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SPRINGER BRIEFS IN ETHICS

Daryl Koehn

Toward a New
(Old) Theory of
Responsibility:
Moving beyond
Accountability

123
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Daryl Koehn

Toward a New (Old) Theory

of Responsibility: Moving
beyond Accountability

123
Daryl Koehn
Department of Philosophy
DePaul University
Chicago, IL, USA

ISSN 2211-8101 ISSN 2211-811X (electronic)

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For Herman Sinaiko who taught me to teach
myself how to read Plato responsibly
Contents

1 Why We Need a New (Old) Idea of Responsibility . . . . . . . . . . . . . . 1

1.1 Responsibility within the Anglo-American Context . . . . . . . . . . . . 1
1.2 Alternative Ideas of Responsibility . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 The Challenge and Dialogical Responsibility as a Response . . . . . 4
1.4 Two Goals of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Intentional Agency Responsibility in the Anglo-American
Legal Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Strengths of the Intentional Agency Approach . . . . . . . . . . . . . . . 13
2.3 Weaknesses of the Intentional Agency Approach . . . . . . . . . . . . . 15
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3 Jonasian Ontological Responsibility . . . . . . . . . . . . . ............ 27
3.1 Ethical Imperatives of an Ethics of Responsibility ............ 28
3.2 How Metaphysics and Science Brought about
the Current Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.3 Strengths of Jonasian Ontological Ethics . . . . . . . . . . . . . . . . . . . 33
3.4 Weaknesses of Jonasian Ontological Ethics . . . . . . . . . . . . . . . . . 36
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4 Arendtian Communicative Responsibility . . . . . . . . . . . . . . . . . . . . . 43
4.1 Phenomenology of the Human Condition . . . . . . . . . . . . . . . . . . . 44
4.2 Strengths of Arendtian Communicative Responsibility . . . . . . . . . 49
4.3 Weaknesses of Arendtian Communicative Responsibility . . . . . . . 51
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5 Socratic Dialogical Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
5.1 Dialogical Thinking as Lifelong Disharmony . . . . . . . . . . . . . . . . 62
5.2 Why Dialogical Thinking Is Good for Us . . . . . . . . . . . . . . . . . . 67

vii
viii Contents

5.3 Strengths of Socratic Dialogical Responsibility . . . . . . . . . . . . . . . 69

5.4 Possible Objections to the Dialogical Approach
to Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 81
6.1 Integration of Formal Versus Material Understandings of
Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 82
6.2 Integration of Past and Future Aspects of Responsibility . ....... 86
6.3 Integration of Freedom and Necessity into a Genuinely
Human Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 88
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 89
Chapter 1
Why We Need a New (Old) Idea
of Responsibility

…[T]he demands of the modern world on ethical thought are

unprecedented, and the ideas …embodied in most contemporary
moral philosophy cannot meet them; but some extension of
ancient thought … might be able to do so.
—Bernard Williams

Abstract The Anglo-American tradition has understood responsibility largely in

terms of intentional agency or role-based duties. Yet this approach increasingly
appears inadequate to deal with pressing new issues arising in connection with climate
change, transformations being wrought by artificial intelligence, and bureaucratic
institutions that diffuse accountability. Which alternative approaches to responsibil-
ity exist? Might they enable us to better address such issues? Or are these ideas
equally problematic? This chapter sketches the current dominant Anglo-American
idea of responsibility and two alternative approaches grounded in human nature and
the human condition. I argue that none of these conceptions are adequate to the chal-
lenges we currently face and provide some reasons for why we would be better served
by embracing a classical, Platonic concept of responsibility. This concept keeps the
act of responding within responsibility and avoids reducing it to mere accountability.

1.1 Responsibility within the Anglo-American Context

Modern Anglo-American analytical philosophy and the Western legal tradition have
largely understood responsibility in two primary ways—as duty fulfillment and as
causal, intentional agency. The first popular approach equates acting responsibly
with the discharging of a duty. Citizens in a democracy are responsible for casting
their votes in elections if and when they are eligible to do so because voting, like
jury service, is a basic duty of a democratic citizenry. Directors of companies owe
a duty of care and of loyalty to the firm and can be held legally accountable if they
violate these fiduciary duties. Professionals are deemed responsible—sometimes

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2019 1

D. Koehn, Toward a New (Old) Theory of Responsibility:
Moving beyond Accountability, SpringerBriefs in Ethics,
https://doi.org/10.1007/978-3-030-16737-0_1
2 1 Why We Need a New (Old) Idea of Responsibility

legally—for acting in accordance with their covenantal duties to serve. The doctor
is responsible for seeking to heal her patients, the defense lawyer for defending her
client to the best of her ability and in accordance with her role as an officer of the
court.
This professional role-based conception of responsibility as duty fulfillment
underpins much of the criminal justice literature but extends far beyond the legal
field as well. The two dominant theories in business ethics—stockholder and stake-
holder theory—both implicitly rely upon a conception of role-based duties, which are
seen as giving rise to responsibilities. According to Milton Friedman (1970), man-
agers of firms have but one responsibility—to devote themselves to maximizing legal
profits owed to the shareholders who own the firm. Friedman would have us evaluate
the ethical goodness of managers’ behavior by examining their intentions and con-
sidering whether and to what extent their actions have increased—or, at least, have
sought to maximize—the economic value of the firm within the bounds of the law.
Criticizing Friedman, William Evan and R. Edward Freeman (1988) and other busi-
ness ethicists have articulated an alternative approach that nevertheless also revolves
around managerial, role-based duties. On this view, managers act responsibly only
when they aim to respect and realize the legitimate interests of key stakeholders in
the firm (customers, employees, shareholders, governments, and so on). Stakehold-
ers are parties whose actions contribute in a major way to the ongoing functioning of
the firm. Many stakeholder interests are enshrined within labor laws, environmental
protection policies and directives, tax policies, administrative regulations, etc. Stake-
holder theory stipulates that managers have a responsibility to maximize stakeholder
value and benefits, not merely corporate profits.
These role-based duties or responsibilities presuppose agential intentions and
choices. For agents are assumed to be able to choose to fulfill or neglect their
duties. This observation brings me to the second dominant Anglo-American approach
to responsibility—one centered on intentions. This intentional agency approach
assumes that agents can and do initiate actions in accordance with more or less well-
formed plans. Shareholders and stakeholders believe that managers can intentionally
aim at (or fail to aim at) maximizing profits, bringing benefits to communities, offer-
ing employees fair wages, and paying the taxes the corporation owes. Professionals
such as doctors and clergy promise and even swear an oath to promote the good
(e.g., health or salvation) of their patients and congregants. Society both believes
and expects that professionals understand their covenanted oaths and then look to
them to guide their choices and actions in an intentional, thoughtful, and meaningful
way (Koehn 1994).
For its part, Anglo-American criminal law examines whether the accused intended
the harm he or she is alleged to have caused. We are liable or responsible for certain
harmful acts if and when we intentionally cause them. The duties and intentional
causation approaches often both come into play when we attempt to evaluate who
has behaved responsibly. A professional might accidentally fail to fulfill her duty
and thereby cause serious harm to a client. She might then be judged irresponsible,
although the legal system might not impute any criminal or civil responsibility to her
if the failure were in no way intentional.
1.2 Alternative Ideas of Responsibility 3

