individual liability for institutional outcomes€¦ · states) first, for heuristic reasons:...

Individual Liability for Institutional Action

Christian Schemmel, Research Fellow, Centre for Advanced Studies “Justitia

Amplificata”, University of Frankfurt

ECPR General Conference, Reykjavik, 25-27 August

Panel on “Patterns of Participation and Complicity in Global Injustice, 26

August, 17:00-18:40h.

FIRST OUTLINE

Comments welcome: [email protected]

Outline

• Background

• Objectives

• Main argument:

1. The Concept of Responsibility/Liability

2. Institutional Agency

3. Dividing Responsibility for Institutional Action

4. Further Implications: Non-democratic States and Corporations

Conclusion, Methodological Reflections

Christian Schemmel –Individual Liability

for Institutional Action2

Background (1)

• Interest in group agency from previous work on relational egalitarianism: the main focus of the political value of equality are just egalitarian relationships (absence of domination, equal “social bases of self-respect”):

• institutional action (e.g., discrimination) expresses attitudes that instantiate relationships between state/basic structure and individuals subject to their power;

Such relationships between basic structure and individuals/groups form the core of a liberal relational egalitarian theory of social justice

Requires strong notion of group agency in case of functioning state: only a full-fledged agent can meaningfully express attitudes.



Background (2)

Core intuition: The stronger the notion of institutional agency drawn on, the more implausible to hold individuals responsible for unjust institutional action according to their –somehow to be identified – individual contribution/degree of complicity with that action;

But is that a conceptual implausibility, or a normative one, or both?

Motivation for this paper: find out.



Objectives

Deliver general conceptual framework for thinking about individual liability/responsibility for institutional action;

A framework that satisfies the following two conditions:1. Fits with our general conceptual apparatus for assigning responsibility/liability in individual cases: a liberal apparatus (responsibility assignments, and guilt and blame, only on the basis of one’s own actions/omissions);2. Is capable of yielding morally satisfactory guidelines for the erection and maintenance of well-functioning institutions, and for the reform/dissolution of malfunctioning ones, while respecting 1.;

well-functioning institution: one that acts consistently and effectively, within the constraints of justice (both internally and externally);

Develop a principled account of individual responsibility for different types of institutions.



1. The Concept of Responsibility/Liability (1)

• Responsibility and liability used interchangeably;

• Attempt to go as far as possible with strong concept of moral responsibility: liability to be assigned guilt/blame for one’s own actions.

Distributive duties/division of costs to follow from that ;

• Reason for sticking to moral responsibility: conceptual housekeeping.

In keeping with specific meaning of responsibility in moral vocabulary used for assessment of individual actions; attempt to meet criterion of continuity between assigning individual responsibility and individuating consequent distributive duties in cases of individual action and doing so in collective cases (see Objectives, point 1.)

To avoid challenge (as much as possible): Why should I pay for something for which I cannot be assigned any moral fault?

Distinguish from “general” meaning of responsibility: “x is responsible for y” = “x has a moral reason (of justice/morality) to do X (e.g., relieve suffering).

Using responsibility in this way amounts to giving up its special moral meaning .




• Responsibility/liability a necessarily diachronic concept: connects us to past and future actions;

Consistent assessment of past and future actions, in order to encourage stably just actions;

Desideratum also for responsibility for behaviour of institutions (see Objectives 2.).




Responsibility so understood to be kept distinct from:

• Causal responsibility: unfortunate term, causality almost always indeterminate prior to drawing on moral criteria for assignment, singling out morally salient ways of causing.

• Outcome, or consequential, responsibility (Miller, National Responsibility and Global Justice, ch. 4, see also Pasternak, “Sharing the costs of political injustices”, PPE 2010)

half-way house between specific and “general” meaning: on the one hand connection to one’s actions, and morally strong enough to assign distributive duties, on the other generally no assignment of blame/guilt (Miller, ibid.);

unclear category, danger of ad-hoc-ness for case of collective action; I will seek to avoid appeal to any such notion, as far as possible (Objectives 1.) ;

• Remedial, or task responsibility (Miller, ibid., see also Stilz, “Collective Responsibility and the State”, JPP 2011): draws only on “general” responsibility. Reducible to having a reason (of justice, morality, etc.) to do something (see slide 6).

Conducting a discussion of general reasons/duties of justice/morality in terms of responsibility so understood is in danger of obscuring the issue.




• Four bad/inconclusive reasons to shy away from moral responsibility for institutional (or: structural) injustice, and to resort to less morally laden notions of responsibility:

1. Obvious injustice of blaming any individual for the whole of institutional injustice, if all she did was upholding/supporting the institution. BUT: why not assign responsibility for upholding/supporting?

