|Responsibility and Answerability in the Criminal Law*
1. Responsibility as Answerability
The current philosophical debate on moral responsibility has paid increasingly more attention to the distinction between two notions of responsibility.1 One is the notion of responsibility as attributability, which specifies the conditions under which a certain act or attitude can be properly attributed to the agent. This ultimately involves assessing the agent’s self, as manifested through her conduct, on the basis of some normative standards that she is subject to. The other notion is the notion of responsibility as accountability or answerability, which specifies the conditions under which the agent can be called to answer for her act by the members of the relevant moral community. Once it is clear that a certain conduct can be attributed to the agent in a way that reflects her self, thereby making the agent an appropriate object for moral appraisal, we need to ask whether she can be held responsible (and therefore blamed or praised) for it by the members of her moral community. This will be the case only if the conduct at hand is governed by a set of normative standards that entitle the members of the moral community to make demands on the agent and legitimately expect her to justify her conduct to them. In other words, whereas responsibility as attributability refers to the connection of the agent with her action, responsibility as accountability refers to the interaction between the agent and the moral community to which she belongs.2
It is no surprise that the second notion of responsibility has generated particular interest among philosophers working on criminal responsibility, since the very idea of liability to sanctions seems to rely on the practice of calling wrongdoers to account for their criminal acts.3 Indeed, two prominent attempts to develop a conception of responsibility as answerability are to be found in the work of two influential philosophers of the criminal law: Antony Duff and John Gardner. Duff and Gardner share the view that criminal responsibility should be understood in terms of answerability, i.e. in terms of the reasons offered by the wrongdoer in order to justify her conduct.4 However, this view is formulated in very different ways by the two.
Duff’s account is ultimately founded on the idea that as members of the political community we are criminally responsible to our fellow citizens in relation to those wrongs that ‘properly concern’ the political community. This is because responsibility, according to Duff, is to be understood in relational terms: X is answerable to Y for her conduct (and vice versa) only to the extent that X and Y stand in a relationship that makes X’s conduct Y’s business (and vice versa). It is the fact that X and Y are in such relationship that gives them the right to call each other to account for their conduct with respect to certain matters.
This view fits nicely with the way in which we normally think about our responsibilities. If I cheat on my wife I am certainly answerable to her for what I did.5 She can legitimately demand that I offer reasons that justify, excuse or simply explain my conduct. Perhaps, depending on the circumstances, I am also answerable for my cheating to the rest of our family (at least to close family members) or to some of our friends. All of these people can demand that I explain my conduct to them by offering reasons for it, although this demand will have a different strength depending on their specific relationship with me. But these are reasons that I am not also required to offer to passing strangers. The latter can certainly criticize my conduct if they wish, say that cheating was a lousy thing to do, but they do not have the right to call me to justify or explain my conduct to them. My family life is simply none of their business.
Gardner, on the other hand, adopts an agent-neutralist account according to which ‘all reasons are ultimately the same reasons for everyone’.6 Although in a trivial sense the reasons that I have not to cheat on my wife do apply especially to me (logically, I am the only person who can break my wedding vows), those reasons are at the same time reasons that apply to everyone. Everyone has a reason to care about the fact that I don’t cheat on my wife, to regret that I do so, to contribute to my non-cheating;7 which explains why, at least in principle, everyone has the right to call me to answer as to whether I am faithful to her.8
There are of course pragmatic reasons which explain why most of the time this will be unwise. Given the limited amount of time and ‘rational energies’9 at our disposal, doing so will often turn out to be of little use, if not altogether counter-productive, and this explains why normally we’d better attend only to a subset of the reasons that apply to us. Still, in principle, ‘everyone’s conformity to every reason is everyone’s business.’10 The fact that I have a reason not to cheat on my wife gives, at least in principle, everyone the right to call me to answer for my conduct toward her.
