Introduction

Let us begin with the story dominating world news at the time of this writing (and which is sure to be a matter of historical memory): the legal investigations into the actions of United States President Donald Trump—before and after his election—related to his dealings with his lawyers, business partners, lovers, and foreign powers.

These questions largely concern the legal regulation of government officials and political candidates. Others are squarely matters of criminal law, including cooperating with a hostile foreign power to interfere in an election and obstructing a lawful investigation. While some of the acts thus far alleged may be matters of strictly individual criminality, most of them involve groups of individuals working together in ways that are prohibited by law. This is the domain of collective action within the criminal law. Within the Anglo-American legal system, which anchors my discussion, the key concepts are those of complicity and conspiracy. Together, these doctrines provide ways of assigning retrospective criminal liability to actors—and hence, prospectively, of deterring potential ones—in cases where the individuals do not themselves attempt or perform all the acts of a given crime, or in which the full scale of the harm resulting from the crime cannot be assigned to any individual.

The need for complicity and conspiracy doctrines arises from the personal and act-centered core of criminal responsibility. In the core model, someone is guilty of a crime when he per­sonally performs a criminal act or produces a socially harmful result (e.g., threatening someone with a weapon), with the intention of performing that act or producing that result. But in many cases of interpersonal action, some of the people don’t perform those acts or produce those results. Instead they suggest or endorse those actions, or help with planning or provide other kinds of logistical support. Morality and a realistic sense of social policy tell us that many of these ancillary acts are wrong and socially dangerous. So the doctrinal problem within criminal law is how to extend legal principles in order to capture at least some of these cases outside the core. The philosophical problem is whether the resulting doctrinal principles cohere with more general conceptions of moral responsibility, legitimate state punishment, and the underlying conceptions of causation and intention that provide the skeletal architecture of criminal law.

In what follows, I offer an opinionated survey of work on that philosophical problem, focusing particularly on the law of accomplice liability. There are, of course, many other ways that theories of collective action impinge upon law, not least in the way that collective action generates law—for instance, through legislation, collegial adjudication, and hierarchical systems of precedent and coordination. And there are interesting philosophical questions about how models of collective action can and should inform other departments of law, including the law of armed conflict, the law of labor and social organization, and family law. I will touch on some of these questions, but the central example will be criminal law. I proceed by first laying out the moral terrain on which criminal doctrine is built, then looking at the difficult questions presented by indirect or superfluous contributions by criminal actors. I briefly discuss some attempts to reconcile the broad sweep of accomplice liability with the causation requirements at the core of much criminal law. And I conclude with a look at other forms of liability for collective action.

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