2. Problematic to punish individuals for upholding/supporting institutions. BUT: responsibility only necessary condition for punishment, not sufficient condition (Philip Pettit and Christian List, Group Agency, p. 156). We hold each other responsible for all kinds of actions without thinking that they always warrant punishment (e.g. breaking a promise).

For an example of confusion responsibility for state action liability to punishment, see Stilz JPP 2011, p. 205: if citizens could be assigned blame for the unjust policies of their state, Al Qaeda’s claim that they are therefore also appropriate targets for punishment/reprisal would be justified not necessary to deny responsibility to avoid this conclusion: a) liability to blame is not the same as liability to punishment ( + b) even if some punishment should indeed be appropriate, surely not in the form of an indiscriminate terrorist attack carried out by an unauthorized agent!! ).

3. (Allegedly) backward-looking focus of responsibility /liability on blame/guilt un- or counterproductive for achieving reform towards justice ; for example, because attributions of gulit/blame are socially divisive (Young, Responsibility for Justice, 2011, ch. 4, against the “liability model”). BUT: empirical claim, evidence needed. No a priori reason to think this necessary, if responsibility/liability discourse used properly (see also Nussbaum, Foreword to Responsibility for Justice).

4. Responsibility for upholding institutions committing injustices conflicts with individual moral responsibility for unjust individual acts? NO: not mutually exclusive. To the contrary: higher number of conceptually possible responsibility assignments to be welcomed, because increases opportunities for moral control (see slide 5 (Objectives), point , 2.). Example: why not assign responsibility for unjust war both to state – with consequent distribution of individual responsibility – and to members of government?



2. Institutional Agency (1)

But how to assign responsibility as understood in 1. in the case of institutional action? a) Equally, or proportionally (according to level of advantage) among all who upheld institutions, or b) according to individual contribution/association with particular collective injustice/unjust policy?

• Account given under 1., in continuity with everyday concept of personal responsibility might seem to favour b); but I will (mostly) try to argue a) , for the case of a full-fledged institutional agent.

Based on account of what it is for institutions to act – first conceptual argument, then normative implications.

Taking the case of fully developed institutional agent (especially functioning democratic states) first, for heuristic reasons: account of collective responsibility should start from “easy”, ideal case, to tackle more diffficult cases (e.g.,”structural injustice” without fully constituted institutional agents, Young 2011) from there.




• Account of institutional agency used that of Pettit/List, Group Agency, 2011:

• Functioning institutions are agents in full sense of the word, with capacity to take over moral responsibility for their actions: a) face normatively significant choices, b) have “understanding and access to evidence required for making normative judgments” about those, and c) have control over their actions (p. 155).

• Institutions function according to a constitution (set of decision and enactment rules) adopted and upheld by a significant portion of the involved individuals;

According to that constitution, an institution may adopt beliefs and intentions that are not shared by a majority of individuals upholding them;

It may even adopt beliefs and intentions that are not shared by any of them.

• Simplest case for showing independence of institutional from individual attitudes: three-judge jury deciding law cases: majority voting on the verdict and majority voting on the premises of the verdict may generate different results (for formal proof of impossibility of rational reduction of institutional to individual attitudes, see List and Pettit, “Aggregating Sets of Judgments: an Impossibility Result”, Economics & Philosophy 2002).

.




Supervenience of institutional actions and attitudes on the actions and attitudes of its members: “It is perfectly possible that the members of two different group agents individually have exactly the same intentional attitudes on some propositions, while the two group agents, due to their different organizational structures, hold different attitudes and act differently” (List/Pettit 2011, p. 66).

If attitudes of institutions are not reducible to attitudes of individuals sustaining them, attribution of responsibility for institutional action according to “contribution“, or “shared intention“ (“complicity”) may not succeed at identifying a crucial component of institutional action.




But is a high degree of independence from individual attitudes a special, possibly pathological, case? NO, to the contrary:

In order to achieve rationality (consistency over time and completeness), institutions have to display a considerable degree of independence/autonomy (List/Pettit , ibid.; example: voting unconstrained by previous institutional action can create inconsistencies);

Rationality consistent with high degree of attitude dependence only in dictatorial institutions: L’étatc’est moi the king’s attitudes are the institution’s; normatively objectionable!

Example for successful independent institutions: law courts that develop legal doctrines consistently while their composition changes; the Catholic Church, etc.;

Furthermore: complex institutional structures such as the state determine to a high degree which attitudes single component institutions (let alone their members) can endorse with hope of success:

Example: Swedish state: on the basis of its program, Swedish conservative party would count as a socialdemocratic party everywhere in developed countries outside Scandinavia, because set-up of Swedish welfare state constrains the policy options they can offer with hope of electoral success.

Casts doubt on sensibility of focusing on (in)justice of single policies and consequent distribution of individual responsibility, as opposed to holistic justice assessment of institution.



