Abstract
Some argue that if an agent intentionally participates in collective wrongdoing, that agent bears responsibility for contributing actions performed by other members of the agent’s collective. Some of these intention-state theorists distribute co-responsibility to group members by appeal to participatory intentions alone, while others require participants to instantiate additional beliefs or perform additional actions. I argue that prominent intention-state theories of co-responsibility fail to provide a compelling rationale for why participation in collective wrongdoing merits responsibility not only for one’s own actions but the contributing actions of others as well. I propose that authorization agreements provide us with a suitable rationale. Authorization may be expressly given, as when one person signs a document authorizing another to advance her aims. Or, authorization may be tacitly or implicitly given by participating in and sufficiently contributing to a common plan. If a person authorizes an agent to act, it is right to blame the authorizer for what the agent does on the authorizer’s behalf. An authorization theory justifies the distribution of co-responsibility by appeal to the morally transformative power of agreement, thereby providing a compelling rationale for why a person may be to blame for contributing actions performed by other agents.
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Notes
While intention-state theories of distributing co-responsibility tend to dominate the literature, there are other competing theories as well. Sepinwall (2011, pp. 248–260) argues that we ought to distribute co-responsibility to those who are suitable targets of certain reactive attitudes, such as resentment or blame. May (1992; May and Strikwerda 1994) argues that all individuals who negligently cultivate harmful attitudes are in a way co-responsible for hate crimes carried out by community members who share those attitudes. Neither theory makes an intention to participate in wrongdoing a necessary condition for acquiring responsibility for the independent actions of others. Because both theories differ significantly from the intention-state theories covered in this paper, I do not have the space to consider them fairly.
Some philosophers and legal theorists have hinted at the possibility of an authorization or agreement account of co-responsibility; see Feinberg (1970, pp. 226–227), Pasternak (2011, pp. 117–118), Rescher (1998, p. 51) and Kadish (1985, pp. 354–355). Gilbert (2006) argues that what she calls ‘shared responsibility’ is a function of the commitments we make to pursue collective aims. However, Gilbert’s notion of commitment is weaker than the theory of authorization I propose. Gilbert argues that making a commitment to participate in a collective endeavor is not sufficient for acquiring responsibility for any actions performed by others (p. 109), but authorization is sufficient for acquiring moral responsibility for the authorized actions of others, absent any excusing or justifying conditions. May (1987, pp. 55–57) utilizes authorization to explicate collective or corporate action, but adopts a different approach in (1992), distributing co-responsibility to group members by appeal to an agent’s negligent attitudes.
Agreements are ‘morally transformative’ when they alter the permissions, obligations, responsibilities or rights of those who voluntarily enter into them. In the context of consent agreements, Hurd (1996, p. 123) provides some instructive examples: ‘consent turns a trespass into a dinner party; a battery into a handshake; a theft into a gift; an invasion of privacy into an intimate moment; a commercial appropriation of name and likeness into a biography’. In this paper, I argue that authorization agreements are similarly transformative.
Hart and Honoré (1985, p. 65) argue that responsibility for an outcome typically requires that one causes that outcome. Matters become less clear when one ‘causes’ an unfortunate outcome by omitting to act, as theorists disagree about whether omissions have causal efficacy; see Dowe (2001) and McGrath (2005).
Duff (2009, pp. 284–285) argues that excuses exempt one only from liability to be punished, but not from bearing moral responsibility for what one has done. He argues that moral responsibility is strictly applied to those who cause harm, whether or not they cause it intentionally (2006, p. 103). This strikes me as a rather controversial claim, as it entails that Karen is morally responsible for killing her husband, no matter the context. If Karen’s husband were trying to rape and kill her, do we really want to say that she is still morally (and not merely causally) responsible for his death? This seems unfairly harsh to me, but I do not have the space to argue the point in detail.
Unfortunately, philosophers sometimes use the terms ‘collective responsibility’, ‘social responsibility’, ‘shared responsibility’ and ‘corporate responsibility’ interchangeably and sometimes to denote separate concepts; see Gomperz (1939, pp. 331–332), May (1992, pp. 37–38), Mellema (1997, p. 3) and Sverdlik (1986, pp. 62–63).