1.2 Alternative Ideas of Responsibility

When we look beyond the Anglo-American sphere, we find a very different kind
of account of responsibility. This alternative conception centers less upon roles and
causal intentionality and more upon human nature or the human condition. Associated
primarily with twentieth century German thinkers, this approach maintains that (1)
we are able to exist as a species only insofar as we care for nature, including human
nature; or (2) we have reality and substance only insofar as we appear to each other
in a public space or sphere and bring the perspectives of other human beings into our
thinking.
Hans Jonas (1984) relies on the first claim, grounding his ethic of responsibility in
the nature and being of mankind. We all are, he contends, part of a dynamic, evolving
natural system. The mere fact that we are metabolic beings entails that we should
care for nature. Since nature supports us, we owe it to nature not to make the earth
uninhabitable for animate beings. His account derives human responsibility from
our evolved essence as beings who aim at persistence at the individual and species
level. In appealing to a human essence or nature, Jonas hearkens back to ideas we
have inherited from the ancient Greeks. Here being responsible means honoring a
prospective duty to care for mankind. Unlike role-based responsibilities voluntarily
assumed by professionals or officials, this duty is quite general. We all have this duty,
whether we want to assume it or not.
An alternative version of a non-intention-based approach to responsibility is devel-
oped in the work of Hannah Arendt (1958, 1964, 1971). For Arendt, we are genuinely
human only when we appear to one another and share our individual unique opinions,
thereby creating the intersubjective public space. Our appearing to others includes
both the judgments we make about our actions and the deeds of others and the public
defense we mount of our judgments. Human beings exist in the fullest sense when
we respond to each other, anticipating what others might say about our views and
fairly representing their objections to ourselves as we think about important issues.
The human condition is irreducibly one of plurality. Each person’s point of view
deserves to be heard because the totality of expressed opinions constitutes the world
or public space. Responsibility means caring for this world by honoring plurality. In
addition, Arendt insists that we need to be in dialogue with ourselves in order to act
well and to avoid evil—i.e., to behave responsibly. Responsibility so construed is not
tightly bound to a system of specified fiduciary duties. Nor is it, on the face of it, tied
to the idea of legally enforceable justice. Instead, responsibility is something like a
communicative act. We are responsible when we offer to ourselves and to others an
account of our actions and speech and when we attempt to respond to their concerns
and objections.
4 1 Why We Need a New (Old) Idea of Responsibility

1.3 The Challenge and Dialogical Responsibility

as a Response

Although the Anglo-American common law and modern European approaches to

understanding responsibility diverge in some significant ways, thinkers and citizens
alike have not sufficiently attended to how these accounts differ from each other. We
have been misled by the fact that those relying upon divergent accounts nevertheless
use the same word “responsibility” to refer to very different things. This failure is
not benign. On the contrary, much depends upon on which view of responsibility we
adopt and deploy within our public discourse and institutions and which we invoke
when we understand ourselves as agents. To take but one example: Arendt and Jonas
think we have certain duties or responsibilities that derive not from particular roles
but from our humanity as such. Since their accounts do not derive responsibility
from a single role and do not prioritize motives and intentions, they impose a more
onerous responsibility on every human being than does the more limited legalistic
intentional agency approach. As I will argue in subsequent chapters, their approaches
require that we act, speak, and think responsibly at many points in our lives, not just
at moments when we are realizing some role or acting upon an intention that might
lead to the breaking of a law.
It is not apparent whether these various approaches can operate consistently in a
side by side fashion, nor whether we would even want them to do so. Neither is it
clear that either the legalistic Anglo-American or the modern European approach is
all that sound. Indeed, I will argue that we would do better to think of responsibility
along the lines Plato’s Socrates advanced twenty-five hundred years ago. The Socratic
approach is of interest not for nostalgic reasons but because it possesses resources that
may enable us to circumvent at least some of the problems bedeviling the traditional
Anglo-American and modern European understandings of responsibility. Socratic
responsibility does not depend upon perceiving possibly indiscernible intentions.
Nor does it rely upon a substantive, assumption-laden account of human nature or of
the human condition of the sort that Jonas and Arendt unilaterally posit. Since these
sorts of substantive accounts are increasingly difficult to defend in today’s highly
pluralistic cultures, Plato’s analysis of responsibility merits consideration.
Plato’s analysis, which grounds itself in ongoing dialogue motivated by a commit-
ment to avoiding wrongdoing, proves especially useful now when automation and
artificial intelligence (AI) are transforming the socio-economic order at a breathtak-
ing speed. AI systems are increasingly being deployed to do white collar as well as
blue collar work. Numerous business leaders are warning about looming job losses as
software programs perform deposition and exhibit analysis once done by paralegals
and accountants and as self-driving vehicles render truck drivers (the single largest
class of employees in the US) obsolete. This transformation is not magically occur-
ring by itself. Business leaders and engineers are driving this worrisome trend. Yet
they do not intend harm. Instead, they extol the benefits of machine labor—greater
accuracy, liberation of mankind from drudgery work, and reduced costs. What I term
the “technological imperative” is playing a part as well: engineers think that because
1.3 The Challenge and Dialogical Responsibility as a Response 5

they can do something new, they ought to do so. Obliviousness to ethical issues cou-
pled with an uncritical belief in engineering’s duty to help mankind “progress” appear
to be the drivers here—not malice. Consequently, focusing upon vicious intentions
or even upon role-violations will not get us very far in understanding what it might
mean for agents to behave responsibly in order to minimize potentially bad conse-
quences of a widespread adoption of AI. Acting responsibly must consist at least
in part in questioning ourselves and others about the meaning and goodness of our
technological activities and plans.
This major socio-economic transformation poses another challenge for under-
standing and encouraging responsibility. AI systems provide answers or recommen-
dations as a result of calculations that are so complex that not even the individual
who programmed the system can describe exactly how the algorithm used by the
system has arrived at these conclusions. In such cases, is the designer responsible
for the reaching this conclusion or recommendation? The AI system? Those who
decided to rely upon an algorithm to guide their decisions and to do the corporation’s
or institution’s work? Although the answer is not obvious, we clearly will need some
way in the not too distant future to regulate algorithmically-driven systems and to
evaluate their use and development ethically. Appropriate regulations will not be put
into place unless we start to pose hard and pointed questions to those who are pushing
AI.
The problem with AI has already occurred in a slightly different form with the
rise of bureaucracy in the government sector. In the late 1960s, Hannah Arendt was
presciently worried about
the latest and perhaps most formidable form of… dominion: bureaucracy or the rule of an
intricate system of bureaus in which no men, neither one nor the best, neither the few nor
the many, can be held responsible, and which could be properly called rule by Nobody. If, in
accord with traditional political thought, we identify tyranny as government that is not held
to give account of itself, rule by Nobody is clearly the most tyrannical of all, since there is
no one left who could even be asked to answer for what is being done. It is… impossible to
localize responsibility and to identify the enemy…. (Arendt 1970, 38-39)

