Complicity: Ethics and Law for a Collective Age

Vol. 14 No. 6 (June 2004), pp.420-423

COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE, by Christopher Kutz. Cambridge University Press, 2000. 344pp. Hardback. $70.00. £45.00. ISBN: 0521594529

Reviewed by Emmanuel Melissaris, School of Law, University of Manchester, UK. E-mail: manolis.melissaris@man.ac.uk

Are George W. Bush and Donald Rumsfeld to be held accountable for the tortures in the Iraqi prison of Abu Ghraib? Are drivers accountable for the hole in the ozone layer? Are gun sellers accountable for crimes committed with guns bought from them? The prima facie difficulty in allocating blame in such cases is that the acts or omissions described are not directly causally related to the harmful act. At the same time though, each case must provoke some moral reaction from most people. One might expect the president of the United States to bear some responsibility for the atrocities committed by the troops he commands. On the other hand, it seems counterintuitive to hold accountable every single driver for an environmental disaster that is disproportionately larger in scale than her behaviour and that she can do very little to prevent. At the same time, perhaps we feel that there is a stronger connection between the act of selling a gun and the crime committed with that gun and, therefore, the gun seller bears part responsibility for the crime. But intuitive, or perhaps even emotive, reactions cannot guide our moral preferences. We are in need of a moral principle that will justify our moral reactions to acts of complicity. This is precisely the kind of principle that Christopher Kutz tries to introduce in his careful, thorough and, at the same time, imaginative and socially and politically relevant book.

The point of departure of the book is that traditional theories of moral accountability can neither capture the complex structure of accountability nor inform our moral responses in cases of complicity. Kantian retributivism relies on the presupposition of moral agents as individuals judged solely on the basis of the rights or wrongs that they have committed. Kutz argues that, by focusing on wrongfulness rather than accountability, retributivism loses sight of a very important way in which we make sense of our moral universe. According to this descriptive first part of his overall argument, moral duties arise not only from actions that are unmistakeably causally attributed to us alone as actors, but also by our positioning in relations with others. “[A]ccountability consists in a warrant for certain kinds of typically interpersonal responses” (p.20) justified on grounds of conduct (pp.26ff), consequence (pp.38ff) or character (pp.42ff). However, this broadly functionalist understanding of accountability, as the author himself classifies it, should not be conflated with the consequentialist project of determining moral accountability with the measuring rod of utility maximisation. By perceiving accountability in relational and positional terms, Kutz raises a claim [*421] about what it means to live in a community of mutual relations, in which our moral standing is directly associated with the responses to our own actions. Clearly, this descriptive version of accountability must be qualified normatively so that it will not be rendered overinclusive. In other words, we still need to ask what exactly it is that warrants a response to a complicitous act.

To answer that question Kutz starts by giving an account of what constitutes collective action in the first place. To use his examples: what does it mean to say that “they committed a bank robbery,” or “they prepared the picnic for tomorrow” (p.66)? He favours a perception of collective action that incorporates the notion that the actions of a group are nothing but the aggregate of the actions of individuals constituting the group. However, he also takes a step further to combine this individualistic criterion with a holistic one: collective action always presupposes and is the outcome of the overlap of agents’ common intentions. Against theories that look for the group’s joint, uniform intention, Kutz introduces a minimalist criterion that requires agents to intend individually the collective outcome—to have a participatory intention. On the basis of such an individualistic and minimalist account of collective action he goes on to explain how we can mete out shares in moral accountability in cases of harmful collective action.

According to Kutz, a moral theory of complicity must be able to allow some room for individual accountability, while at the same time accounting for cases of marginal wrongdoing. Consequentialism determines the moral merit or demerit of an action with reference to its outcomes. In its subjective variation, agents are judged according to the consequences they intended; whereas, objective consequentialism focuses on the consequences that actually occur. Thus, consequentiliasm is committed to the common sense Individual Difference principle (p.116), according to which one can only be accountable if her actions have made a difference in producing the harm. On the other hand, Kantian universalisation and retributivism seem to rely implicitly on the common sense Control Principle, according to which one is accountable only when one can control the occurrence of the harm. As a result, Kantian conceptions of accountability are at a loss in cases of marginal participation. But marginal participation is criticisable on the same grounds as actions that are directly causally connected to the harm by virtue of the will of the agent, rather than the consequences of that will.

