Other Dimensions of Collective Action and Liability
I began this chapter with the example of the criminal investigations surrounding President Donald Trump, and the suspicions that he and his campaign “colluded” with Russian state actors to gain an advantage in the election.
As Trump’s defenders have frequently commented, there is no crime of “collusion” to be found in the criminal statutes. Treating him as an accomplice would also seem a poor fit for criminal liability. Take, for example, what has been cited by the U.S. Department ofJustice as a successful effort by Russian intelligence to hack into U.S. Democratic Party email servers, and then to release the hacked emails for general distribution through Wikileaks.22 That act itself involved principal, direct actors (the hackers who typed the relevant commands), as well as many secondary parties—the Russian intelligence and political actors who ordered them to do so. Julian Assange and other staff at Wikileaks could be arguably treated as accessories-after-the-fact, like those who fence stolen goods for thieves, and so also derivatively responsible.23It is of course possible that Trump or his campaign associates aided or encouraged this hacking and release of the emails in advance, in which case their liability as accomplices would be straightforward. But what is likelier—even as a matter of fiction, if we wish to treat the example this way—is a more complicated relation to the Russian efforts, whereby there was an understanding between members of the campaign and members of the Russian state that the Russians would work to support Trump (primarily by undermining his opponent), in exchange for efforts to create more favorable policies towards Russia. Such an understanding would be morally and politically corrupt, inasmuch as it trades covert foreign interference in a democratic process for policy outcomes—this is the basis of opprobrium attached to the idea of “collusion.” But it would still be hard to link the U.S.
actors as accomplices, if they did not know what specific acts the Russians planned to do.“Conspiracy” is criminal law’s solution to the problem of how to extend liability to individuals who act in concert with others to achieve criminal ends, but without necessarily making distinctive causal contributions to those crimes, or knowing much at all about the other actors and their plans. Typically, all that is required for conspiracy liability, in Anglo-American and civil law, is for two or more people to agree to participate in the commission of crime.24 The punishment for a conspirator can be greater than that for the crime that is planned, and will apply even if the conspiracy never gets past the planning stages. Individuals are routinely found liable for conspiracies when they are part of a loose network of individual nodes, with little or no sense of the full set of other conspirators. Moreover, under U.S. federal law, many state laws, and in international criminal law, members of a conspiracy whose crimes are realized will be treated as though they were in fact accomplices in each of the crimes that was committed—even if they lack the specific intention and knowledge that is otherwise required for accomplice liability.
The great breadth and flexibility of conspiracy law makes it an extremely useful tool for state authorities, who can bring cases against individuals for participating in the planning of crime (on the basis of evidence of discussions, say), despite the lack of any more specific evidence of their role in the crimes. Such breadth is said to be essential for prosecuting, and so deterring, organized crime.25 There are many questions philosophers might ask about the moral and political principles supporting or limiting legitimacy of such broad liability (even if in particular cases, liability seems wholly appropriate). Among other issues, conspiracy liability can seem to interfere with the proper liberty of political or labor discussion, and indeed there is a long history of state use of conspiracy law to repress labor and political activity.
But there are also questions that are best answered from within the theory of collective action. Among these questions are: what constitutes an “agreement” when details remain to be filled in, most plans are yet to be laid, and individual participants may have highly conflictual understandings of their joint aim?Because conspiracy liability is, essentially, liability for a collective mental object—an agreement—it therefore requires a theory of collective intentionality. And so philosophy has an invitation to step into the breach. The issues around conspiracy are quite similar to those surrounding topics in contract law, as well as statutory interpretation, albeit the latter topics require and receive much more fine-grained treatment. Take the example of the individual who served on occasion as the driver for Osama bin Laden: could he be regarded as a coconspirator in bin Laden’s larger plans? This is a threshold existence question that asks whether the individual’s conception of his role meshes with other participants’ understandings: did he think of this as a single drive, a drive to enable a specific terrorist operation, or a standing role in a terroristic organization? Answering that question is not necessarily easy, but once it is answered, liability follows.26 By contrast, in a case of contract or statutory interpretation, courts need to determine not usually whether there was an agreement, but the specific content of the agreement as all sides understood it. This is a much more difficult matter, and frequently requires assessment not just of a collective intention among the parties, but how inherently ambiguous or unforeseen circumstances should be handled.