Bureaucrats have begun using AI systems to allocate welfare and health benefits.
When pressed, governmental officials admit that they do not understand the pro-
gramming behind these allocations. They thus cannot explain to irate constituents
why their benefits have been altered. The bureaucratic rule by Nobody apparently
has found a perfect AI tool that also appears to embody a rule by Nobody.
Climate change, too, poses problems for traditional ways of thinking about respon-
sibility. No single person has intentionally caused increased carbon dioxide emis-
sions, rising ocean temperatures, intensifying storms, and so on. At a minimum, we
need an account that, unlike backward-looking criminal legal liability, looks to the
future. Given that we do not and cannot know exactly the unintended consequences
of our actions, including the outcomes of any attempts to ameliorate accelerating
climate change, we need an account of responsibility that is dynamic. Simply posit-
ing some new role responsibilities will not be helpful, because we do not know what
actions will be required of us. Even looking to human nature or the human condition
6 1 Why We Need a New (Old) Idea of Responsibility

may not prove that useful because these notions may not be sufficiently dynamic.
Socratic dialogical responsibility, by contrast, can fit the bill.
For all of these reasons, then, it is time, I believe, to return to the ancient Pla-
tonic concept of responsibility. This approach—as embodied in the activity of Plato’s
version of the philosopher Socrates—construes responsibility as acting from a partic-
ular form of self-knowledge and self-awareness. To the extent that we lack technical
knowledge of how best to act (a central Socratic tenet), we must turn inward instead.
At the same time, this practical approach allows the thinker to engage and assess
the outer world in a sustained and helpful fashion. Precisely because the Socratic
approach is energized by a person’s commitment to avoid acting unjustly and does
not revolve around alleged intentions or principles derived from an imputed human
nature or human condition, it is more flexible and adaptive than the other approaches
sketched above. In addition, because it does not equate being responsible with being
singled out as the primary cause of some event or action, it can counter (at least to
some degree) the rule by Nobody.

1.4 Two Goals of the Book

This short book has two goals. First, I want to present and to clarify several major
conceptions of responsibility that the West has found compelling, identifying both
their strengths and their considerable defects. Delineating these conceptions is valu-
able in itself, given that writers and thinkers have either mixed very different notions
of responsibility without being aware of having done so or have left this central idea
of responsibility largely undefined. Let me briefly support this claim with examples
from a field I know well—business ethics. In business ethics, many ethicists and prac-
titioners mention the notion of responsibility but do not bother to attempt to define
it. Freeman (1984), for example, notes that there are many different understandings
of corporate responsibility. But he does not tell us which apply to a manager’s sup-
posed responsibility to maximize stakeholder value. I would argue that a duty-based
conception of responsibility would seem to be inapplicable. The manager’s responsi-
bility cannot be a fiduciary duty in the traditional sense of that term. For if a manager
is responsible for maximizing value for a host of stakeholders, his or her focus is
much wider than that of traditional fiduciaries who owe their loyalties to a single,
well-defined class of clients (e.g., the doctor to the sick; the minister to the congre-
gants). Moreover, how does managerial responsibility differ from, or even relate to,
vendor and customer responsibilities toward the firm? In more general terms, what
is the ground or foundation of responsibility? Insofar as Evan and Freeman (1988)
stress that stakeholders have rights enshrined in laws and regulations, they seem to
conceive of managerial responsibility along legalistic lines and treat responsibility
as equivalent to accountability. Holding individuals accountable means subjecting
them to review by an external auditing party who enforces rules, norms, values and
duties and punishes any perceived violations. Yet, if leaders do not intend the wrong-
doing committed by their firms, or if they avoid violating the letter of the law, can
1.4 Two Goals of the Book 7

they justifiably evade responsibility? Evan and Freeman do not directly address these
sorts of questions.
In his oft-cited article on corporate social responsibility, Carroll (1979) lists mul-
tiple dimensions of responsibility—economic, legal, and ethical. Yet, like Freeman,
he never specifies what the term “responsibility” means. He seems to understand the
firm’s economic responsibilities as stemming from its role as an economic, produc-
tive entity. The firm’s legal responsibilities, by contrast, presumably derive from the
fact that a company is chartered by society to provide economic and social bene-
fits. The ethical responsibilities Carroll assigns to firms appear to consist in nothing
more than conforming to a given society’s social mores and norms at some point in
time. These are three divergent accounts of responsibility; and, given that a regime’s
laws and mores may be corrupt, the account is not well-grounded. Although Carroll
obligates the firm and managers to be responsive to social pressures, he provides no
guidelines or standards for evaluating when these pressures are ethically sound. In
addition, he offers no explanation of how an agent or manager acquires the mindset
needed to discharge these various responsibilities. The means-end thinking needed to
earn profits to fulfill the firm’s economic responsibility might prevent a manager from
thinking clearly about ethical responsibilities insofar as the latter requires systemic
discernment, not simply a strategy for earning cash. Might not managers have some
sort of responsibility to cultivate the appropriate discernment or virtue for addressing
all forms of responsibility? Carroll is silent on this point.
In his explication of the firm as a nexus of contracts, Keeley (1982) intimates that
the firm has but one ethical responsibility—to maximize the freedom of individuals
by respecting their right to enter into non-coercive contracts. Why, though, is the
firm on the hook to respect this right, even at the possible expense of other rights?
Is there truly a duty to maximize the freedom of all agents to pursue whatever they
deem to be in their interest, even if these parties are dangerously deluded? Although
murderers think that illegally killing someone is a good thing and in their inter-
ests, most communities prohibit murder and prosecute it as a crime. Once again the
proffered account of responsibility is curiously ungrounded, and the term woefully
underspecified. Space does not permit me to critique each of these accounts. Here I
simply want to stress that the exact nature of responsibility in and of itself has not
generally been rigorously examined by many applied ethicists, and their analyses
have suffered accordingly.
My second goal is to make the case that we would be better served if we were
to move away from a legalistic approach (which implicitly reduces responsibility to
assigned or imputed accountability or liability) and toward a way of thinking that
keeps the act of responding within responsibility. I lay out this case by successively
interpreting and criticizing influential Anglo-American and European treatments of
the concept of responsibility, showing that each of them winds up turning responsi-
bility into accountability assigned by some type of external auditor instead of asking
that each of us respond to ourselves as well as to others. Chapter 2 critically explicates
the Anglo-American intentional agency theory of responsibility with a special focus
on how responsibility is conceived of as imputed causality and accountability within
the criminal law. Chapter 3 takes up Hans Jonas’ ontological theory of responsibility.
8 1 Why We Need a New (Old) Idea of Responsibility

Although his theory has the advantage of encouraging a more systematic view of the
consequences of our actions, it still operates, in the final analysis, more as a theory
of accountability than of genuine responsibility. In Chapter 4, I consider in detail
Hannah Arendt’s account of what might be termed “communicative responsibility.”
Her approach helps us grasp how evil flourishes today even in the absence of wicked
or malicious intent. Her analysis, though, has some serious weaknesses, including a
lack of any workable ethical standard. Moreover, at key junctures, she, like Jonas,
falls back into a legalistic liability stance for assessing and imputing responsibility.
Having explored these three theories, I close by elucidating and defending Plato’s
Socratic approach—dialogical responsibility. This Platonic dialogical notion rooted
in not knowing what virtue is helps us to hold ourselves and others responsible for the
possibly horrific, yet unintended consequences, of our speech, policies, and actions
(e.g., the projected massive loss of jobs resulting from the widespread embrace of
artificial intelligence). By returning to this “old” notion of responsibility, we can
recover for ourselves an eminently useful, fresh—and, I think, more responsible—-
take on this key concept.