Once applied to criminal responsibility, this view supports the striking conclusion that we can be called to answer by any court in relation to any criminal wrong. In Gardner’s words: ‘criminal courts have authority over [us]…, to the extent that they do, irrespective of whether they are [our]… courts, irrespective of whether they administer [our]….law, and irrespective of whether this is [our]… country.’11
My own sympathies are with the relational account. Defending this view would require an extensive discussion of issues of practical reason that are beyond the scope of this paper, but ultimately the problem with Gardner’s view is that it misrepresents cases such as the one discussed above. Saying that my cheating is in principle everyone’s business, and that strangers should refrain from calling me to account only because this would be counterproductive all things considered, simply distorts the moral situation at hand. As Duff observes, the point is not that strangers have some reasons to call me to account for my cheating, which are then overridden by other reasons they have not to interfere. The point is that my love life is ab initio none of their business.12
Gardner himself is sensitive to this thought and strives to show how his position can account for it:
Needless to say, I share Duff’s view that a stranger’s immorality toward her friend or parents may (correctly) strike me ab initio as none of my business. The question is: how are we to interpret that verdict? I interpret it to mean that it is not my place to interfere. I have no standing in the matter. I have no relevant right or duty. The question of whether I have such a right or duty arises, however, only because there is a reason for me to intervene and I need to decide (or it needs to be decided) whether or not I am to act on it. If there were no such reason, there would be nothing for me to attend to in the stranger’s immorality, and hence nothing for me to take any attitude to, whether ab initio or otherwise.13
But this way of formulating the problem conflates the question of whether a stranger’s immorality is ab initio my business with the question of whether it is immediately clear that I have no right to call her to account. There are certainly cases in which although I do have some reasons to call someone to account, it is obvious – and obvious from the very beginning – that all things considered I should not act on these reasons. But when we say that certain wrongs are not my business ab initio, we intend precisely to mark the difference between this type of situation and one in which there is no reason for me to attend to those wrongs in the first place.
Gardner writes that the question of whether we have a right to call someone to account arises only when there is a reason for us to do so and we need to decide whether or not we are to act on it, but this way of thinking about the problem seems misleading. The question of whether we have a right to call someone to account does not presuppose that there is a reason for us to do so. Rather, the question arises when we are assessing whether such reason exists.
When presented with my infidelity you ask yourself if you have the standing to call me to account for it. If we are related in a way that gives you that standing, you have some reasons to do so, and thus you should check whether those reasons are overridden by other considerations (such as those mentioned by Gardner). If we are not related in the relevant way, you do not have any reason whatsoever to call me to account, in which case there is nothing that needs to be balanced with countervailing reasons. Contra Gardner, the mere fact that you can ask yourself whether you have a right to interfere does not presuppose that there is some reason for you to do so. Similarly, the mere fact that you can ask yourself whether you should watch The Third Man does not presuppose that there is some reason for you to do so. Perhaps you hate noirs, in which case you do not have any reason to watch it. The question you ask yourself when you wonder whether you should watch the movie arises precisely as part of your inquiry as to which reasons you have to act.
But while I endorse a relational account of responsibility along the lines developed by Duff, I also believe that there are wrongs for which we are criminally responsible to all human beings. Thus, there is a class of wrongs for which my theory and Gardner’s coincide, although this is nothing more than an extensional equivalence. I contend that there are wrongs for which any human being can call us to account, but this is not because ‘everyone’s conformity to every reason is everyone’s business’. Rather, it is because all human beings share some important normative relationship that gives them the standing to do so.
This is a view that, understandably, Duff is very cautious about.14 Although in fact he adopts it himself in relation to a limited number wrongs, he is wary of the implications that the view has if formulated in the way I will suggest. Indeed, accepting my formulation requires radically revising the way in which we understand criminal responsibility and, particularly, the way in which the distinction between domestic and international crimes is currently drawn. I argue that these worries should not dissuade us. Many wrongs that are currently considered domestic in nature are in fact wrongs for which we are answerable to all human beings, and we should revise our way of thinking about the distinction between domestic and international crimes accordingly.15 This revision has important practical implications, but they are not as disruptive as we might think.
My argument is in four steps. In the next section I provide an account of the distinction between wrongs for which we are answerable to the domestic political community and wrongs for which we are answerable to the whole of humanity. In section 3 I employ this account to revise the way in which the distinction between domestic and international crimes is currently drawn. I argue that any violations of basic human rights, including those that are not committed in the context of an armed conflict or as part of a wider attack against a civilian population, constitute wrongs for which we are answerable to the whole of humanity, and therefore trigger international criminal responsibility. In section 3 and section 4 I consider and answer two main objections that can be moved to the view I suggest. In section 5 I compare my relational account with the one defended by Duff and argue that the former provides a more convincing explanation of a crucial distinction that Duff himself intends to draw.
2) The Relational Account of Responsibility
Let me start by providing a more detailed account of the relational conception of responsibility. The main idea is that being responsible is being answerable for something, to someone, in virtue of our occupying a certain role.16 We are all members of different groups and in virtue of these memberships we share normatively laden relationships with others. An aspect of this picture that tends to monopolize the attention of philosophers is the fact that these relationships ground special duties towards the members of the relevant group (hence the classic discussions about how we should understand our duties to fellow citizens, family members, friends and so on). But a second, equally important, aspect is the fact that such relationships also provide members of the relevant group with the standing to call each other to account in relation to specific matters.17
For example, my being a teacher has normative implications to the extent that it grounds duties that I would not have if I did not occupy this role, but also because in virtue of my occupying this role I am answerable to my colleagues and my students in relation to matters for which I am not answerable to others. In the same way that my colleagues have no right to call me to account for my marital infidelity, my wife and my family members normally have no right to call me to account for showing up late at departmental meetings, since I am accountable to them only for those responsibilities that I have as a member of my family (and not for those that I have as a member of my department).