The principle that allows us to be responsive both to the intention of the agent as well as her role in the actual harm, and also be prepared to react in cases of collective harm, is the Complicity Principle: “(Basis) I am accountable for what others do when I intentionally participate in the wrong they do or harm they cause. (Object) I am accountable for the harm or wrong we do together, independently of the actual difference I make” (p.122). The complicity principle allows us to take seriously both the individual and the group in their interrelation without collapsing the one into the other—that is, without forgetting that individuals are responsible for their own actions but also that this cannot be used as defence when [*422] they have marginally participated in the harm a group has committed, despite their having fully endorsed the group’s aim. Therefore, a fighter plane pilot over Dresden (an example that Kutz uses extensively and forcefully), whose incendiary bombs miss their target, is equally accountable with those pilots who struck their targets, to the extent that he intentionally participates in the bombing. By the same token, Iago shares exactly the same degree of guilt for Desdemona’s murder as Othello. This does mean that the complicity principle is insensitive to the different shades that accountability can take. However, the decisive criterion here is neither consequentialist nor individualistic, but rather relational and positional, without disregarding the principle of novus actus interveniens (p.203)—that is, a line must be drawn between our actions and those of others. In Chapter 7, Kutz discusses how the complicity principle can apply in a legal context so that the problems of Kantianism and consequentialism can be overcome.

Instead of focusing on analytical points in the book to which I might raise objections (for example, the conflation of normative and metaphysical criteria in the description of a harmful act), allow me to address a different issue, the conception of the self and the community presupposed by Kutz’s account of complicity. In most moral theories there can be no confusion as to where they stand in matters of identity. Kantian universalisation and its liberal extensions go hand in hand with individualism, in some cases qualified and in others not. We are all autonomous and interact with our physical and social environment. But interaction presupposes dichotomy and separation. Community-based moral and political philosophies, such as communitarianism, do not buy into that perception of the self and politics. In the more extreme versions of such worldviews, we are constituted by our community to the extent that the latter has precedence over us. The more moderate take on the same theme would concede some form of independence of the individual while still focusing on interdependence with the group. And, of course, there are post-structuralist approaches to the same question, according to which we can only make sense of ourselves as organic parts of some community, and it is our self-realisation through the other that makes ethics possible. However, to the extent that meaning is socially constructed, the community can be as oppressive as it can be liberating.

Kutz alludes quite often to an alternative understanding of the community that his theory of complicity presupposes but never quite fully elaborates it. The last chapter of the book, consisting of a set of conclusions, is not very enlightening in that respect despite being entitled “Accountability and the Possibility of Community.” To be sure, throughout the book we get some insights as to the kind of community in which complicitous accountability is sensible and acceptable, as well as to what kind of community the complicity principle can lead: one, where no one simply “obeys orders” without reflecting on the moral soundness of her actions; where the President of the United States is as accountable as the smiling torturers in Abu Ghraib or the warders of the terra nullius that is Guantanamo Bay; where not being able to change the world single-handedly is not an excuse for continuing to contribute to a harm, even [*423] in a marginal way. There is no doubt that this conception of the self and the community is not easily palatable, because it makes us question the misguided sense of moral self-satisfaction that the individual difference and the control principles might offer us. But, at the same time, it is a conception of the self and the community that encourages critical reflection on the material and moral conditions of our existence and gives precedence to the other without crushing the self. Moreover, critical reflection and moral awareness cannot but bring us closer to moral integrity. These are questions that clearly call for further elaboration, which Kutz does not provide in the book. But this is not meant as a criticism. On the contrary, one of the values of Kutz’s work is that it provides a sober, analytically precise and exciting moral-theoretical account of complicity and, at the same time, opens up the debate on the important political questions of how we understand ourselves in our surroundings.

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