Capture is often legal
With few exceptions, “capture” per se is not codified into law. In other words, as a phenomenon, it is by omission often legal.
What is often legislated, regulated, judicialized, and enforced are the blatant manifestations of capture and associated corruption.Bribery, nepotism, and certain instances of insider trading, to name a few, are examples of behaviors and practices generally prohibited by law.
While some symptoms of wrongdoing may be proscribed and demand-side actors punished(e.g. the public official accepting the bribe),both the root cause(undermining the State for private or political interest),the supply-side actors responsible(e.g. the businessperson perpetrating capture),the less blatant behavior(e.g. lobbying),and its effects(resulting inequality, disenfranchisement, market concentration, etc.)often go untouched.
In South Africa, the Judicial Commission of Inquiry into Allegations of State Capture (the Zondo Commission) focused on demand-side actors and symptoms, recommending new legislation, regulation, and prosecution. However, the supply-side actors — corporations and other private (non-political) actors, such as the Gupta family — largely avoided scrutiny. Arguably, this was the primary shortcoming of the Zondo Commission: no institutional reform to regulate private actors.
The absence of corporate capture from legal frameworks, for example, has caused some to question its validity as a concept since, well, it is often legal.In Colombia and Brazil, extractive and agribusiness practices that harm the environment have become legalized, for example, essentially obviating the need to capture the lawmakers, regulators, and judges who previously were the downstream objects of capture.
In addition to legalizing capture practices, soft law, norms, voluntary practices, and the like are also important avenues towards legality for supply-side actors seeking to capture the State.
According to Sherpa (France), “The creation of ‘soft law,’ i.e. non-binding law, is another manifestation of this phenomenon of privatization of norms. As an instrument to make capitalism socially acceptable, soft law enables multinationals to define their responsibilities, either by ‘adhering’ to principles drawn up by States within a multilateral body framework or by producing soft law themselves, individually (codes of conduct, ethical charters) or within multi-stakeholder bodies. The ineffectiveness of these tools, which serve corporate communications and public relations functions more than victims’ access to justice, has been widely denounced.”