The idea that some individuals might bear responsibility for the free and intentional actions of others may seem odd at first, but such a principle informs precedents in U.S. law. In civil law, the doctrine of respondeat superior permits aggrieved parties to sue the employers of employees who cause unjustified harm on the job; see Davant (2002, p. 554). In criminal law, doctrines from conspiracy to felony murder hold some individuals liable for the wrongdoing personally carried out by other agents; see Schwartz (1985, p. 857) and Ohlin (2008, p. 147).
The distinction between complicity and co-responsibility roughly tracks the legal division between principal and accomplice liability. The principal to a crime is effectively its author. An accomplice is one who assists a principal in carrying out the crime. A principal might be to blame for murder, while an accomplice would be to blame for aiding and abetting murder. I say ‘roughly’ tracks, because American courts typically charge accomplices with the crimes of their principals (although they usually assess more lenient sentences to accomplices). However, the American doctrine of accomplice liability has been subject to severe criticism, and many other jurisdictions charge accomplices with a lesser crime for aiding or facilitating wrongdoing; see Chiesa (2014, pp. 6–8), Dressler (2008) and Moore (2007).
As two reviewers of Kutz (2000) note, it is sometimes unclear whether Kutz offers a theory of co-responsibility or a theory of what I have called complicity; see Gardner (2004, p. 827) and Gilbert (2002, pp. 181–183). Despite the fact that his book is titled Complicity, I interpret Kutz as offering a theory of co-responsibility, as he insists that victims of collective wrongdoing may blame individual participants for the full outcome of a collectively produced harm, not merely for their personal contributing actions (2000, p. 142); see also Petersson (2013). If Kutz intends to offer only a lesser theory of complicity, as I have defined the word, then he will need to make heavy revisions to his theory.
Kutz uses the term ‘accountability’ instead of ‘responsibility’. By accountability, Kutz means not only what I have termed fault or responsibility, but also liability to repair. In other words, an accountable agent is both to blame for wrongdoing and obligated to repair or address that wrongdoing; see Kutz (2000, pp. 18, 122, 129).
By ‘contribution’ or ‘contributing action’, I mean any action that aims at furthering a collective end. For Kutz, an action that contributes to a collective aim need not make an outcome more likely, as he contends that many collective actions are overdetermined, so that many contributing actions do not end up making a difference (2000, p. 122). To not beg the question against Kutz, I stay agnostic about whether or not a contribution or contributing action must make a difference to be blameworthy.
Kutz formulates his account of co-responsibility primarily in opposition to consequentialist difference-making accounts of responsibility for collective wrongdoing. Parfit (1984, p. 80) argues that even if one’s actions make no discernable difference to a collectively produced harm, one can nevertheless see oneself as a member of a set of individuals who do make a difference. But as Kutz rightly notes, it is not clear that we can draw moral conclusions about personal responsibility from the fact that a person is a member of a set of individuals who collectively cause harm together (2000, p. 131). Kagan (2011) solves this problem by both denying that any harms are imperceptible and positing that agents are to blame for the antecedent probability that their actions would make a difference to a collectively produced harm. Because Kagan assigns responsibility only on account of the personal risks that individuals take when acting, his theory more resembles a theory of complicity than co-responsibility. If it is possible to sufficiently assess blame only by appeal to the antecedent risks that people take, there is no need to hold some to blame for actions carried out by others, and therefore no need for a theory of co-responsibility.
There is still some ambiguity in the literature as to how inclusive or joint responsibility functions. Kutz argues that inclusive responsibility merits a different response than sole personal responsibility for wrongdoing, but also that there is no guiding principle to determine how responses ought to differ (2000, pp. 146, 165; see also Lawson 2013). Presumably, inclusive or joint responsibility is more serious than personal responsibility only for one’s personal contribution to wrongdoing but not as serious as sole personal responsibility for wrongdoing. However, where to draw the line between inclusive or joint responsibility and sole responsibility remains somewhat unclear.
I focus on manifestation instead of representation to avoid wading into discussions about the meaning of representation; see Pitkin (1967). Alternatively, we could also say that my actions express or embody my will.
