Complicity and Criminal Liability in Rwanda: A Situationist Critique

In Complicity and the Rwandan Genocide (2010b), Larry May argues that complicity can be the basis for criminal liability if two conditions are met: First, the person’s actions or inactions must contribute to the harm in question, and secondly, the person must know that his actions or inactions risk contributing to this harm. May also states that the threshold for guilt for criminal liability is higher than for moral responsibility. I agree with this latter claim, but I think that it casts doubt on May’s account of criminal liability, particular in so-called performance cases in which low-level participants merely fail to help. This is because it is far from clear that passive non-helpers are morally responsible for their participation in widespread harms. Situationism purports to show that passive bystanders typically are not morally responsible for their role in such harms, because they were behaving reasonably subject to the constraints they faced. In this paper, I assess this claim, and defend it on the basis of O. W. Holmes’ standard of the reasonable person as a guide to judging criminal complicity. Finally, I provide a situationist account of the Rwandan genocide, which focuses on the systemic causes and primary perpetrators of the genocide, rather than low-level participants.     

Co-responsibility and Causal Involvement

In discussions of moral responsibility for collectively produced effects, it is not uncommon to assume that we have to abandon the view that causal involvement is a necessary condition for individual co-responsibility. In general, considerations of cases where there is “a mismatch between the wrong a group commits and the apparent causal contributions for which we can hold individuals responsible” motivate this move. According to Brian Lawson, “solving this problem requires an approach that deemphasizes the importance of causal contributions”. Christopher Kutz’s theory of complicitious accountability in Complicity from 2000 is probably the most well-known approach of that kind. Standard examples are supposed to illustrate mismatches of three different kinds: an agent may be morally co-responsible for an event to a high degree even if her causal contribution to that event is a) very small, b) imperceptible, or c) non-existent (in overdetermination cases). From such examples, Kutz and others conclude that principles of complicitious accountability cannot include a condition of causal involvement. In the present paper, I defend the causal involvement condition for co-responsibility. These are my lines of argument: First, overdetermination cases can be accommodated within a theory of coresponsibility without giving up the causality condition. Kutz and others oversimplify the relation between counterfactual dependence and causation, and they overlook the possibility that causal relations other than marginal contribution could be morally relevant. Second, harmful effects are sometimes overdetermined by non-collective sets of acts. Over-farming, or the greenhouse effect, might be cases of that kind. In such cases, there need not be any formal organization, any unifying intentions, or any other noncausal criterion of membership available. If we give up the causal condition for coresponsibility it will be impossible to delimit the morally relevant set of acts related to those harms. Since we sometimes find it fair to blame people for such harms, we must question the argument from overdetermination. Third, although problems about imperceptible effects or aggregation of very small effects are morally important, e.g. when we consider degrees of blameworthiness or epistemic limitations in reasoning about how to assign responsibility for specific harms, they are irrelevant to the issue of whether causal involvement is necessary for complicity. Fourth, the costs of rejecting the causality condition for complicity are high. Causation is an explicit and essential element in most doctrines of legal liability and it is central in common sense views of moral responsibility. Giving up this condition could have radical and unwanted consequences for legal security and predictability. However, it is not only for pragmatic reasons and because it is a default position that we should require stronger arguments (than conflicting intuitions about “mismatches”) before giving up the causality condition. An essential element in holding someone to account for an event is the assumption that her actions and intentions are part of the explanation of why that event occurred. If we give up that element, it is difficult to see which important function responsibility assignments could have.     

Psychopaths and blame: The argument from content

The recent debate over the moral responsibility of psychopaths has centered on whether, or in what sense, they understand moral requirements. In this paper, I argue that even if they do understand what morality requires, the content of their actions is not of the right kind to justify full-blown blame. I advance two independent justifications of this claim. First, I argue that if the psychopath comes to know what morality requires via a route that does not involve a proper appreciation of what it means to cause another harm or distress, the content of violations of rules against harm will be of a lower grade than the content of similar actions by normal individuals. Second, I argue that in order to intend a harm to a person—that is, to intend the distinctive kind of harm that can only befall a person—it is necessary to understand what personhood is and what makes it valuable. The psychopath's deficits with regard to mental time travel ensure that s/he cannot intend this kind of harm.     

药物产品责任的伦理研究

对药物产品责任的监管与立法必须与药物的特殊性相吻合。在药物的产品责任伦理上,社会公益至上是首要的;药物的产品责任伦理应该以安全性为基础,又必须对这种安全性的相对性予以确认,来确立对药物风险和危害的监管与控制,探讨了建设我国药物产品责任伦理与法制的举措。     

If This Is My Body … : A Defence of the Doctrine of Doing and Allowing

I defend the Doctrine of Doing and Allowing: the claim that doing harm is harder to justify than merely allowing harm. A thing does not genuinely belong to a person unless he has special authority over it. The Doctrine of Doing and Allowing protects us against harmful imposition – against the actions or needs of another intruding on what is ours. This protection is necessary for something to genuinely belong to a person. The opponent of the Doctrine must claim that nothing genuinely belongs to a person, even his own body.     

