Lepora and Goodin (2013) On Complicity and Compromise (3)

Chiara Lepora and Robert Goodin. On Complicity and Compromise (2013)

Complicity and its Conceptual Cousins

Among the distinct practices that we separate out for special attention are ‘connivance’, ‘contiguity’, ‘collusion’, ‘collaboration’, ‘condoning’, ‘consorting’ ‘conspiring’ and ‘full joint wrongdoing’. After having separated out all of those conceptual cousins, we will be left with a slightly more restricted sense of ‘complicity simpliciter’. That will remain something of a mixed category, with genuine moral variability among its instances. Nonetheless, separating out all these cognate phenomena will have served two purposes. First, it will have isolated those other much more circumscribed terms that admit of more unequivocal moral assessment. Second, in the process of distinguishing those other terms, we will have highlighted dimensions along which the inevitable variation remaining within the broad category of ‘complicity simpliciter’ ought to be assessed.

3.1 Definitional Preliminaries

the Latin prefix ‘cum’ (‘together with’)

They all apply to things (actions, projects, plans) that one does together with someone else.

The terms differ in the kinds and degrees of one person’s engagement with or contribution to another person’s plans and actions. The terms also differ, crucially, in the kinds and extents of ‘togetherness’ involved. In many cases, that ‘togetherness’ involves ‘acting jointly with’, far in excess of the ‘contributing to’ that we take to be characteristic of core cases of complicity.

the ‘principal wrongdoing’ is the wrong committed by the agent(s) whom we call the ‘principal’ (or ‘co-principals’, in case the wrong was committed by a group of principals).

We use the term ‘secondary agents’ to refer to all types of accessories, accomplices, and other contributory agents whose actions do not constitute the principal wrongdoing but are part of a causal chain leading to it and even to agents whose actions appear related although, at a closer analysis, make no causal contribution to it.

① ‘jointly constitutive wrongs’: actions performed by co-principals

The actions of the ‘principal’ or ‘co-principals’ are constitutive, wholly or partially, of the principal wrongdoing. That is to say, they are part and parcel of the principal wrongdoing that is constituted by the combination of actions performed byall co-principals.

② ‘contributory acts’: The actions of people who are acting alongside the principals and co-principals in any subsidiary way that provides more indirect (i.e., causal but not constitutive) support 

Theactions of the principals and co-principals are constitutive of the wrong being done (they commit the wrong themselves). Contributory acts differ from that. Instead of constituting the wrong, contributory acts contribute (or might have contributed) in a causal way to that wrong’s being done by someone else.

When we talk of an agent ‘adopting’ (or as we shall sometimes say ‘embracing’) a plan, we shall mean that the agent ‘intends to do what he can to make it succeed’. When we talk of an agent ‘accepting’ (or as we sometimes say ‘complying with’) a plan, we shall mean that the agent ‘acts on it as required, without necessarily approving of it or wishing it to succeed’

People are not necessarily morally blameworthy for all outcomes to which they contributed causally. A classic case to the contrary would be the mayor who cuts the ribbon, intending to open the new shopping mall but acciden tally cutting the tripwire on a bomb a terrorist had planted there: she is not to blame for the ensuing deaths, even though her cutting the ribbon has indeed caused them.

3.2 A Cluster of Concepts

1. FULL JOINT WRONGDOING

We coin the term ‘full joint wrongdoing’ to describe the limiting case of complete jointness in wrongdoing. This is the case in which two or more agents contribute deliberately, through their identical individual actions, to the pursuit of a plan of wrongdoing that each of them has also played an identical role in designing and adopting.

What is peculiar to a case of full joint wrongdoing is that it stipulatively involves every joint wrongdoer doing exactly the same thing as every other. Each person engagedin full joint wrongdoing is fully and equally accountable for the wrongdoing, because they all jointly conceive, adopt, and implement the plan of wrongdoing. Furthermore, per our definition of full joint wrong doing, they act in identical ways in so doing.When the making, adopting, and implementing of a plan is fully joint among all the wrongdoers in this way, each takes ‘full ownership’ of the plan. Partnerships, at law, are treated ‘as if’ all of this were the case.