Pasternak (2013, pp. 365–367) considers authorization as a solution to the problem of distributing liability for collective wrongdoing. However, because she aims to distribute liability for a nation’s wrongdoing to its citizens, she is forced to reject it as a plausible rationale. The problem is that it makes little sense to say that a citizen expressly or tacitly authorizes the state to act on her behalf simply by being a citizen. Stilz (2011) argues that citizens of a state acquire liability to repair the state’s wrongdoing because they necessarily authorize the state to advance their interests on their behalf. The citizens of a state necessarily authorize the state to act on their behalf if the state credibly interprets their rights. Stilz therefore tries to use facts about what citizens would authorize under ideal conditions to distribute liability; for some problems with this approach, see Begby (2012) and Dworkin (1989).
There are two types of authorization agreements: permissive and representative. Sometimes, one authorizes others by transferring or delegating authority to them to advance their own interests. We can call this form of authorization ‘permissive authorization’. Or, one authorizes others with specific instructions to advance one’s own aims. We can call this form of authorization ‘representative authorization’. When I speak of authorization, I mean exclusively representative authorization, as representative authorization is sufficient (absent any justifying or excusing conditions) to make one individual responsible for the authorized actions of another. It is unclear to me whether permissive authorization entails co-responsibility or even complicity for the wrongful actions of others; see Copp (1980, pp. 590–591).
I adapt this definition from Malm’s (1996, pp. 147–148) definition of consent.
Anglo-American law typically makes little moral distinction between directly killing another and intentionally causing that person’s death through another agent; see Hart and Honoré (1985, p. 378).
The concept of a ‘substantial’ contribution is admittedly vague, but it is meant to capture the difference between actions that aim to play a central and integral role in facilitating some collective endeavor from those that aim to play trivial or non-essential roles.
Some will contend that I need to account for examples such as those provided by Cooper (1968, pp. 262–263) where a tennis club is held responsible for its premature closure or French (1972, p. 8) where a football team is responsible for its loss to an inferior opponent. An authorization theory will not help us there, as members of the club or team do not authorize each other to lose the game or fail to keep the club open. But I propose an authorization theory of co-responsibility only to distribute fault to group members for intentional wrongdoing. We utilize a different notion of blame in examples such as the tennis club or football team. In both cases, we blame a collective of individuals for coming up short according to some level of expected performance, not for intentionally committing wrongdoing. In neither case do we utilize the sort of blame which might justify or warrant criminal sanctions. So it is not necessarily a weakness that an authorization account of co-responsibility fails to explain how we distribute blame to team members for losing a football game.
I would like to thank an anonymous referee for raising this objection.
As the title of Mellema’s book indicates, he interprets all nine categories of participatory wrongdoing as forms of complicity; see (2016, p. 3).
Moore (2007) makes a similar argument about the doctrine of accomplice liability.
I would like to thank an anonymous referee for inspiring this objection.
It is possible that an entire voting citizenry might be collectively responsible for jointly authorizing an illegal war. But it is not clear what follows from the fact that one is a member of a set of individuals who collectively authorize an illegal war together.
International courts largely assign criminal liability along these lines. While prosecutor Robert Jackson considered the possibility of charging all SS members with conspiracy to commit murder at the Nuremburg trials, no such charges were assessed; see Darcy (2007, p. 225). Recent International Criminal Court and ad hoc tribunal trials have targeted generals and high-ranking officials, not soldiers or low-level bureaucrats; for a list of criminal defendants tried by the ICC and ICTY, see https://www.icc-cpi.int/ and http://www.icty.org/ respectively.
I thank an anonymous referee for helping me formulate this objection.
As Harris (1992, p. 667) notes, these sorts of tacit agreements often constitute legally binding contracts.
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Acknowledgements
I would like to thank Thomas L. Carson, Joseph Vukov, Richard Kim, Joy Gordon, Heidi Malm and three anonymous referees for their comments on various iterations of this paper.
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Atenasio, D. Co-responsibility for Individualists. Res Publica 25, 511–530 (2019). https://doi.org/10.1007/s11158-018-09409-w
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DOI: https://doi.org/10.1007/s11158-018-09409-w