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The point here is that while the action of the accessory does not cause the action of the principal (in Gardner’s terms) it undoubtedly ‘contributes’ to it. Equally the erstwhile ‘principal’ could be said to have ‘caused’ the wrongdoing of the accessory through their reliance on a certain relationship. Do we want to say that they are complicit in a separate wrong, or recognise that they are bound up in the same course of action? The broader point here is that Gardner arguably needs a stronger account of social action since in what any individual does they are always anticipating, relying on or contributing to the actions of others. It is consequently hard, if not impossible, to distinguish between what I do (simpliciter) and what I do that contributes to the actions of others.
Gardner (footnote 2, p. 130) suggests that vicarious liability is different from complicity because liability is “irrespective of one’s own participation in them” (emphasis in original). But one may take the opposite view that this is the way of institutionalising in law the fact that the superior is always participating in the wrongs of their subordinates because of their position. Moreover, it is not clear that this can always be distinguished from the position of failing to prevent wrongdoing.
This is not to disagree with Hörnle (p. 147) that it might perform a useful function in relation to sentencing.
There may be problems with the disavowing of the actions of a democratically elected government, however much we might disagree with them. The point here concerns the unwanted sense of complicity in wrongdoing that was deployed to great effect in the protests against the war.
On the different forms of representation and their consequences for thinking about the state and responsibility, see S. Veitch, “‘Not in our Name’? On Responsibility and its Disavowal” forthcoming 2007 Social and Legal Studies.
This reading, incidentally, would be relevant to a justification of the rejection of passivity along the lines discussed by Gardner on pp. 138–140. In his terms, it would matter why the writer went along with or rejected being complicit in the actions of the corrupt or barbarous regime.
A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71.
Leaving aside the separate issues of the extent to which civil liberties may be compromised in order to prevent possible future terrorist attacks, or whether it makes a difference as to whether the torture employed by state or non-state actors.
Acknowledgements
Thanks to Scott Veitch, Tatjana Hörnle and Tom Sorell for comments on the comment
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Farmer, L. Complicity beyond Causality. Criminal Law, Philosophy 1, 151–156 (2007). https://doi.org/10.1007/s11572-006-9013-y
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DOI: https://doi.org/10.1007/s11572-006-9013-y