Full joint wrongdoing is, as we say, a fictitious case representing the extreme form of joint wrongdoing. No real case corresponds to it fully. Nonetheless, real-world cases of joint wrongdoing might to a greater or lesser extent display some features akin to ‘full joint wrongdoing’. During a bank robbery, for instance, when the robbers all point their guns at the tellers and customers, that might constitute a moment of ‘full joint wrongdoing’, although much else that is done over the course of the robbery differs from one robber to the next, and thus counts instead as ‘co-operation’ (as defined below)

2. CONSPIRACY

A ‘conspiracy’ is defined as an ‘agreement, a private accord between two or more co-principals to do something wrong’. They are co-principals, in that the wrong of conspiracy is constituted by the deliberate aligning of their individual intentions with one another’s. Note, however, that it is agreeing to dowrong(rather than the further wrongdoing itself) that is the essence of a conspiracy.

Etymologically, ‘conspire’ combines the root ‘cum’ (‘with’) with the verb ‘spirare’, meaning ‘to breathe’. The latter verb is used as a metaphor for thoughts, agreements, and more broadly for the joint willingness that may ‘breathe life into’ a common plan. Regardless of how insignificant a single breath would be, it is the communion of the various co-planners ‘breathing together’ that vivifies the plan.

Strictly speaking, a group of people who first plan a certain wrongdoing together and then implement that plan ‘conspire’ only in the planning phase; they are ‘co-operators’ or ‘collaborators’ or ‘colluders’ (in the senses we shall describe below) when they act upon the plan.

While conspirators must necessarily all plan together, the plan that they concoct may require that they each perform different and separate actions in pursuit of the plan.

It is the joint planning, explicit among the conspirators but hidden (or attempted to be hidden) from anyone else, that makes a conspiracy...A conspiracy is constituted purely by the act of planning (or even just planning to plan) itself.

3. CO-OPERATION

The term ‘co-operation’ combines the prefix ‘cum’ with the verb ‘operare’, ‘to operate’ or ‘to ensure the functioning’. Agents who co-operate with one another are all co-principals who all share the same plan and all share in its execution (albeit in different ways).

Co-operation in wrongdoing implies the existence of a plan that is shared among the co-principals. The co-operators might or might not have actually formulated the plan together with one another. Regardless of how the plan came about, co-operators at the very least all adopt the plan as their own and orient their behaviour around it

Within the realm of action, co-operators are co-principals whose actions taken together constitute the principal wrongdoing. In the case of full joint wrongdoing, we stipulated that the actions to be performed are identical among the all co-principals involved. In the case of people co-operating in wrongdoing, in contrast, the actions to be performed by different people can be altogether different from one another, just as long as they are (and it is commonknowledge amongco-operators that they are) part of the same plan, and just so long as taken together they are constitutive of the principal wrongdoing.19 They are co-operating equally, and are morally equally culp able for that fact, even if they are acting differently in pursuit of their plan of co-operation.

4. COLLUSION

‘Collusion’ derives from the verb ‘to play’ (‘ludere’). To collude is, according to the Oxford English Dictionary, ‘To act in secret concert with,...in order to trick or baffle some third person or party; to play into one another’s hands;...to play false’. Paradigm cases of collusion include money laundering, price fixing, and match rigging.

‘Collusion’ is co-operation of a particular kind—secret, implicit rather than explicit, aiming to trick others to the mutual benefit of each colluder. Although just a subset of that other category, those features that mark it off as a distinct subset may themselves be of independent moral interest.

Of course many of the constituent acts are public: the contestant colluding in ‘fixing’ a boxing match visibly drops to the mat (as if knocked out), those colluding to launder money visibly exchange goods and money (as if it were an ordinary commercial transaction). What is crucially kept secret, in cases of collusion, is that those acts form part of a joint plan.

Colluders are co-principals in the attempt to wrongly trick some third party in ways intended to work to the colluders’ own mutual benefit. Among conspirators and co-operators the focus is on the wrong itself, planning and/ or committing it together. Among colluders the focus is on the mutual bene f its; the wrongs that colluders commit by tricking third parties are seen merely as a means to those benefits.

