, the government did often intervene to safeguard that project, including through emergency ad hoc legislative measures. And it was the preferable solution. For breaching unreasonable laws is either an illusory remedy, if it remains episodic, as the problem persists, or a counterproductive one, if it becomes systematic, as it cracks the credibility of laws in general. To state the obvious, in a democracy inefficient rules are to be changed, not broken.
That nobody said this need not surprise. In Italy the rule of law is significantly weaker than in her European peers, and social tolerance for illegality higher. In such a society, a transgression motivated by a recognisably good reason tends to lose its stigma.
Yet the more this perception spreads, the more the rule of law weakens. Herein lies a collective action problem, in fact, which from the perspective of ordinary citizens and firms takes the form of a coordination game, which has multiple equilibria: everyone would live better if the rule of law were strong, but if it is weak it becomes individually rational to break inconvenient laws.
And the equilibrium that society will find depends not just on everyone’s lived experience – actually seeing that laws are respected or broken –, but also on the less palpable signals that citizens and firms perceive, such as the behaviour of the most prominent members or society, or the way in which the press and public opinion deals with such matters. This, I think, largely explains why Italy stands on an equilibrium characterised by low rule of law (and low political accountability), which in turn explains its resistible decline.
To complete the picture sketched by our story, Italy’s laws are indeed complex, frequently unstable, sometimes unreasonable, and certainly too many, as some commentators of the judgment noted. This phenomenon does contribute to the inefficiency of the public sector, generating also a comparative disadvantage for officials loyal to the public interest, and may well have lain at the root of our dilemma. Yet it is another trait of Italy’s equilibrium, and since Tacitus we indeed know that plethoric legislation and weak rule of law tend to be found together (‘corruptissima re publica plurimae leges’, Annals, III.27).
That equilibrium persists chiefly because it is generally confirmed by people’s lived experiences and the signals they receive. Those aired by the individuals who argued that forging documents to save Expo was a good thing did not help.