The One or the Many
Jens David Ohlin
Cornell University - School of Law
April 16, 2013
Criminal Law & Philosophy, Forthcoming
Cornell Legal Studies Research Paper No. 13-88
The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral responsibility. Under this view, collective moral agency is a real phenomenon, though the existence of the collective neither obviates nor eliminates the moral responsibility of the individuals from which it is composed. My own evaluation of the proposed solution concentrates on Davidson’s Principle of Charity and whether behavior interpretation requires viewing such agents in particular ways so as to maximize rationality. By analogy to the distinctive rationality of long-term plans, where the rationality of an individual act can only be understood relative to its place in the rationally justified long-term plan of a single individual, I also consider the rationality of individual acts whose rationality can only be understood relative to the group endeavors of which they are a part. Finally, Part III traces some implications of the two-level solution for legal doctrine, in particular the role of collective organizations in the recent jurisprudence of the International Criminal Court. In particular, I note that the ICC has recently become more and more focused on the role played by goal-oriented collectives, in particular with regard to the plan or policy requirement for crimes against humanity and, in the context of modes of liability, indirect liability for crimes committed through an organization (Organisationsherrschaft).
Number of Pages in PDF File: 20
Keywords: Collective responsibility, moral responsibility, collective action, organizational liability, Organisationsherrschaft, Principle of Charity, Donald Davidson, Doctrinal Paradox, Discursive Dilemma, Joint Intentions
Date posted: April 19, 2013
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