5. COMPLICITY SIMPLICITER

Complicity is broadly defined as being implicated in another’s wrongdoing. The root ‘cum’ is followed in this case by the verb ‘plico’, meaning not only ‘to enwrap’ (to complicate) but also ‘to magnify it’. The term thus characterizes contributory action that is ‘wrapped up’ in another’s principal wrongdoing...That term will be used to refer to any ‘contributory agent’ who does not fall into any of those other more precise categories discussed elsewhere in this chapter.

Specifically excluded from this restrictive analysis of ‘complicity simpliciter’ are all cases involving co-principalship (‘full joint wrongdoing’, ‘co operation’, ‘conspiracy’, or ‘collusion’). A co-principal’s acts are (taken together with those of other co-principals) themselves constitutive of the principal wrongdoing. Those who are complicit simpliciter ‘contribute to another’s wrongdoing’—as distinct from ‘doing wrong together’, which is what happens in cases involving co-principals. The secondary acts of agents who are complicit simpliciter contribute causally (or could have been expected to contribute causally) to the implementation of the principal wrongdoing. But they do not in any way ‘constitute’ the principal wrongdoing.

those who are complicit simpliciter often perform contributory acts that ‘give access’ to the principal wrongdoing, facilitating it or perhaps even making it possible. Their contributions, although only ever causal (at most), may be more or less essential to the implementation of the principal wrongdoing. Or they might induce or incentivize the wrongdoing (a thief would not have stolen the painting if there had not been anyone prepared to serve as the ‘fence’ in selling it) or encourage it (a demagogic politician ranting against the excesses of banks encourages people to rob them) or make it easier to perform (selling robbers a precision drill, knowing the use they intend for it, halves the time it takes them to crack the safe). Temporally, acts of complicity simpliciter can come before, during, or after the principal wrongdoing.

In order to qualify as complicit simpliciter, all that is necessary is that the complicit agent ‘knows, or should have known, that by [so acting] he or she will advance whatever intentions the principal has’.

6. COMPLICITY BY COLLABORATION

Collaboration is a subtype of complicity, specifically characterized by some salient form of ‘distance’ or ‘difference’ between collaborators and those with whom they are collaborating. Pétain was collaborating with the enemy, the archetypical Other. In collaborating together on Broadway musicals, Lerner wrote the words and Loewe the music. In scientific collaborations, different collaborators typically have different skill sets, data, or disciplinary perspec tives to offer.

The relationship between the collaborator and the principal is purely that of follower to leader, in regard to the plan. The collaborator takes instructions from the plan and adjusts his own actions to it. Collaboration involves the active and practical engagement of a contributory agent with a plan that in some way he accepts and acts upon. But while accepting the plan as a basis for his actions, he need not actually adopt the plan as his own. The collaborator’s stance toward the plan might be far more equivocal than that. Like Captain Renault in the film Casablanca, a collaborator may simply conform to the plan pragmatically and provisionally.

7. OTHER FORMS OF COMPLICITY

There are four more conceptual cousins—’connivance’, ‘condoning’, ‘consorting’, and ‘contiguity’—that, in their most typical manifestations, can make no causal contribution to the principal wrongdoing whatsoever. Thus we discuss such secondary acts under the following heading of ‘acts involving non contributors’.

<Acts Involving Non-contributors>

Complicity necessarily involves acting in a way that could contribute causally to the principal wrongdoing of another. In the case of four of the ‘cousins’— conniving, condoning, consorting, or contiguity—that is not ordinarily the case.

8. CONNIVANCE

The action performed by the conniving agentis described by the verb ‘nivere’, meaning ‘to wink at, to nod with the eyes, to twinkle the eyelids, to shut the eyes’. Its meaning thus ranges from ignoring another’s wrongdoing (shutting one’s eyes to it) to tacitly assenting to it (winking, nodding, twinkling). In the words of the Oxford English Dictionary, connivance amounts to: ‘overlooking or ignoring (an offence, fault, etc.), often implying secret sympathy or approval; tacit permission or sanction; encouragement by forbearing to condemn’.

Connivers take no part in making the plan. Neither do they necessarily adopt it themselves nor perhaps even know any of its details. (This is how connivancediffers fromco-operation or collusion.) They merelystand aside to allow others to act on it.

Connivance of a form that cannot possibly make any causal contribution to the wrongdoing of others simply cannot be said to amount to complicity, given that the latter is essentially a contributory notion.