References

Arendt, Hannah. 1958. The Human Condition. Chicago: University of Chicago Press.
Arendt, Hannah. 1964. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin
Books.
Arendt, Hannah. 1970. On Violence. New York: Harcourt Brace Jovanovich.
Arendt, Hannah. 1971. Thinking and Moral Considerations: A Lecture. Social Research 38 (3):
417–446.
Carroll, Archie. 1979. A Three-Dimensional Conceptual Model of Corporate Social Performance.
Academy of Management Review 4 (4): 497–505.
Evan, William, and Freeman, R. Edward. 1988. A Stakeholder Theory of the Modern Corporation:
Kantian Capitalism. In Tom L. Beauchamp and Norman E. Bowie, eds., Ethical Theory and
Business. Englewood Cliffs, NJ: Prentice Hall, 97–106.
Freeman, R. Edward. 1984. Strategic Management: A Stakeholder Perspective. Boston: Pitman.
Friedman, Milton. 1970. The Social Responsibility of Business Is to Maximize Profits. New York
Times Magazine, September 13: 32–33, 122–124.
Jonas, Hans. 1984. The Imperative of Responsibility: In Search of an Ethics for the Technological
Age. Chicago: University of Chicago Press.
Keeley, Michael. 1982. Ethical Aspects of Organizational Governance: A Contractual View. Review
of Social Economy 40 (3): 375–392.
Koehn, Daryl. 1994. The Ground of Professional Ethics. New York: Routledge.
Chapter 2
Intentional Agency Responsibility
in the Anglo-American Legal Tradition

Under the common law, during its later development, criminal

intent was a necessary element of every crime … Robbery or
rape could not be committed without an evil design; and it
would be difficult to unknowingly engage in housebreaking. The
intent to burn was always essential to common-law arson.
—William Sloan

Abstract The idea of responsibility lies at the heart of the Anglo-American crimi-
nal legal system. Perpetrators are deemed responsible for wrongdoing if they can be
shown to have intentionally harmed other individuals. While this equating of respon-
sibility with intentional agency has some merits, it suffers from numerous serious
defects, including a limited applicability to the whole of human existence, an overly
optimistic assumption that we can unfailingly know another person’s intentions, and
a tendency to reduce responsibility to accountability.

2.1 Overview

In the West, discussions of responsibility frequently arise in connection with

duties, especially duties of office or professional duties. Within the Anglo-
American tradition, doctors, lawyers, and the clergy—the three oldest recognized
professions—have duties to their patients, clients, and congregants, respectively.
These duties are grounded in the nature of trust and in the professio or covenant bind-
ing the professional (May 2000). Under the terms of this covenant, the professionals
owe those who come into their presence service specified by the relevant covenant
(Koehn 1994; May 2000). Lawyers are bound to seek justice for their clients, doc-
tors health for their patients. Rabbis, ministers, priests, and other religious leaders
promote the salvation of their congregants. As I noted in the introduction, similar
reasoning has been applied to business managers—qua managers, they have a duty
to try to maximize legal profits, to foster stakeholder value, or to honor and promote
stakeholder freedom.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2019 9

D. Koehn, Toward a New (Old) Theory of Responsibility:
Moving beyond Accountability, SpringerBriefs in Ethics,
https://doi.org/10.1007/978-3-030-16737-0_2
10 2 Intentional Agency Responsibility in the Anglo-American …

The professional does not have to succeed in bringing about the aimed-for benefit
(e.g., health, etc.), because the benefit might not be realizable through the efforts
of the professional alone. Doctors cannot heal patients suffering from incurable
diseases, try as they might to do so. A minister or rabbi cannot effect another person’s
salvation. The professional does have a responsibility, though, to seek to fulfill his
or her covenantal duty.
This role-based approach to responsibility implicitly construes professionals as
intentional agents. They are held responsible for their self-directed and intended
actions aimed at realizing the specific good that they espouse and have covenanted
to pursue on behalf of the vulnerable parties whom they serve. A doctor who sets
out to maximize the fees she can charge her patients rather than to heal them may
be deemed to have acted irresponsibly or, equivalently, unprofessionally. In general,
within professional ethics, the possible role played by luck in the delivery of service
is minimized. Instead, the power and intentionality of professionals is foregrounded.
The notion of professional responsibility looms large within the history of Anglo-
American legal system. Not only lawyers but a host of other parties (judges, clerks,
etc.) are held to be responsible for their more or less professional actions. However,
when we move from professional responsibility to an analysis of the legal system’s
approach to responsibility, we immediately face a challenge. The scope of the law is
enormous, and the law has many functions, including providing constitutional foun-
dations for the operation of government, enunciating regulations, specifying which
behaviors can be punished or sanctioned, etc. The law’s functioning varies as well
from country to country. To keep this book’s discussion of contrasting approaches to
responsibility manageable, I have restricted my focus to how responsibility operates
within the domain of Anglo-American criminal law. While the law sometimes treats
responsibility prospectively (e.g., making agents responsible for executing certain
tasks), here I confine myself to cases where the criminal law deals with assigning
responsibility to defendants retrospectively. As we will see, this approach to respon-
sibility has some strengths but also many significant limitations.
In the criminal law, responsibility is closely tied to the intentional agency of those
whose acts are being judged.1 Responsibility tracks to causality, and intentions are a
key form of causes. The Anglo-American legal system generally does not hold crimi-
nally responsible those who accidentally cause some harm. The law considers instead
whether defendants knowingly and voluntarily performed a harmful deed (theft; mur-
der; treason). The central question is whether someone charged with murder knew
that killing is wrong, decided to act upon an intention he formed to kill someone,
and then did so. If and when these conditions for intentional, voluntary actions are
met, individuals can be held legally responsible and culpable for their deeds and can
justifiably be punished. In this respect, under the law, “what you deserve is a function
of what you choose” (Kessler quoted in Kadish 1993, 2191). It typically does not