As it will become clear soon, this picture is too schematic, and one of the aims of this paper is to complicate it further. Still, it is a good starting point in that it exemplifies how the standing to call someone to account crucially depends on the fact that both parties are members of the same relevant group. What we need to do now is clarify how we can move from moral to criminal responsibility. This can be done in two steps.
First, Duff suggests that criminal responsibility is grounded in citizenship. As citizens, we are answerable to the other members of the political community in relation to those wrongs that ‘violate values on which the civic enterprise depends and display a lack of the respect and concern that citizens owe to each other as fellow citizens’.18 Whereas civil wrongs are private matters between the offender and the victim, criminal wrongs are ‘public’ in the sense that they properly concern all the members of the political community.19 Indeed, the very purpose of the criminal law, according to Duff, is to ‘identify and declare the public wrongfulness of certain kinds of moral wrongdoing, and to provide for an appropriate public response to them’.20
Second, criminal wrongs are so serious that they are properly censured by punishment. Saying that there are wrongs for which we are answerable to our fellow citizens is not yet saying that we should be criminally responsible for them, because there are different ways in which we can be called to account. What is special about criminal responsibility is that it warrants the use of punishment as an appropriate form of censure, and the condemnatory force of punishment is such that only particularly serious wrongs ought to be properly censured in this way.21 Thus, (domestic) criminal wrongs are a subset of those wrongs for which we are accountable to the polity, i.e. those wrongs that cross the threshold of seriousness required to justify their inclusion in the criminal law.
The idea that as citizens we are answerable to the other members of the political community in relation to those wrongs that violate values on which the civic enterprise depends is obviously supposed to account for domestic criminal responsibility; but the relational scheme can also be employed to account for international criminal responsibility.22 In the same way in which domestic courts have the right to call wrongdoers to account in relation to those wrongs for which they are answerable to the domestic political community, international courts (and domestic courts claiming universal jurisdiction) have the right to call wrongdoers to account in relation to those wrongs for which they are answerable to the international community. For if domestic punishment can be justified as a way of calling wrongdoers to account for those wrongs that they are answerable for in virtue of their being members of the polity, international punishment can be similarly justified as a way of calling wrongdoers to account for those wrongs that they are answerable for in virtue of their being members of the community of humanity.
Duff is aware of how problematic this move is and he is extremely cautious about the possibility of portraying the international community as a political community. While he acknowledges that the creation of international institutions such as the International Criminal Court can certainly be seen as ‘one of the ways in which the moral ideal idea of a human community might be given some more determinate and effective institutional form,’ he also maintains that this process is still in its infancy and is probably best seen as an aspiration for the moment.23 Still, his account of international criminal responsibility ultimately relies on the idea that in the same way in which there are wrongs that should concern us, and are properly our business, in virtue of our membership in the political community, ‘some kinds of wrong should concern us, [and] are properly our business, in virtue of our shared humanity with their victims (and perpetrators): for such wrongs the perpetrators must answer not just to their local communities, but to humanity.’24
This is a powerful idea and the aim of this paper is ultimately to explore how this philosophical move and its implications should be understood. In particular, the paper aims to offer an account of how we should understand the distinction between wrongs for which we are answerable to the domestic political community and to the international community respectively. This is a problem that Duff does not address directly. He seems to assume that the wrongs for which we are answerable to humanity, rather than to our domestic political communities, are those currently falling within the scope of international criminal law (he discusses war crimes and crimes against humanity), but he never explains why.25 What is lacking in the picture presented by Duff so far is an account of what makes certain conduct the business of political communities and other conduct the business of the international community.
Elsewhere I have suggested that in order to explain this distinction we should start by distinguishing between two types of wrongs.26 Some types of conduct are wrong only in virtue of the restrictions that members of politically organized groups take, more or less voluntarily, upon themselves in order to make their living together possible. These wrongs are contingent on certain rules and principles being adopted by these members in order to structure their relationships in a way that enables them to peacefully live together. Had these principles and rules been different, there would be nothing wrong with engaging in those types of conduct. And indeed, if the number of those who abide by these restrictions is too small, it is questionable that we would still have reasons to observe them.
