7 - Complicity, Conspiracy, and Shareholder Liability

Summary

INTRODUCTION

Participation means implication. It is the basis of individual accountability for what others do. But participatory accountability is inclusive, attaching to individuals as members of groups, and so differs from exclusive attributions of accountability. In Chapter 5 I showed how the moral responses to participatory wrongdoing by victims, onlookers, and participants properly reflect the difference between inclusive and exclusive accountability. However, because the diffuse domain of moral accountability finds its substance in the prior and particular web of moral and social relationships, few generalizations about moral accountability are both true and informative.

As H.L.A. Hart and Lon Fuller have argued, the domain of legal accountability is necessarily more determinate, especially in liberal regimes.1 Committed to fostering the autonomy of its citizens, a liberal state must narrowly tailor its punitive and reparative responses. Unless citizens can reasonably predict and control the imposition of legal sanctions, they cannot lead good and meaningful lives within the law's constraints. So, in order to lend determinacy to my discussion of participatory accountability, I turn now to the domain of law. I will focus on criminal liability for complicity and conspiracy, and on shareholders' civil liability for the torts of the companies in which they invest. These are all examples of the law's treatment of indirect liability. I will argue that the law's treatment of participatory accountability is dogged by the same problem as individualistic consequentialism and Kantianism. The law too fails to understand the nature of the normative and logical relations between groups and their members.