1 The almost exclusive focus on agents’ intentions emerged relatively lately. Jurists and legal the-
orists writing from the sixteenth to the eighteenth centuries considered whether an individual had
acted with malice. Malice was equated with wickedness. Wickedness (which went beyond malice
aforethought or vicious intention) was interpreted in ways that were broad and malleable enough
to insure that the wicked could not evade legal punishment (Crofts 2013).
2.1 Overview 11

matter that our choices are at least partially subject to factors or forces that we have
not chosen or do not control. We “are in control …of our choices because they are
our choices—even though [our choices are] causally dependent on factors that are
themselves unchosen” (Moore 1984, 1147). The underlying assumption is that most
adults do not suffer from some impairment of their practical reasoning ability and,
therefore, can obey the law if and when they choose to do so. The legal approach to
responsibility presupposes that adults are “being[s] who act…for intelligible ends in
light of rational belief” (Dressler 1987, 63–64).
A prima facie punishable criminal case against a party requires both a voluntary
action (actus reus) and a guilty mind (mens rea). To use Kessler’s example: I may
wish you dead; I may intend to murder you; and you may in fact die, but if I do
not voluntarily do something to realize my murderous intention, I am not guilty of
murdering you. Or if someone else forcibly grabs my hand and makes me throw a
knife at you, thereby killing you, I still am not guilty of murder. For I did not vol-
untarily throw the knife. A voluntary deed by an individual—actus reus—is needed
in addition to a guilty mind to make a criminal case against that party. The rationale
for the act requirement is that acts, not thoughts alone, should be punished.2
The requirement for a guilty mind—mens rea—is sometimes justified on utili-
tarian grounds. The reasoning runs as follows: if we punish those who have acted
upon a criminal intention, then in the future these individuals and others will impute
a higher cost to the act of breaking the law and will be inclined to view the costs as
outweighing any benefits they might reap through theft, murder, etc. Mens rea is also
justified using retributivist arguments. Punishment is to be understood as a kind of
distinctively human “just desert” commensurate with the offender having intended
or chosen the criminal deed:
[R]ational beings are responsible for their behavior and so may properly be ”held account-
able” for what they do. We may feel gratitude when they behave well, and resentment when
they behave badly. Reward and punishment — not “training” or other manipulation — are
the natural expression of this gratitude and resentment. Thus in punishing people, we are
holding them responsible for their actions, in a way in which we cannot hold mere animals
responsible. We are responding to them not as people who are “sick” or who have no control
over themselves, but as people who have freely chosen their evil deeds. (Rachels 1986, 123)

Defenders of the legal system’s intentional approach to responsibility go out of

their way to minimize the importance of luck and its relevance to determinations
of responsibility. They insist that responsibility should depend not on luck but only
on intention, on the “inner world of the mind” (Feinberg 1970, 25). This stance
is not surprising, given that the legal system holds us responsible for our actions.
Although we do not control all dimensions of our existence, we can and do form
our intentions. If anything makes a deed ours, surely—defenders of this approach
contend—it must be our intention to perform that deed. Therefore, if an agent intends
some result—harmful or beneficial—, he or she should be held responsible for that
action.

2 For more on the act requirement, see Moore (2010), 45–49.

12 2 Intentional Agency Responsibility in the Anglo-American …

In fact, some intentional agency responsibility theorists contend that the practice
of lessening punishment when an intended harm happens not to occur is not justifiable
“by any defensible normative principle” (Kadish 1994, 680). Consequently, when
“the nonoccurrence of harm is purely fortuitous,” the punishment should not be
lessened (Becker 1974, 262–263). This line of reasoning is especially germane when
agents knowingly set out to hurt the interests of others. For those who intend harm
remain a social menace, regardless of whether they have been able to realize their
intention to harm another. Given that “what happens after one has made a free decision
is … up to nature, then these events are strictly dispensable in the assessment of moral
responsibility” (Zimmerman 1987, 385). In other words, “it is false that results are
generally relevant to either one’s blameworthiness or his punishability” (Parker 1984,
269–270). For at least some legal theorists, “moral responsibility is … restricted to
the inner world of the mind, where … luck has no place” (Feinberg 1970, 32).3
The desire to tie responsibility and culpability to intentions is not unique to legal
theorists. The law itself reflects the same desire. This desire is evident in the legal
doctrine of transferred intent. Consider the following scenario: Juan shoots at Mario,
intending to kill him. However, the bullet goes astray due to a sudden gust of wind.
Juan instead kills the bystander Alicia. Although Juan never intended to kill Alicia,
Juan nevertheless has by and large been held by courts to be guilty of murdering
her. To deal with this kind of case, the courts have evolved the notion that intention
“follows the bullet”. Under the Model Penal Code:
2) When purposely or knowingly causing a particular result is an element of an offence, the
element is not established if the actual result is not within the purpose or the contemplation
of the actors unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only
in the respect that a different person or different property is injured or affected or that the
injury or harm designed or contemplated would have been more serious or more extensive
than that caused….(Model Penal Code §2.03(2)(a))

In People v. Ramon Birrueta, the court enunciated the principle behind this doctrine
of transferred intent:
The function of the transferred intent doctrine is to insure the adequate punishment of those
who accidentally kill innocent bystanders, while failing to kill their intended victims. But
for the transferred intent doctrine, such people could escape punishment for murder, even
though they deliberately and premeditatedly killed—because of their “lucky” mistake. The
transferred intent doctrine is born of the sound judicial intuition that such a defendant is no
less culpable than a murderer whose aim is good. (Court of Appeals of California 1984, sec.
IV)

This court ruling shows quite clearly the proclivity the legal system has for tying
responsibility and assigned guilt to intention. The actual results brought about by
an agent’s actions are less important than the driving intention or design when it
comes to holding individuals accountable; consequently, the intention must follow
the bullet so that “adequate punishment” can be imposed.

3 See also Gross (1979), 423–424.

2.2 Strengths of the Intentional Agency Approach 13

2.2 Strengths of the Intentional Agency Approach

1. Provides a Practicable Basis for Meting Out Punishment

This legal approach to responsibility, while bedeviled with problems (see below),
does have one significant advantage. It provides an actionable basis for assigning
guilt and punishment to those individuals thought to threaten the safety and welfare
of others. Insofar as physical security is an aspect of living a happy life; and insofar
as each of us desires happiness, this ability should be deemed a not insignificant
ethical strength. While knowing individuals’ motives might serve to solidify a case
against the accused, the legal system does not require that we correctly grasp others’
motives understood as agents’ ultimate purposes. Instead, it requires only that we are
able to ascertain whether particular individuals intentionally caused some deed—i.e.,
whether they originated some specific, voluntary action by acting upon an intention
(regardless of why they formed that intention). Having made that determination,
society can take steps to incarcerate individuals deemed to be social menaces.
Insofar as this approach treats individuals as acting voluntarily, it respects the fact
of human freedom. It does not punish wicked thoughts, but only intended actions
that violate laws against theft, murder, treason, and so on. Neither does it punish
individuals who were not able to choose their actions. The law allows certain excus-
es—e.g., insanity or coercion—to mitigate guilt. In these respects, the legal approach
can be seen as a system that tries to provide mentally competent individuals with
reasons to choose to act in socially desirable ways. If we take responsibility at its
core to be linked with freedom, this respect for reasoned choice may be counted a
strength of the approach. I will return to the possible connection between freedom
and responsibility in the concluding chapter.
2. Understands that Responsibility Cannot Simply Be “Read off” from the Facts
Feinberg (1970) has observed that some thinkers treat moral responsibility as being
determined by rules that are in no way vague. The moralist will insist that “moral
responsibility must be read off the facts of deduced from them; there can be no
irreducible element of discretion for the judge, if his judgments are to have the
stamp of superior rationality.” Moral responsibility, at least according some moralists,
must “in principle be precisely decidable” (italics mine) (Feinberg 1970, 28). Legal
responsibility, by contrast, is inevitably—Feinberg insists—more pragmatic. While
it bases itself upon intentional agency, it always recognizes that a defendant only
contributes to some outcomes. There are always other contributory factors that the
law ignores for its various purposes of imposing punishment or setting damages.
In a famous case, a defendant slapped someone who was not known to be a
hemophiliac. The victim bled to death from a small cut caused by the slap. The
assaulter, who did intend injury (though not death), was judged to be liable for this
death and was punished for manslaughter, even though many people are hit or slapped
every day by people who are not held to be criminally responsible. From the point
of view of some moralists, this legal judgment seems unjustly arbitrary. Yet, to be
practicable, the law cannot go too far in allowing unsuspected or unusual features of
14 2 Intentional Agency Responsibility in the Anglo-American …