There has been some philosophical work on this question, specifically in relation to conspiracy. I have argued that the idea of a “participatory intention” can play a help role: participatory intentions are individual intentions to orient one’s own activity around a shared goal.27 Individuals will have, perforce, very different subjective conceptions of shared goals, given different levels of knowledge and motivation.
What criminal law requires, making sense of a conspiratorial agreement, is an objective conception of the least extensive state of affairs that jointly would satisfy individual participant attitudes. If you believe I am driving you to the bank to commit a robbery, while I only believe I am driving you into midtown, the overlap in our participatory intentions (to ride together) includes only the ride, not the bank robbery. By contrast, if you believe I am driving you in order to help you rob the bank as part of our plan to dismantle capitalism, while I understand myself only as enabling the bank robbery, then our joint intention is now to rob the bank, but not dismantling capitalism. If this is a jurisdiction that treats conspirators as consequently also accomplices to further crimes, then having the right philosophical conception of collective intentions can have dramatic consequences.While I have focused thus far on criminal liability and collective action, I will note the closely related topic of civil liability. In the private law in both Anglo-American and European countries, liability for harms brought about by collective action is shared among partners, industrial colluders, and assigned to employers—but largely excluded from shareholders, unless their ownership of the harm-doing company is itself fraudulent. The default proposition, that partners in a joint business enterprise bear individual liability for the harms realized by the whole, largely expresses rock-bottom moral common sense. But some of the specific rules of liability are more questionable, such as the general rule that each partner may be personally liable for the whole of the harm, do not track this moral sense (this is called “joint and several” liability). Such rules of collective liability are justified on the grounds that it is unfair, within an adversarial legal system, to make the victim sue each partner to recover fully; partners can, after paying off the victim, recover from each other.
But this represents at best a way of working within a liability system that itself lacks much normative justification, given the extraordinary ratio of litigation costs to recovery by victims. A wholesale philosophical rethinking of liability in these cases is due.More problematic yet is the strong default rule that shareholders, even in privately held corporations, bear no liability beyond the value of their shares for harms done by their company. Take, as examples, shareholders in an oil company that fails to adhere to safety and environmental standards, and so causes an environmental catastrophe; or private equity majority owners of an arms manufacturer, whose weapons are easily modified for maximum lethality and are used in a gun massacre. The companies in these cases would be liable, to be sure (barring special protective legislation, that is). If they are cleverly structured, they will not have enough assets to cover the full potential costs of their harms, and their shareholders can walk away. The justification for such a policy is the instrumental need for companies to be able to raise significant amounts of capital investment; minimizing the financial risk to shareholders induces them to invest more. But this seems patently inadequate as a normative defense of limited shareholder liability, because it permits an extraordinary asymmetry: there is no upside limit on the profits shareholders can reap from a firm, but there is a firm limit on their downside liability—a limit purchased at the expense of potential accident victims.
I have argued in prior work for the importance of bringing a philosophical challenge to this aspect of law’s treatment of collective action, but philosophy has not rushed in to fill the gap.28 There is significant philosophical work on the morally and legally unproblematic, if ontologically mysterious, question whether corporate entities as a whole can be held liable for accidental or deliberate harms.29 Whether or not one treats corporate personality as a legal fiction or moral truth, the coordinated activities of the managers and employees make corporations an apt and responsive target for civil liability and even criminal penalties. But the limitation of liability on their capital investors greatly restricts the constraining force of legal norms.
Given the dramatic potential and actual harms facing the earth that arise from joint economic and social activity, much of it through deliberate state and corporate decisions, the field of civil liability and state responsibility present much the most urgent matters. I hope that philosophy will follow.30 This is a matter of understanding the promises and limits of law as a way of engaging us in the most urgent collective action problem of all: restraining our joint carbon emissions so as to prevent our planet from burning to a crisp.Notes
1 While criminal law has pockets of so-called “strict liability”—criminal responsibility for harmful or risky outcomes even if the criminal actor was not even careless in producing the outcome, such as the liability of a business owner for selling mislabeled pharmaceuticals—these are seen as morally dubious, and best limited to certain kinds of regulatory concerns.
