Holding States Responsible
Article 1 of the ILCC Articles on State Responsibility clearly states that ‘every international wrongful act of the State entails the international responsibility of that State’ (Crawford 2007: 77).
Public international law is also clear that this responsibility is corporate — it attaches to the state itself — a complex system of legal and political institutions that are coordinated under a single decision-making process — rather than to specific individuals within it (see discussion in Crawford 2007: 28—36).But although the idea of state responsibility is common in legal practice, several philosophers remain uncomfortable with that idea (Hindriks 2014). Normative individualism, the view that what fundamentally matters, morally speaking, are individual humans (and perhaps other sentient beings) might seem in tension with the claim that states are in themselves actors that are morally responsible for their actions. After all, the objection goes, states lack the relevant attributes to be moral agents: as corporate agents they are not real persons, they have no minds of their own and do not engage in moral reasoning.
Therefore, it would be nonsensical to blame them for their wrongdoings. Furthermore, at least on some views of punishment, which see it as a form of moral dialogue with a perpetrator, it would also make little sense to punish states, given their lack of dialogical capacities.2 Perhaps there are pragmatic reasons to treat states as fictional, legal persons, and to assign them some forward-looking compensatory duties, but ultimately, moral responsibility for state policies lies with the individuals who play their role within the state apparatus (Fabre 2016).
However, recent voices in the burgeoning literature on corporate agency challenge these assertions. These views hold that groups can be moral agents in their own right, and morally responsible for what they have done, over and above their members.
One highly influential account of corporate moral responsibility has been offered by Christian List and Phillip Pettit (2011). They focus on structured groups with central decision-making procedures and enforcement mechanisms. As List and Pettit show, such groups cannot rely on a simple majoritarian decision-making process, as it is likely to lead to conflicting beliefs and goals at the group level. In order to maintain rationality over time, such groups must adopt a decision-making procedure that ‘collectivizes reason’: i.e. it collects members’ beliefs and desires on various separate premises, and then aggregates them on the basis of a logical combination. When groups adopt this type of decision-making process (and they often do), their beliefs and goals become ‘functionally independent’ from those of their members, and the group can end up ‘having beliefs’ or desires that are distinct from what some or even all group members believe and desire. As List and Pettit conclude, such groups have a ‘mind of their own’, which supervenes upon, but is functionally independent of, the minds of their individual members (65—72). Given that such groups have a mind of their own, they can qualify as moral agents, who understand and respond to moral reasoning. As List and Pettit conclude, a corporate entity of this type is the appropriate subject of moral evaluation, and ‘has to answer as a whole for what it does at the corporate level, drawing on the resources provided by its members’ (163).List and Pettit’s influential account of corporate moral agency has been used to show that states too are moral agents (Tanguay-Renaud 2013; cf. Erskine 2001): they are unified organizational actors, which set and follow laws and principles, and which have stable decisionmaking processes and binding authority structures that ensure organizational autonomy and rational consistency over time (e.g. constitutions, defined role responsibilities and internal accountability mechanisms).
Their decision-making processes ‘collectivize reason’ in the way List and Pettit suggest and therefore they can meet the requirements of moral agency. As such they can be morally responsible when they act wrongly (e.g. declare an unjust war) or negligently (e.g. fail to prevent a culture of implicit racism). If we accept this view, it follows that states are not just responsible in a thin, legal sense. Rather, they are the appropriate subjects of reactive attitudes like anger and resentment, directed at the state itself, as the agent that plans and orchestrates the actions of its members. This idea gives further grounding to current legal practices, and also suggests they can be taken a step further. Currently, international law does not recognize states as criminal wrongdoers, and does not subject them to criminal punishment. But if states are moral agents, then there may be good reasons to expand criminal international law so that it applies to them as well (whether this is a change that is feasible, given the structure of international relations, is a separate question) (see Tanguay-Renaud 2013; Wringe 2016:154-177).List and Pettit developed an influential framework for thinking about corporate moral agency in general and that of states in particular. However, as some commentators have noted, their novel conception of corporate moral agency also opens up a host of questions about the moral status of corporate agents and their place in our moral universe. For example, should corporate moral agents follow the same normative standards we deploy for individual agents, or might they have their own special morality? And if states are indeed moral agents, over and above their members, does it also follow that they have moral rights which deserve protections in and of themselves? These important questions require further exploration in existing literature.
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