Other types of conduct, most notably violations of basic human rights, are wrong independently of any of these considerations. The wrongness of these types of conduct is not contingent upon any rules or principles being adopted within the community in which we find ourselves acting, nor is it contingent upon how those around us behave. I contend that wrongs of the first type are to be considered merely domestic: they only concern the domestic political community and this is why no other political institution can intervene to punish them. Wrongs of the second type, by contrast, properly concern the whole of humanity (although, as it will become clear, they can also have a domestic component, under certain conditions) and this explains why the international community has the right to punish them.
Let me illustrate this distinction by briefly comparing theft and rape. Taking something over which someone else claims control is morally wrong only to the extent that we are part of a politically organized group that has adopted a system of private property, i.e. a system that allocates to specific individuals exclusive control over certain resources. Absent such a system of rules, we would have no moral reasons to refrain from appropriating things over which others claim control. Indeed, it might be argued that absent a system of private property, taking things which others claim control over would not even count as stealing.
Some might find this view counterintuitive because of the influence of the Lockean idea of a natural right to property, but Hobbes, Rousseau and Kant all defend some version of it. For Hobbes property is a creation of the sovereign state. Similarly, Rousseau explicitly rejects the idea of a natural right to property and distinguishes between mere possession, which can be achieved in the state of nature, and genuine property which is only possible within an authoritative legal system that defines and enforces property rights. Kant’s view is more complex but it ultimately relies on the idea that we can have non-provisional property rights over something only to the extent that others recognize an obligation to refrain from using it. Indeed, for Kant the main reason why individuals must leave the state of nature and enter into a civil condition is precisely to make (non-provisional) property rights possible.
What all these views have in common is the thought that property rights depend for their existence on individuals having entered into a political relationship with those living next to them. Outside the scope of these relationships there are no property rights, or at least no fully-fledged property rights, and therefore it is not wrong to use any of the resources that we come across, no matter who claims control over them. But if the existence of private property depends on the fact that we are part of a political community that implements specific social rules about how to allocate exclusive control over certain resources, it follows that the moral reasons we have not to steal also depend on our being part of such a community. Again, absent such a system of rules (in a state of nature as imagined by Hobbes, Rousseau or Kant), or simply in a social context with rules different from those of private property, we would have no moral reason not to steal. Indeed, some go as far as to say, that in such a context theft would be conceptually impossible.27
Consider now, by contrast, crimes such as torture, murder or rape. How should we account for the difference between these crimes and crimes like theft? The crucial difference seems to be the following: we have a moral obligation to refrain from committing torture, murder and rape simply in virtue of the respect that we owe to others qua human beings, independently of the specific social rules adopted by the polity to which we belong. Our obligation to refrain from committing these crimes is not conditional on the existence of the state or of any system of social rules declaring these types of conducts as wrongful.28 Even if we lived in a state of nature as imagined by Hobbes, Rousseau or Kant, or in any other social context that did not prohibit torture, murder or rape, we would still have an obligation to refrain from them.29
This suggests that while we can account for crimes like theft exclusively in terms of the fact that these crimes ‘violate values on which the civic enterprise depends, and display a lack of the respect and concern that citizens owe to each other as fellow citizens’, crimes like torture, murder and rape cannot be characterized in the same way. Crimes that violate basic human rights do not merely violate values on which the civic enterprise depends, nor do they merely display a lack of respect and concern that citizens owe to each other as fellow citizens. They show a deeper and more serious form of lack of respect: lack of respect and concern that individuals owe to each other qua human beings, i.e. independently of their common membership in any social or political community. And for the same reasons why we are answerable to the members of the political community for failing to treat them with the respect and concern that they are owed as fellow citizens, we should conclude that we are answerable to the members of humanity for failing to treat them with the respect and concern that they are owed as fellow human beings.
Thus, this is how we should account for the difference between wrongs for which we are responsible to our domestic political community and wrongs for which we are responsible to the wider community of humanity. But accounting for the distinction between these two types of responsibilities in this way requires that we revise how the distinction between domestic and international crimes is currently conceived, or so I will argue. Before I explain why, however, let me make clear that I do not intend to claim that the latter distinction perfectly maps onto the former. Gaining an understanding of which wrongs should be considered merely domestic is important in that it enables us to identify those crimes that are the exclusive business of the domestic political community, i.e. crimes involving wrongs for which we are answerable to nobody else but the members of our polity. But not all domestic crimes are ‘merely domestic.’ The class of domestic crimes is broader than the class of merely domestic crimes, since it also includes crimes that have both a domestic and international component, i.e., crimes involving wrongs for which we are answerable both to our fellow citizens and to the international community. The double-layered structure possessed by these crimes will be examined in the next two sections.