2 Parfit (1986), ch. 3.
3 These positions are associated with, among others, David Lewis, J.L. Mackie, and Richard Wright. For a very useful summary, see Michael Moore (2011).
4 The quoted phrase is mine, approximating Hart and Honore (1959); see also Honore and Gardner (2010).
5 “NESS” stands for “Necessary Element of a Set of jointly Sufficient” conditions. The idea was first articulated by Hart and Honore, then named, refined and elaborated by Wright (1985), especially pp.1788-98.
6 See, e.g., Gilbert (1996); Lawford-Smith (2016); Kutz (2000); Miller (2006); Nefsky (2011).
7 Bratman (2014).
8 Material from this section is drawn and revised from my contribution to Deigh and Dolinko, Oxford Handbook of Philosophy of Criminal Law (Kutz 2011).
9 Director of Public Prosecutions for Northern Ireland v. Maxwell [1978], 1 WL.R. 1350.
10 See Bratman, “Shared Cooperative Activity,” in Shared Agency, for the distinction between coordinated and fully cooperative activity, where the latter involves complex sharing of goals.
11 See Kutz (2007); Gardner (2009), ch. 3.
12 Take, for example, the case of a spectator at an illegal fight who, among thousands, shouts encouragement at the fighters (who would be fighting whether or not there was any shouting). Criminal law could properly treat him as an accomplice to the fight, but I think there is no plausible account of causality, including the NESS test, which would treat the shouts as actual causal contributors. See JVilcox v. Jeffery, 1 All E.R. 464 (1951).
13 See Moore (2007). There are a few other doctrines that can sweep up some remaining difficult cases, for example forms of vicarious liability imposed because of a relationship between parties (such as an employer for an employee), where liability is thought important for deterrence and other incentive effects.
14 For these and other doubts, see Duff (2007).
15 Strafsgesetzbuch Secs. 27, 49(1).
16 This is the language of Judge Learned Hand in United States v. Peoni, 100 F.2d. 401 (2nd Cir. 1938).
17 Imagine a world (as in Oregon) where gas station attendants exist.
18 See, for a general discussion, Lepora and Goodin (2013), ch. 4.
19 Bratman (1987) ch. 10; Duff (1990).
20 Scanlon (2010), ch. 1.
21 Bazargan-Forward (2013); Seth Lazar (2016).
22 Grand Jury for the District of Columbia, “US Indictment of 12 Russian Intelligence Officers” (July 13, 2018), located at https://assets.documentcloud.org/documents/4598947/DOJ-indictment-of-12- Russian-intelligence.pdf
23 Although accessories after the fact did not necessarily aid or encourage the crime (they may have arrived on the scene later), their liability is justified on the two-fold crime that expectations of their later assistance make the crime likelier to happen; and their knowing profit from an unambiguously criminal prior act makes them morally culpable. It is a form of what I call “causeless complicity.”
24 Typical of conspiracy statutes is the catch-all U.S. statute, 18 US Code §371: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”
25 For a discussion of the policy issues, and a defense of its importance to combat the special nature of collective criminality, see Katyal (2003).
26 In the case I allude to, concerning Salim Hamdan, Hamdan was actually acquitted of conspiracy charges, on the argument that he did not understand himself to be playing a role in the larger criminal enterprise, and so lacked the requisite criminal intent.
27 See my ch. 3, in Kutz (2000), as well as Ohlin (2008). The topic of collective intentionality, writ more broadly, has of course attracted much more attention. Most relevant to these questions is the theory of law developed by Scott Shapiro. Shapiro (2011) argues that law is best understood, in Bratmanian terms, as a form of joint planning, and that this conception entails specific consequences for a theory of legal interpretation. Work by Gilbert (2000); Pettit (2001); and Tollefson (2015) is also very valuable for these topics.
28 See my Complicity, ch. 7.
29 See, among others, the works of French et al. (1992) and Pettit (2007).
30 Some of these inquiries are initiated by the authors, including me, in Aust (2011).
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