Chains of Moral Responsibility
Let us now consider whether JMR can generalise to, at least, some central categories of morally significant diachronic institutional action.3 Here I note that while JMR relies on a theory of joint action, some theories ofjoint action are not serviceable in this role.
In particular, theories of joint action, such as Bratman’s (Bratman 2014), that hold that participants in a joint action intend one another’s contributory actions — rather than merely believe that they have performed, are performing or will perform these actions — are not serviceable. The reason for this is that in such diachronic joint actions it is often the case that a later participant is not a participant at the time when some earlier participants made their contributions. (See Miller (1995) on this point.) Consider the construction of the Sydney Harbour Bridge. This complex joint action, indeed layered structure ofjoint actions (Miller 1992 and 2018), was performed over a number of years. Now assume that Jones was involved in building the foundations of the bridge that were laid on the shores on either side of the harbour, but retired and then died before the arch of the bridge was started. Caranti, on the other hand, migrated to Australia from Italy after the foundations were completed, and he was involved in working on the arch of the bridge (but not the foundations). However, Caranti had not even heard of the Sydney Harbour Bridge project before arriving in Australia. Accordingly, he had no intentions with respect to the work of those, including Jones, who worked on the foundations, since they were completed before he arrived in Australia and intentions, unlike beliefs, are necessarily forward-looking; one can have beliefs in the present about the past, but one cannot intend in the present what has already happened in the past.Let us now turn to the application of JMR to morally significant diachronic institutional action.
Consider a team of detectives investigating a major crime. Let us assume that the team is engaging in a joint institutional action, namely, that of determining the identity of the Yorkshire Ripper. So, members of the team gather physical evidence, interview witnesses and, in particular, the main suspect, Peter Sutcliffe. Moreover, they do so having as a collective end to determine the factual guilt or innocence of this and other suspects. At some point the detectives complete this process and provide a brief of evidence to the prosecutors according to which, and based on all the evidence, Sutcliffe is the Yorkshire Ripper. So far so good, but the criminal justice processes do not terminate in the work of the detectives. For there is now the matter of the trial; that is, the determining by the members of a jury of the legal guilt or innocence of Sutcliffe. Let us assume that the members of the jury perform the joint (epistemic) action (Miller 2018) of deliberating on the legal guilt or innocence of Sutcliffe, and jointly reach the verdict of guilty (as in fact happened). The question that now arises concerns the institutional relationship between the joint institutional action of the detectives and the joint institutional action of the members of the jury. It is here that the notion of a chain of institutional responsibility is illuminating (Miller 2014).Let us assume in what follows that the collective end of the criminal justice process comprised of both the investigating detectives and the members of the jury (as well as others, but here I simplify), is that the factually guilty be found legally guilty (and the factually innocent not be found legally guilty). Note that from the perspective of this larger institutional process the collective end of the detectives (that of determining the factual guilt or innocence of a suspect) is merely proximate whereas that of the members of the jury is ultimate. (It is, of course, only penultimate from the perspective of the criminal justice system more broadly conceived, given the need for sentencing and incarceration.)
Moreover, in all this there is an institutional division of labour and segregation of roles which involves each type of institutional actor, e.g.
investigator, prosecutor, judge, jury etc. making a contribution to the further (collective) end of identifying and appropriately punishing the guilty and exonerating the innocent. However, unlike many institutional arrangements, the criminal justice process is predicated on strict adherence on the part of institutional actors to the segregation of roles on pain of compromising this further end. I emphasise that this segregation of roles is consistent with all of these actors, each with their own different and segregated role, having a common further aim; agents can have a common aim and yet it be a requirement that each is to make a different and distinct contribution to that aim, and not perform the tasks assigned to the others, and do all this in the service of that common aim.In respect of this segregation of roles, the relationship between the institutional actors, including investigators, in the criminal justice process is unlike that which holds between (say) a manager, a waiter and a barman in a small pub. There is no reason why, for example, the manager and the waiter might not assist the barman in doing his job of pouring beers during a rush period or even stand in his place when he is called away. But there is good reason why the prosecutor should not also be the judge or the investigator the jury; in an adversarial system any such conflation of roles would constitute a structural conflict of interest and, as such, would be likely to undermine the administration ofjustice.
Institutional arrangements, such as this, in which there is a segregation of roles (and associated responsibilities) but, nevertheless, a common further end involve a chain of institutional responsibility. In chains of institutional responsibility all the participants aim (or should be aiming) at the further end in addition to undertaking their own roles (and, therefore, aiming at the end definitive of their own particular role). (Naturally, there are institutional arrangements consisting of role structures in which this is not the case; these do not consist of chains of institutional responsibility in my sense.) Moreover, all the participants (at least, in principle) share in the collective responsibility for achieving that further end (or for failing to do so).
Let us work with our example of Peter Sutcliffe, the Yorkshire Ripper, who was ultimately convicted of 13 counts of murder (the victims being prostitutes working in Yorkshire in the UK).The detectives involved were (collectively in the sense ofjointly) institutionally responsible for gathering and analysing the evidence that identified Peter Sutcliffe as the Yorkshire Ripper; they acquired the required knowledge of Sutcliffe’s factual guilt and, thereby, realised the collective end of their institutional role as detectives. On the other hand, members of the court and, in particular, the members of the jury were (collectively) institutionally responsible for finding Sutcliffe legally guilty and, thereby, realised the (collective) end of their institutional roles as jury members. So far so good, but what was the ultimate end that was realised by the detectives and the members of the jury (as well as the other actors involved in the institutional process, e.g. the judge)?
Presumably the end in question is for the factually guilty to be found legally guilty (and the factually innocent not to be found legally guilty) and this is an end (a collective end) that is realised by the detectives working jointly with the members of the jury (and the other relevant institutional actors). It is not an end that the detectives could achieve on their own; they can only arrive at knowledge of factual guilt. But equally it is not an end that the members of the jury could realise on their own; for they rely on the knowledge provided by the detectives. (Chains of institutional and moral responsibility consist of a process in which the completion of one stage institutionally triggers the commencement of the next stage, e.g. arrest is followed either by the suspect being charged or released within a specified time-frame.) Moreover, it is a morally significant end. Accordingly, other things being equal, the members of the detective team and the members of the jury are collectively (i.e. jointly) morally responsible for the realisation of this end (the factually guilty being found legally guilty and the factually innocent not being found legally guilty).
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