A Not-So-Simple View of International Action

The Simple View (SV) holds that for someone to intentionally A, he must intend to A. Critics of SV point to intentional actions which, due to belief-conditions or consistency constraints, agents cannot intend. By recognizing species of intention which vary with the agent's confidence in acting, I argue that the stringency of consistency constraints depends on the agent's confidence. A sophisticated SV holds that the species of intending is related to the degree of intentionality of the action. Finally, I show that where agents do what they believe impossible, without intending to do so, the action is not intentional.     

The Intend/Foresee Distinction and the Problem of “Closeness”

The distinction between harm that is intended as a means or end, and harm that is merely a foreseen side-effect of one’s action, is widely cited as a significant factor in a variety of ethical contexts. Many use it, for example, to distinguish terrorist acts from certain acts of war that may have similar results as side-effects. Yet Bennett and others have argued that its application is so arbitrary that if it can be used to cast certain harmful actions in a more favorable light, then it can equally be manipulated to do the same for any kind of harmful action. In response, some have tried to block such extensions of the intend/foresee distinction by rejecting its application in cases where the relation between the plainly intended means and the harm is “too close”. This move, however, has been attacked as vague and obscure, and Bennett has argued that all the plausible candidates for explicating the idea of excessive closeness ultimately fail. In this paper, I develop and defend an account of excessive closeness with the aim of rescuing the intend/foresee distinction from such charges of arbitrariness. The account is based on the distinction between merely causal and constitutive relations among states of affairs, and I show both how it escapes Bennett’s objections to other accounts and how it applies to a variety of cases. Finally, I also examine Quinn’s alternative move of shifting the focus of the intend/foresee distinction in an attempt to sidestep the issue of closeness, and argue that it is not ultimately successful. In fact, Quinn’s view has shortcomings that can be resolved only by returning to an appeal to some notion of closeness, underscoring the need for the sort of account I offer.     

Does Purchasing Make Consumers Complicit in Global Labour Injustice?

Do consumers’ ordinary actions of purchasing certain goods make them complicit in global labour injustice? To establish that they do, two things much be shown. First, it must be established that they are not more than complicit, for example that they are not the principal perpetrators. Second, it must be established that they meet the conditions for complicity on a plausible account. I argue that Kutz’s account faces an objection that makes Lepora and Goodin’s better suited, and defend the idea that consumers are complicit in at least two of the ways distinguished by the latter. In the final section of the paper, I consider whether consumers’ responsibility for complicity in global labour injustice is likely to be as strong as responsibility from another source, namely benefiting from that injustice.     

The reasonably prudent person,or me?

Abundant research concerning the role of the self in social judgment suggests that people have a strong tendency to evaluate others’ actions, preferences, and values with regard to their own. Reliance on self-standards contrasts with the legal standard of the reasonably prudent person (RPP) standard, which presumably represents the behavior of the average person in the community. In three studies that investigated judgments of harmful actions, we compared the influence of self-standards (“How likely would I behave in this manner?”) and RPP estimates (“How likely would the average, reasonable person in the community behave in this manner?”). In each study, self-standards influenced participants’ judgments of guilt and the acceptability of the defendant's actions more than did judgments about what a RPP would do. Studies 2a and 2b also investigated attitudinal differences in susceptibility to RPP consensus manipulations. Participants judged a target who committed murder in self-defense, and also projected their own hypothetical behavior in the scenario. When the manipulated RPP disapproved of the murder, the target was deemed more culpable, but only among participants who themselves were unwilling to commit the hypothetical act. Participants who expressed willingness to murder in self-defense were unaffected by RPP information, regardless of whether or not it was consistent with their own stance. Hence, RPP information at best exerted minimal influence on juridical judgments, and only among certain participants. Implications of these findings for legal applications of the RPP, and for the role of the self in social judgment, are discussed.     

Moral phenomenology and a moral ontology of the human person

Terry Horgan and Mark Timmons’ work implies four criteria that moral phenomenology must be capable of meeting if it is to be a viable field of study that can make a worthwhile contribution to moral philosophy. It must be (a) about a unifed subject matter as well as being, (b) wide, (c) independent, and (d) robust. Contrary to some scepticism about the possibility or usefulness of this field, I suggest that these criteria can be met by elucidating the very foundations of moral experience or what I call a moral ontology of the human person. I attempt to partially outline such an ontology by engaging with Robert Sokolowski's phenomenology of the human person from a moral perspective. My analysis of Sokolowski's thought leads me to five core ideas of a moral ontology of the human person: well-being, virtue, freedom, responsibility, and phronesis. Though I do not by any means boast a complete moral ontology of the human person, I go on to demonstrate how the account I have presented, or something like it, can go a long way to helping moral phenomenology meet the criteria it requires to be a viable and worthwhile pursuit.     