Connivance amounts to ‘doing nothing’, and ‘omissions’ can never count as causes of anything. If that were correct, then connivance could never be a causal contribution, or hence complicity defined as a contributory act.

Notice that all the ways of characterizing conniving in the definition quoted above—nodding, winking, shutting the eyes—involve active verbs.

Neither is it true that omissions cannot count as causes. In the simplest and most intuitive ‘but-for’ test of causation, what is crucial is the counterfactual. What is crucial in making something a causal contribution is the fact that had you done something else, the wrongdoing would not have occurred. If there was something you could have done to stop it and you didn’t, your inaction can properly be counted as a part of the causal chain that allowed the event to occur.

A classic example, outside the realm of complicity, is that of a lifeguard who is under a duty to watch over kids in the swimming pool. She would be deemed responsible for contributing causally to a child’s death if she did not jump into the water to save the child when she saw he was drowning.

 

9. CONDONING

When principals perform wrongful actions, secondary agents who ‘condone’ their actions relate to those wrongs by pardoning them. Thus, when the International Monetary Fund is accused of condoning defaults on repayments of sovereign debt, the accusation is that it is in effect forgiving those defaults and may be inducing other debt defaults in the future.

The etymology helps differentiate condoning from conniving. Combined with the root ‘cum’ (‘together with’), the verb ‘donare’ is translated as ‘to donate, to bestow, to give’. It is thus a conspicuously active verb, which implies a transfer of something owned by the agent to the principal. In the first instance the condoning agent gives the wrongdoing his attention, and in the end he gives it his pardon.What in ‘connivance’ is accepted obliquely is in ‘condoning’ the object of direct acknowledgment and explicit pardon.

In the case of an isolated, one-off, wrong, condoning cannot contribute causally to that principal wrongdoing. The reason is simple: condoning by its nature occurs retrospectively; until a wrong has occurred, there is nothing yet to be pardoned. Time’s arrow points resolutely forward. There can be no backward causation, no causation of earlier things by those that happen later.

Even though you can’t literally ‘condone’ a wrong a head of it occurring, you can announce a head of time that you will condone it were it to occur; and that announcement (while itself not literally an act of condoning) can certainly contribute causally to the act-to-be-condoned occurring. ‘Announcing you will condone’ is not exactly the same as ‘condoning’, to be sure. Still, it is something pretty close to it.

 

10. CONSORTING

But there seems to be something bad about ‘consorting’ itself, quite apart from any further bad to which it might lead. The Oxford English Dictionary says that ‘to consort’ with someone is ‘to accompany, keep company with’ or ‘to escort’. Something beyond physical co-location is implied by the term, however. When talking of ‘the queen’s consort’, there is an implication of intimacy. When talking musically, a consort refers to ‘a harmonious combination of voices or instruments’. Across all of its applications, ‘consort’ implies ‘accord, agreement, concurrence’. Acting ‘in consort’ with someone is acting ‘in concert’ or, indeed, ‘in partnership’.

In a somewhat weaker sense, consorting might sometimes make a causal contribution to the principal wrongdoing. That might happen when consort ing with the wrongdoers, signals one’s agreement with and approval of their actions; and that encourages them in their wrongdoings. When consorting makes a causal contribution of that sort to the principal wrongdoing, we will call it a case of ‘complicity by consorting’ on the part of the secondary agents involved.

 

11. CONTIGUITY

Whereas ‘consorting’ implies agreement of some strong sort with the principal wrongdoer, sheer ‘contiguity’ implies nothing more than physical proximity. Literally and etymologically, it refers to ‘the condition of touching or being in contact’ (‘cum’ + ‘tangere’ = ‘touch together’). Used more loosely, it refers to ‘close proximity, without actual contact’.

Contiguity figures strongly in the approach of a crusading Italian judge— famously one he recommended that we take when assessing politicians’ com plicity with the mafia. In his Bassano del Grappa speech of 26 January 1989, Judge Paolo Borsellino talked of ‘contiguity’, either in the form of ‘situations of closeness’ or of ‘commonality of interests’,as ‘automatically making the politician responsible for the crime of mafia association’.

The perceived wrongness of remaining contiguous to wrongdoers, when one could avoid it, might be traced to two quite distinct sources. Similarly to cases of consorting: one pertains to character, the other to causal consequences.