the situation or traits (e.g., hemophilia) of the victim to sway determinations of guilt
and liability. To do so would make a hash of the law.
While the law’s approach can certainly be criticized, I would argue that legal
theorists deserve some credit for their honesty concerning the pragmatic need to
limit our focus when rendering judgments within the criminal justice system. After
all, moral judgments, too, frequently involve a narrowing of our focus. As with
the legal approach, which factors are considered important in a moral ascription of
responsibility inevitably depends upon the definitions, purposes, policies, concepts,
and beliefs at play when the ascription is made. We rarely, if ever, can ascertain
moral responsibility simply by looking at the facts of the case and applying some
rule. As Aristotle notes, each of us acts in a world where unexpected things happen
(Aristotle 1975). To what extent agents should be held responsible for unexpected or
unforeseeable consequences is a matter for debate that cannot be adjudicated merely
by reference to situational facts. Nor does ethics reduce to inner purity. Whether
we are virtuous or vicious, moral or immoral, depends upon how we interact with
the external world. As I will argue in Chap. 5, Plato’s Socrates realizes that our
ascriptions of responsibility depend upon how we understand the human person, the
extent of our ignorance, and the nature of ethical knowledge in general. We cannot
justly assess whether someone is behaving responsibly or should be punished merely
by referring to some supposed facts and then subsuming them under a rule.
The same general point applies when we think about the role of character in
ascriptions of responsibility. For a virtue ethicist like Aristotle, our habits become
a second nature (Aristotle 1975). Habits play a causal role in our actions insofar as
they decisively influence how we interpret the world around us and our own agency.
Let us assume along with Feinberg that the slapper in the case mentioned above
was unjust and unduly irritable (Feinberg 1970). His character was such that he was
always spoiling for a fight. When the hemophiliac victim said something that irritated
him, he lashed out in rage. So we can say that habit, as well as his intentions, played
a causal role in the case at hand. However, we might still debate to what extent
habit contributed in this particular case. Perhaps, as Feinberg provocatively posits,
the slapper also had “a slightly abnormal disposition to strong anger attributable to
a hyperactive adrenal system [and a]…stomach disorder sufficiently disagreeable
to put him on edge and weaken his self-control…[when confronted with] highly
provocative and deliberately abusive remarks” made by his victim (Feinberg 1970,
36). Parsing the extent to which habit (and not these other contributory factors) should
be treated as causing the slapping is going to require considerable discernment and
judgment and may well involve pragmatic considerations. Accountability within
ethics (as in the law) is always determined through judgment affected by practical
policies and goals and overriding value commitments on the part of the judging agent.
It is not something that unproblematically simply falls out from the consideration
of facts. The legal approach to responsibility admits as much and concedes that
pragmatism shapes its conception of responsibility. Insofar as we as citizens think that
our happiness depends upon a functioning legal system, this concession is arguably
ethically justifiable.
2.3 Weaknesses of the Intentional Agency Approach 15

2.3 Weaknesses of the Intentional Agency Approach

The strengths of this approach are not insignificant. However, the intentional agency
approach to assessing and assigning responsibility gives rise to a host of serious
problems.
1. Ascertaining a Person’s Intention Is Notoriously Difficult
Kant (1964) famously rejected basing our moral judgments upon presumed knowl-
edge of another’s intentions. He thought such intentions are unknowable. Unlike
Aristotle and Plato and other ancient thinkers before him, Kant denied that virtue,
vice, sin, moral evil, and moral goodness are expressed aesthetically in a form that can
be perceived and identified by other agents. Instead, Kant stipulates that we should
consider first the maxim or principle (which can be ascertained) that characterizes an
agent’s proposed or completed action and then examine whether the agent’s maxim
can be universalized. Only those actions with universalizable maxims or principles
of action are morally permissible.
Sigmund Freud, while not categorically denying the knowability of an agent’s
intentions, was cautious about imputing intentions to anyone whom he himself had
not psychoanalyzed. We human beings are both adept and cunning when it comes to
disguising our intentions and even hiding them from ourselves (Rottenberg 2017).
Furthermore, it is the patient, not the analyst, who must, in the final analysis (as
the demotic expression would have it), identify his or her intentions. Psychoanalysts
may probe. They may raise questions and pose doubts. But they do so only with a
view to encouraging and perhaps challenging patients to arrive at their own insights.
This reluctance to presume to know another’s intentions even pervades America’s
founding documents. The authors of The Federalist Papers took pains to distinguish
between reasons for some position and the possible intentions behind the mounting
of a defense of this position:
In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting
you upon your guard against all attempts, from whatever quarter, to influence your decision
in a matter of the utmost moment to your welfare, by any impressions other than those
which may result from the evidence of truth. You will, no doubt, at the same time, have
collected from the general scope of them, that they proceed from a source not unfriendly
to the new Constitution. Yes, my countrymen, I own to you that, after having given it an
attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced
that this is the safest course for your liberty, your dignity, and your happiness … I frankly
acknowledge to you my convictions, and I will freely lay before you the reasons on which
they are founded. The consciousness of good intentions disdains ambiguity. I shall not,
however, multiply professions on this head. My motives must remain in the depository of my
own breast. My arguments will be open to all, and may be judged of by all (italics mine).
(Federalist Paper No. 1, The Avalon Project http://avalon.law.yale.edu/18th_century/fed01.
asp)

America’s founding fathers were leery of basing political discourse on imputed inten-
tions that may have no basis in fact. Instead, political discourse should be structured
around publicly stated and debatable reasons for positions or stances.
16 2 Intentional Agency Responsibility in the Anglo-American …