3. Dividing Responsibility for Institutional Action (1)

• Institutional independence from individual attitudes means that tracking individual responsibility for collective injustice case by case “by individual contribution” faces serious conceptual problem: in any given case, it may not be possible/sensible at all to determine the impact of such contributions on the injustice in question; “by contribution”-picture does not take institutional agency seriously enough.

• Furthermore: sticking to “contribution” picture might risk not being able to hold anyone at all responsible in complete irreducibility cases.

Incentive “for individuals to incorporate…so as to benefit from this deficit of responsibility” (Pettit/List 2011, p. 166)

(+: Suitable degree of independence needed for reasons of functionality of institutions, anyway, see previous slide).

Does not necessarily rule out normative case against tracking responsibility “by association” or “by identification” (“complicity”) – as long as is made clear that that is not the same as “contribution”;

But new normative argument for this needed. Runs risks of dividing up responsibility following an “ethics of conscience”: those who endorse/identify with unjust policy should pay (even if their real contribution cannot be ascertained).




Association/identification/”complicity” important for establishing to which extent the person in question possesses the personal virtue of justice (her character), but dubious for assigning responsibility for institutional action;

Example: US imposes own economic interest unjustly on developing countries. Who should bear more responsibility for such an unjust policy: the poor working class person supporting the policy strongly on chauvinist grounds, or the rich person with good political connections who despises nationalism, but fails to oppose the policy, even though she could have?

Rejection of responsibility “by contribution” as general method for dividing up collective responsibility does not rule out also holding those individuals responsible who did make a clearly identifiable contribution to the unjust policy: e.g., the official enactors; these should have refused to carry it out.

BUT: such assessment of individual contribution follows directly from the constitution of the institution in question, which assigns special roles/offices to such individuals; case not generalisable to all who played some role in upholding the institution and enabling it to act.

Such special individual responsibility assignment based on role/office not in competition with also assigning responsibility for action to institution as such (see slide 9, point 4.), and consequent further division of responsibility among individuals generally upholding institution: in case of individual refusal to carry out unjust institutional action, an effectively organised institution will find other enactors (Pettit/List 2011, p. 163; see slide 11, point on control) responsibility for that is what is in question.




It seems that parceling out individual responsibility for collective injustice should track overall functioning of the institution, and individuals` input into that.

Satisfying account has to reach proper balance between Objectives 1. and 2. (slide 5): honour both individual action and institutional well-functioning to the right degree .

Proposal: equal division of costs/division proportional to level of social advantage enjoyed by individual in question.

Argument for this: democratic authorisation (cf. Miller 2007, Stilz JPP 2011): (reasonably internally just) state acts consistently in the name of its citizens, and grants them political rights ;

Equal division of costs in case of political equality;

In cases of political inequality: division proportional to level of social advantage (resources) enjoyed by individual in question;

resources as a proxy for degree of political opportunity.




A Problem with Equal Division?

• Dissenters: those who “protest enough” against a policy do not authorise the state to enact it in their name (Pasternak, PPE 2010, p. 194, contra Miller 2007, ch. 5)?

Alternative solution: equal division in the name of embracing the intrinsic good of solidaristic democratic action, collective self-determination? (ibid.)

Willingness to take over equal share of costs despite opposition to given policy signals commitment to this good, and thereby makes possible/facilitate its collective enjoyment.




Two lines of counterargument to this challenge, positive (defending the authorisation account ) and negative (identifying weaknesses of the “intrinsic good of solidarity” account).

1. Positive:

• authorisation view properly understood doesn’t have the problem in the supposed form: objection fails to take institutional agency seriously;

what matters is not individually unjust institutional action, but institutional agency over time:

Stilz, JPP 2011: “The advantage that dissenters derive from the state *rights protection, etc.] ought to be counterbalanced with an incentive for them to control their state and when necessary, to take responsibility for the harms it inflicts as a byproduct of its authorized activity”;

This “incentive” points not merely to a desirable aim, but tied to achieving a well-functioning state (see slide 5) arguably a conceptual connection (counterexample would be a state that achieves justice by happenstance, without its citizens caring for it surmise: practically impossible).




Letting dissenters off the hook is incentive-incompatible:

• Merely voicing dissent insufficient, would be “ethics of conscience” ; what is needed are efforts of the right kind to stop unjust policy.

• But requirement of effective protest in order to avoid individual responsibility for unjust policy is incentive-incompatible: incentive to dissociate from every potentially unjust policy is dangerous for the social solidarity and trust necessary for any institution to function effectively.

• Danger of continuous ‘special pleading’: accepting the benefits of institutions’ just acts while disavowing all unjust acts.

