Chiara Lepora and Robert Goodin. On Complicity and Compromise (2013).
Ch. 5 Responsibility for Complicity A Minimum Threshold
In this chapter we will address fundamental philosophical issues concerning what is required, by way of action and intention, in order to vest someone with moral responsibility.
In the language of the law, ‘actus non facit reum, nisi mens sit rea’: ‘an action does not make a person guilty of his crime unless his mind be also guilty’.
We ought to always be suspicious of lawyers hiding behind Latin. This case is no exception. Although ostensibly ancient, this maxim is actually of early modern coinage. Although apparently clear, the maxim masks its fair share of exceptions and equivocations—even from a legal perspective, and all the more from a moral one (As we have said from the out set in Chapter 1, there is every reason to think that the law does not, and should not, embody all that morally matters.) Nonetheless, this legal maxim does capture something of moral importance. Wrongdoing, whether by doing wrong yourself or by contributing to the wrong done by others, must always involve a certain sort of act together with a certain sort of mental state. The issue that lies at the heart of this chapter is precisely which sort.
Onthe ‘intention’ side (to which lawyers’ mens rea refers) our claim will be that you do not need literally to share the wrongful purposes and intentions of the wrongdoer to be liable for moral blame for being complicit with his wrongdoing. On the ‘action’ side (to which lawyers’ actus reus refers) our claim will be that you need not participate with the wrongdoer in some joint action. Contributing knowingly to his wrongdoing, without in any sense ‘joining him’ in committing it, is in our view enough for you to qualify as morally complicit with that wrongdoing.
How bad it is to be morally complicit in that way is subject to separate assessment (more of which in Chapter6 below). Our claim is purely that that is enough to make you morally responsible for being complicit at all—it is enough to cause you to have morally ‘a case to answer’, even if in the end you are able to give a perfectly adequate moral defence of what you have done.
That is a minimum standard for what is required for you to count as complicit at all. Of course, some types of secondary agents discussed in Chapter3 display much greater jointness in action and sharing of purposes with the principal wrongdoers. People presumptively bear even heavier responsibility when participating in or contributing to wrongdoing in any of those ways. They are the sorts of people with whom the law is concerned, in its treatment of criminal complicity.
As wesaid in Chapter1, however, this book is equally concerned with more reluctant contributors and the ways in which they might be complicit— perhaps forgivably so, but complicit nonetheless—with the wrongdoing of others in weaker ways than that. We do not in any way deny the presump tively heavier moral responsibility borne by people whose contributions to wrongdoing meet higher standards of jointness in action and sharing of intentions and purposes. The focus of this chapter simply lies elsewhere. Our question in this chapter is what, at a bare minimum, is required with respect to action and intentions to potentially qualify one for any measure of moral blame at all for contributing to wrongdoing?
5.1 Minimum Standard of Complicity
As we have argued in Chapter3, there is a fundamental distinction between being complicit with—which is to say, contributing to (and only contributing to)—a certain wrong done by someone else and being yourself a principal or co-principal in committing that wrong. In the terminology of Chapter3, only co-principals can, strictly speaking, be said to ‘participate’ in the wrongdoing. Agents who are complicit do less than that. They contribute to (without participating as a co-principal in) wrongdoings committed by someone else.
This distinction, clear though it seems, is often overlooked in discussions of the moral responsibility attached to complicity. Responsibility for a complicit action is often said, for example, to depend on the agent’s intentional participation in a principal’s wrongdoing; or complicity is said to occur when one contributes to wrongdoing in order for that wrong to be performed and to succeed in its purpose.
Christopher Kutz, for example, talks in terms of a participatory intention as being the defining feature of what it is to take part in (and be complicit in) a joint action. But in seeking an analysis of complicity in a weakened account of group agency, Kutz is led to elide [생략하다] the essential distinction between participatory and contributory actions. Participating is contributing by joining in with others and ‘doing your part’ towards the collective end that they share. But there are various other ways in which one might contribute towards what others are doing, without joining in with them as a co-participant in any way.
If we are looking for what is the minimum condition for your being com plicit with another in his wrongful actions, it is (a) not the intention to share in a joint action with him, still less (b) an intention to pursue a purpose that you share with him. It is in our view something much less, and quite different, in each case: (a’) contributing to his wrongful actions, and doing so (b’) knowing that you contribute to his doing wrong.
The difference between contributing to and participating in someone else’s wrongful action, which is crucial to our analysis and elided in others such as that of Kutz, is obvious as soon as it is stated.
Contributing to another’s project is something you do from the outside, participating in it is something you do from the inside.
The two are clearly different. A Boy Scout comes to my door asking for a donation to his Scout troop’s project; I give him some money. I have‘contributed to’ the Boy Scouts’ project without in any sense joining the Scout troop, participating in it or acting together with it. Or for another example: the UK is at war with Germany, and asks the US to loan it some ships; when loaning the ships, the US can ‘contribute to’ the British war effort without joining in the war or participating ‘together with’ the UK as an ally under a joint command structure.
Obviously, we do not deny that those who participate in—literally ‘join with’ others in—doing a wrong are morally highly liable to blame for that wrong. We only deny that that the very strong standard of joint action exhausts the cases in which people can be morally to blame for what they have done in respect of others’ wrongdoing.
Contributing knowingly to the wrongdoing of others, even without ‘joining together’ with them as a partici pant in committing that wrong, can itself be worthy of moral censure. Thus a contributory action, rather than a participatory one, is what we deem to be minimally required to constitute complicity.
The second question is what exact content does the intention governing that contributory action need to have in order for it to count as complicit and incur [초래하다, 발생시키다] moral responsibility?
Is the meshing of purposes or intentions between principal and contributory agents a necessary condition for complicity or for morally blaming them for complicity?
We think not. Of course, acting on the basis of wrongful purposes or intentions is morally blameworthy, whether or not you share them with someone else. But in determining the minimum that is required to describe someone as complicit, we should be satisfied with something less than that. Within the realm of mens, knowledge of the wrongdoing and knowledge that one’s actions contribute towards the wrongdoing are the only necessary mental elements that are required for one to qualify as complicit.
Suppose a wife is secretly administering psychoactive drugs to her husband to keep him asleep while she cheats on him with her lover. The wife asks a doctor to help by prescribing the drugs, and the doctor does so. What mental state would have to be present in the doctor for him to be morally responsible for complicity with the wife? Were the doctor the wife’s lover, little doubt would surround the status of the doctor’s contribution in wronging the husband (over and above moral responsibility for professional misconduct, of course). But even if the wife’s loverwere astranger to the doctor, prescribing medically unnecessary psychoactive drugs would nonetheless constitute a contribution to the wife’s wrongdoing.
In the latter case the doctor would be blamed for medical misconduct and for unethical research activity as a principal wrongdoer. But the doctor would also incidentally contribute to the wife’s wrongdoing, and act as a complicit agent in administering sleeping drugs to the husband. The intentions of the wife and the doctor are in this case clearly different: the doctor wants to undertake a piece of research, the wife wants to cheat on her husband without him finding out. The contributory intention of the doctor is thus limited to an overlap between means, rather than purposes, with those of the wife.
But stretching the example even further, let’s imagine that the doctor, knowing the wife’s wrongful plan, agrees to contribute to it because of the huge sum of money offered by the wife. In this case the doctor’s purpose has no overlap at all with the wife’s purpose: the doctor would be delighted if the wife lost the prescription on her way home and had to come back and pay for a second one. Yet, supposing the wife could not buy and administer sleeping pills to her husband without the doctor’s contribution, the doctor is clearly complicit in wronging the husband.