Yet the criminal law’s mens rea approach to responsibility assumes and presumes
that the intentions of others are knowable and can fairly be imputed to them. It is
true that in some cases intentions would seem to be directly discernible. A would-be
murderer may announce to her victim in the presence of credible witnesses: “I am
going to kill you” and then proceed to murder the designated victim. In some cases,
an announcement of an intent to commit a crime may have been captured on phone
recordings. In other cases, an intention may be inferred through what a defendant
does. If the would-be murderer buys a gun, tracks down the victim, and shoots him,
the prosecution may reasonably argue that the defendant intended to murder that
particular party.
Nevertheless, matters often are not so clear. We all form intentions upon which we
do not act. Some factor may interfere with our ability to carry out a plan before we
get very far with it. Or we may change our mind. Or we may have been ambivalent
all along. Consequently, what a witness may hear a defendant announce as an intent
does not prove that the defendant will act or has acted upon that intent. Context
matters as well. Perhaps what the witness heard was an actor rehearsing a scene with
the “victim” from a murder mystery play in which both are appearing. As if these
issues were not serious enough, defendants now routinely confess to acts that they
did not perform as part of the plea-bargaining process. If I confess to stealing your
stereo, I must have had an intention to burgle you. But if I committed some other
crime (e.g., I impersonated you to get a loan) but have admitted to the stereo theft as
part of a plea bargain, the notion that I had a guilty mind when performing the deed
for which the court is holding me accountable becomes hugely problematic. Or, if
I have committed no crime whatsoever but fear being found guilty anyway, I may
reluctantly agree to a plea bargain to avoid a lengthy prison sentence and to remain
eligible for parole. In these kinds of cases, entirely innocent persons will be found
to have acted with guilty minds.
2. Does Not Apply to Many Determinants of Ethical Behavior
Tying responsibility to intentions also complicates efforts to hold corporations crim-
inally accountable for their deeds. If the corporation is guilty, then it must have a
guilty mind. Even granting that in some cases we might be able to find clearcut evi-
dence of wicked intentions on the part of particular managers or executives, locating
a single mind and intention in the corporation as such will be challenging. Much
ink has been spilt by business ethicists on the issue of whether a corporation may
legitimately be deemed a person and be held to be responsible for its actions as a
“legal person”. The question is far from resolved. However, I think a fair number
of ethicists would agree that corporate cultures may be more or less ethically sound
and frequently play a role in causing behaviors. Every corporate culture has a wide
array of dimensions. Culture includes the tone at the top, the firm’s history, favorite
employee narratives or stories, symbolism used within the firm and in its advertising,
its preferred strategies, and so forth. A corporate culture clearly does not boil down
to a single intention, be that virtuous or vicious. To the extent that culture is a major
contributory factor in determining what a firm and/or its leaders do, a legal notion of
responsibility that hinges upon intentionality will be difficult to apply.
2.3 Weaknesses of the Intentional Agency Approach 17

A similar point applies to other more structural determinants of behavior within

corporations—e.g., reward and incentive systems at a given firm, the type of lead-
ership exhibited by those at the top, and the nature and strength of regulatory and
legal institutions in which a corporation operates. We often will want to evaluate the
effects of all of these factors on employee behavior, but to incorporate them into any
analysis of responsibility will require that we look beyond individual intentionality.
3. Ignores Strategies Used to Establish Plausible Deniability
In general, moral responsibility attaches to agents only when they know what is going
on. Those who are ignorant cannot be blamed for causing harm (Velasquez 1988).
Consequently, some executives or others in leadership positions may seek to avoid
responsibility for destructive actions of their institutions and subordinates by setting
up situations of plausible deniability. Plausible deniability refers to agents’ ability
to insulate themselves from any blame attaching to the consequences of policies or
actions they initiate by distancing themselves from these things so that they can plead
that they were in the dark about any possible wrongdoing. Senior executives may try to
create this distance by delegating certain decisions to one or more junior individuals
in the organization. If they can avoid getting reports from these junior or middle
managers, then these executives can remain willfully ignorant of any problematic or
harmful effects of these decisions. Those at the pinnacle of the hierarchy become a
“Teflon top,” a layer to which no blame or punishment adheres (Chertoff et al. 2003),
even when C-suite executives have exerted considerable pressure on subordinates to
make financial targets and have then turned a blind eye to how profits were actually
made. Perhaps some executives and boards even set out to create plausible deniability.
Already in the 19th century, Charles Babbage saw the value of placing “a few simple
honest men” on a committee. For whenever “a peculiarly delicate question [arose],”
the honest man could be asked to leave the room. This individual could subsequently
“declare truly, if necessary, that he never was present at any meeting at which even
a questionable course had been proposed” (Babbage 1989, 195).
In other cases, distancing is achieved through the use of euphemisms. During the
Penn State sexual abuse crisis stemming from assistant coach Jerry Sandusky’s rape
of minors, those who reported their concerns up the chain of command apparently
spoke about witnessing Sandusky in the showers with a boy. Superiors with a role
responsibility for addressing this report were able to minimize their need to act to stop
assaults on children because, after all, “horsing around” or simply being “with a boy”
in a shower sounds far less serious than raping a minor. Penn State officials simply
recommended banning “guests” from the locker room. By deploying euphemisms,
neither those reporting up the chain of the command nor top officials had to admit to
themselves or to the police that one of Penn State’s admired football coaches might
be a sexual predator (Lukas and Fyke 2014). They could sweep what others told
them under the linguistic carpet and then forget about it.
Fragmenting of jobs enables plausible deniability as well. When executives assign
junior architects or lawyers to work on some portion of a massive project, the lower
level employees may never grasp what the whole is of which they are but a small part
(Luban et al. 1992). Ignorant of the larger project, such employees are by definition
18 2 Intentional Agency Responsibility in the Anglo-American …

distant from ethical dimensions of that effort. Executives are protected in these cases
because junior employees who do not understand the big picture usually are not able
to blow the whistle on wrongdoing connected with the project as a whole.
In all of these cases, executives and even employees lower in the organizational
hierarchy are able to claim plausibly that they had no knowledge of any moral wrong-
doing. Given that they were ignorant of what was being done, they could hardly have
intended any harmful consequences of the action in question. Many business execu-
tives have avoided criminal prosecution precisely because prosecutors have not been
able to establish that they knew about alleged wrongdoing and, therefore, have been
unable to meet the mens rea requirement for criminal conviction.
4. Fails to Assign Responsibility in Some Cases
The legal system has only a very limited ability to ascertain and assign responsibility.
As one of the novelist Michael Gilbert’s characters puts it, “The procedure of a crim-
inal trial was singularly ill-adapted for the bringing out of the truth about any crime.
It was shaped and constituted to one end alone: to show whether or not a particular
person was guilty. This end it achieved admirably. But it could not be pushed beyond
its function” (Gilbert 1978, 218). To put the point slightly differently: as a society, we
have an interest in having all members of the community act responsibly. The most
that the legal system can accomplish, however, is to make a determination regarding
one party’s responsibility or the culpability of a few. If the accused is acquitted, we
can say that he or she was not found to be responsible for the alleged criminal deed.
But we cannot say who, in fact, was responsible for the problematic deed. In fact,
even if the prosecutor and defense counsel begin to suspect that they know who is
responsible but that person has not been charged with the crime, these suspicions
generally cannot be brought to light and pursued within a given trial in progress. In
that respect, Gilbert’s fictional attorney speaks the truth when he notes the limiting
conditions operative in every criminal trial.
Since every democratic institution is limited in its scope, I am not impugning the
legitimacy of the criminal justice system. I am arguing, however, that we should not
lose sight of the narrowness of this system’s understanding of responsibility. If we
want a more comprehensively applicable notion of responsibility, we must cast our
net wider, considering other conceptions of responsibility of the sort examined in
subsequent chapters.
5. Ignores Role Luck Plays in Culpability
Another inherent limitation of the intentional agency approach to responsibility arises
in connection with the phenomenon of luck. As I noted above, a number of legal
theorists contend that luck, which affects the outcome of someone’s action, should
not factor at all into whether that agent is to be held responsible for the intended
action. On their view, judges should focus exclusively on a given agent’s intentions.
Courts, though, sometimes implicitly or explicitly consider luck-affected results of an
action, not only the intention behind the action. For example, courts have consistently
honored the distinction between an attempt and a successful attempt at performing
some criminalized deed. If John intends to kill Patrick but fails to do because a bird
2.3 Weaknesses of the Intentional Agency Approach 19