Protest against single unjust policies should be motivated by conviction of injustice, not by desire to avoid responsibility;

Parallel: civil disobedience: willingness to accept sanctions for protest credibly expresses protesters’ commitment to both state in general and justice of its particular policies.




Only way to get “off the hook” and avoid individual responsibility for institutional injustice: to do everything one can reasonably be asked to do in order to undermine states’ capacity to act unjustly.

sustained political effort at institutional reform, not just one-off protest.

In case of global justice: political action towards effective international regime constraining/curbing states’ capacity to act unjustly.

Where such cases exist, equal ascription of individual responsibility, if at all, only pragmatically justified; however, protesters of this kind can probably generally be counted on to take over an equal share of costs to signal their commitment to state and solidarity (parallel to civil disobedience), despite not being responsible.




2. Negative:

a) Argument based on intrinsic good of solidarity is wholly normative; since no conceptual argument for the unsoundness of distribution of responsibility by individual contribution (see above 2.) given, this option still seems conceptually on the table:

solidarity-based account then runs risk of not being an account of collective responsibility in sense of slide 5 (Objectives), Point 1. at all: allows for the possibility that we actually are unequally responsible, but that we should pretend otherwise, in order not to endanger that intrinsic good (see previous slide).

b) Normative overshooting: what matters is not (only) intrinsic good of acting together (collective self-determination), but instrumental good of having functioning institutions: only effective institutions deliver stable solutions to collective action-problems, whether we value collective self-determination intrinsically or not.

Once more: conceptual reason (tied to what an effective institution is) to distribute individual responsibility for institutional injustice holistically, with view to institutional capacity, not on the basis of single unjust policies (see slides 13, 16).




• Wrap-up: but is proposed equal division/division proportional to social advantage properly described as tying in adequately with everyday concept of personal responsibility (including blame/guilt, see slide 5 (Objectives), point 1.)?

(Tentative) yes: it is possible to get off the hook by working towards the overall justice of institution in question (see slide 20), and improve its working over time.

To be sure, such an account of responsibility is quite remote from any causal requirement (responsibility only for what you caused) that many think is instantiated in cases of responsibility for individual action;

Cf. Stilz JPP 2011, p. 206, who sees this as a reason to shy away from strong responsibility, and to opt for weak (“task”, remedial) responsibility instead;

BUT: causality requirements morally laden also in individual cases (see slide 5) ; causality for omission possible (in case of special responsibilities – parents, etc.).

Such a “special” responsibility arguably exists for citizens: “natural duty of justice” (Rawls); people can be blamed for failing to work towards reform of institutions towards justice.



4. Further Implications (1): Non-democratic states

• No equal division, because no equal political rights.

Stilz JPP 2011, p. 208: but responsibility through establishing “voluntary connection” to such states (voluntary participation in war, displaying pride in state, etc.).

Ok, but we might go further: “developmental” use of the concept of responsibility (Pettit/List p. 168, example: to hold small children responsible even though they are not yet fully in control of their actions, in order to encourage the learning of responsible behaviour)

in order to encourage transition of institution towards justice.

But constraint: connection to everyday concept of responsibility (1.) still needed.

Intermediary proposal: even in non-democratic states, distribution according to advantage level possible: such advantage still constitutes means for political action towards justice and democracy ;

• possible exception :“golden cage”; full political repression, but abundant material advantage; e.g., citizens of Saudi Arabia? Is it plausible to think that the advantaged there really have no means to work towards reform?.



4. Further Implications (2): Corporations

• Crucial difference to states: participation in corporations voluntary (if embedded in reasonably functioning markets!).

• Primary individual responsibility:

in “ideal case”: withdraw from corporation – under conditions of a functioning market, flight of consumers/workers/shareholders (“strategy of exit”, Hirschman) supreme incentive to reform corporate behaviour;

• In non-ideal case (places left would be filled by those uninterested in justice/too many unjust corporations): work actively towards reform of corporation.

• Secondary responsibility: distribution of cost for past corporate injustice: not equal like in (politically egalitarian) states, but according to special role: CEO, employees with discretion, shareholders, etc..

Also holistic, not “single policy”-based.



Conclusion, Methodological Reflection

• Argument, if successful, has delivered conceptual framework for thinking about individual responsibility for institutional injustice, starting from ideal cases of fully constituted institutions;

• Has attempted to deliver guidelines for answering normative question of how to distribute such responsibility by establishing connection to conceptual account of what it is for an institution to act successfully, while keeping constraints imposed by everyday concept of responsibility in view.

• Methodologically: rests on belief that systematic (non-ad-hoc) answers to normative question only possible through proceeding in this way.

Needed: test of plausibility/development of implications of proposed model by drawing in more detail on concrete cases of institutions task for another day.



individual liability for institutional outcomes€¦ · states) first, for heuristic reasons:...

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