Looking back with regret: Visual perspective in memory images differentially affects regret for actions and inactions

People can regret things they've done and things they've failed to do. However, the experience of a regrettable action tends to be painful, while regrettable inactions tend to be painful only when one considers the inaction's impact in the broader context of one's life as a whole (Gilovich & Medvec, 1995). Three experiments manipulated the visual perspective (own first-person vs. observer's third-person) that participants used to picture regretted actions or inactions from their lives. Imagery perspective influences the degree to which people's understanding of events is determined by features of the event itself (first-person) or by the integration of the event with broader self-knowledge (third-person) (Libby & Eibach, in press-b). As predicted, relative to first-person imagery, third-person imagery reduced regret for actions but increased regret for inactions. Results provide new insight into the relationship between imagery perspective, meaning-making, and emotion, and suggest ways to strategically increase or decrease regret.     

Reasons Explanation: Further Defense of a Non-causal Account

If moral responsibility requires uncaused action, as I believe, and if a reasons explanation of an action must be a causal explanation, as many philosophers of action suppose, then it follows that our responsible actions are ones we do for no reason, which is preposterous. In previous work I have argued against the second premise of this deduction, claiming that the statement that a person did A in order to satisfy their desire D will be true if the person, while doing A, intended of that action that it contribute to satisfying their desire D, a condition that does not entail any causal connection between the explaining desire and the explained action. This claim has received trenchant criticism from Randolph Clarke. The main part of the present paper responds to Clarke’s latest objections. The rest of the paper addresses another worry about my account (not raised by Clarke): does my non-causal sufficient condition hold as widely as it needs to if responsible, uncaused actions are as widespread as we would like to think?     

Holocaust Humor and Our Aesthetic Sensibility of American Genocide

The specific form of holocaust humor that I will address—as developed by comedians Larry David, Sarah Silverman, Rachel Bloom, Ilana Glazer, and Abbi Jacobson—is neither trivial nor trivializes the suffering of the Jews but rather can expose the complicity of our narratives about the holocaust with our own white indifference to the pervasive ruthlessness of American genocide against black communities and our failure to bear witness to the survival of certain genocidal logics from the past in the American present.     

Personality, person, subject in Russian legal philosophy at the turn of the twentieth century

The problem of the legal person is a central issue in legal philosophy and the theory of law. In this article I examine the semantic meaning of the concept of the person in Russian philosophy at the turn of the twentieth century, considered to be the “Golden Age” of Russian legal thought. This provides an overview of the conception of the personality in the context of different legal approaches (theory of natural law, legal positivism, the psychological legal doctrine, and the sociological school of law). I indicate a polemic among the theories of the person and attempts to create an integral concept of the legal subject. In addition I present an analysis of the relation between the concepts of the legal subject and the moral person, which personify fundamental features of law and morality. In order to demarcate the notions of individual and the legal subject, I focus on doctrines of the artificial person or the juridical person.     

VA telemental health: suicide assessment

The Department of Veterans Affairs (VA) encompasses one of the largest telemental health networks in the world, with over 45,000 videoconferencing and over 5,000 home telemental health encounters annually. Recently, the VA designated suicide prevention as a major priority, with telehealth modalities providing opportunities for remote interventions. Suicide risk assessments, using videoconferencing, are now documented in the literature, as are current studies that find telemental health to be equivalent to face-to-face treatment. Remote assessment of suicidality, however, involves complex legal issues: licensing requirements for remote delivery of care, legal procedures for involuntary detainment and commitment of potentially harmful patients, and liability questions related to the remote nature of the mental health service. VA best practices for remote suicide risk assessment include paradigms for establishing procedures in the context of legal challenges (licensing and involuntary detainment/commitment), for utilizing clinical assessment and triage decision protocols, and for contingency planning to optimize patient care and reduce liability.     

Beauvoir on Women's Complicity in Their Own Unfreedom

In The Second Sex, Simone de Beauvoir argues that women are often complicit in reinforcing their own unfreedom. But why women become complicit remains an open question. The aim of this article is to offer a systematic analysis of complicity by focusing on the Heideggerian strands of Beauvoir's account. I begin by evaluating Susan James's interpretation of complicity qua republican freedom, which emphasizes the dependent situation of women as the primary cause of their complicity. I argue that James's analysis is compelling as far as it goes, but that it implies complicity is the inevitable outcome of women's current existence and fails to adequately account for Beauvoir's claim that women actively embrace their own unfreedom. I then draw out the Heideggerian strands of Beauvoir's analysis, demonstrating how this enables us to systematize Beauvoir's account of women's oppressive situation with her claims regarding the active role women can play in reinforcing their own unfreedom. I argue that this approach preserves the strengths of the republican interpretation, but provides a better account of cases where complicity may not be inevitable and yet some women still act to reinforce rather than resist their own unfreedom.     

The patient-physician relationship and the allocation of scarce resources: a law and economics approach

Patients with insufficient financial resources place physicians in a conflict of interest between the patients' needs and the financial interests of the physician, other patients, and society. Not only must physicians act ethically, but they must avoid liability for violating their legal duties to their patients. The traditional rules of contract and malpractice law that govern the patient-physician relationship do not provide satisfactory guidelines. Better answers are found in the rules of fiduciary law, but only with regard to direct conflicts between patients and physicians and only at the risk of reducing patient access to care. Certain types of legislative action can resolve these conflicts by altering the traditional legal rules, but care must be taken to preserve patient-physician trust, which the legal rules were designed to enhance.