strikes John’s pistol at the moment of firing, John will be charged with attempted
murder rather than with murder. In general, courts punish a murder more harshly
because the successful murderer is seen as more culpable than the individual who
only attempted to murder someone. Why have the courts gone this route? Why
have they not treated all knowing and intentional attempts at murder as equivalent,
regardless of whether the agent succeeded in killing the intended victim or not?
The question points to a genuine puzzle. On the one hand, courts have tended to
make mens rea dispositive precisely because they did not want to have a criminal
conviction and sentencing turn on a fortuitous matter such as the flight of a passing
bird. Yet, with respect to a case like John’s, they appear to be willing to let luck
matter. Why do courts allow pure luck—the passing bird’s flight—to diminish John’s
responsibility? I would offer a hypothesis along the following lines. Most people think
that a failed or aborted attempt at something differs from a successfully completed
one. We do not generally think that moral culpability and responsibility can be
evaluated properly by focusing on intention alone and ignoring what actually occurs.
Let us begin with a non-criminal example. Julie may intend to cheat (for the first
time) on her husband Max with co-worker Pierre. She may have formed detailed
plans to do so. Nevertheless, at the last minute, she chooses not to go through with
her adulterous plan because she thinks Max will be devastated if he were to learn
of her betrayal. Or, perhaps just as Julie and Pierre are about to enter their rented
motel room, Julie sees her and Max’s daughter ride by on a bicycle. Overcome with
a sense of guilt, Julie declares to Pierre, “I can’t go through with this.” I think most
of Julie’s peers would be reluctant to see her as an adulteress precisely because she
never actually has sex with Pierre, despite having previously formed an intention to
do so and despite even having gone so far as to rendezvous with Pierre at a motel.
Introducing luck rather than an altered mentality or intention as a determinant of
the aborted deed does not change our judgment that Julie is not an adulteress. Let
us suppose the lock to the rented motel room turns out to be broken. Consequently,
Julie and Pierre find that they cannot get into the room and so decide to go their
separate ways. While the Bible treats lust in the heart as equivalent to an adulterous
act, most of Julie’s peers, I submit, would not judge Julie to be an adulteress, even if
she initially intended to break her marriage vows and was prevented from doing so
merely by luck. Perhaps we are inclined to cut Julie some slack because so many of
us have been moved by passions and have been tempted to perform acts that would
injure others but then have refrained from actually doing so. We have not harmed
anyone, and so we believe that we do not deserve to be judged to have actually
committed the deed in question.
This commonplace and commonsensical way of thinking about lesser peccadil-
loes conceivably extends to criminal behavior as well. Looking at the annals of the
criminal law, we find that courts, too, have consistently focused on actual harm—ac-
tus reus—as well as upon mens rea. Citing the doctrine of impossible harm, courts
have refused to punish deeds when these deeds could not possibly have harmed a
party. In one case, a judge refused to convict a hunter of attempting to take a deer out
of season when the “deer” the hunter shot at turned out to be merely a dummy rigged
up by a game warden. Since the animal shot at was not real, inflicting any real dam-
20 2 Intentional Agency Responsibility in the Anglo-American …

age to another’s property was impossible (Kadish 1994). Although this impossible
harm doctrine is now a minority view, its long history shows that the commonsen-
sical insistence upon actual harm has been a recurring theme in criminal law and
continues to have its defenders (Kadish 1994).
If we were adopt some legal scholars’ bold argument that culpability should not
depend upon agents’ results (which might have been determined in part by luck)
but turn only upon mens rea, then the general public might legitimately worry that
we will wind up imprisoning many people who have not actually harmed anyone or
who have hurt others far less than the mens rea approach would suggest. To return
to the earlier example: I am not denying that the attempted murderer John harms his
intended victim Patrick. No doubt Patrick was understandably terrified when John
aimed his gun at Patrick and then fired. Since John tried to murder him once, Patrick
and the rest of the community may reasonably worry that John is so wicked that
he may try again if he is not taken off the streets. Thus, we may still hold John
responsible and imprison him for attempted murder. Nevertheless, we do not punish
him as harshly as an actual murderer for the simple but crucially important reason
that John did not consummate the killing any more than Julie had sex with Max.
Most people would take scaring Patrick to be less harmful than killing him.
To eliminate the distinction between an attempted deed (attempted theft, mur-
der, etc.) and a successfully accomplished deed (theft, murder, etc.) might result, as
Ashworth (1988) has suggested, in an increase in jury nullifications. I would adduce
another pragmatic and logical concern. We typically discover criminal deeds through
what people do. Intentions—Feinberg’s “inner world of the mind”—enter the evi-
dentiary world through some kind of practical result. The intentional agency model
of responsibility, if applied with no attention to results, drifts toward incoherence.
It tries to establish culpability by talking about crimes that we know about only
through deeds and then turns around and denies the importance of deeds and actual
results and harms on the ground that these are subject to luck and contingency. In this
respect, an intention-only mens rea model tends to make deeds vanish. If deeds were
to disappear from the account, then the police would no longer need to undertake
an investigation to turn up evidence left by an actual deed. All they would have to
do is impute an intention to someone and make an arrest. While the courts have, by
and large, distinguished between attempted and successful crimes, the intentional
agency approach embedded throughout the criminal law continually threatens to
collapse that distinction. If it is neither viable nor desirable to rely upon a deed-less
theory that asks us to entirely ignore the role of luck and contingency when it comes
to identifying and punishing criminals, then such approach is not well-equipped to
function as a general theory of moral responsibility.
6. Cannot Grapple Well with the Ever Expanding Notion of Harm
This last comment brings me to a sixth concern. Until relatively recently, Anglo-
American law has adopted a more or less classically liberal approach in its assignment
of responsibility, relying upon what is termed “the principle of harm.” Mill (1978)
articulates a version of this principle when he contends that only those actions that
truly harm others in some direct, specifiable manner should be prohibited and pun-
2.3 Weaknesses of the Intentional Agency Approach 21

ished. Mill’s true harms are to be distinguished from actions or behaviors that some
people, or even a majority of citizens, find morally offensive or reprehensible. In
general, as long as individuals’ behavior does not genuinely injure others’ interests,
then a liberal legal system does not criminalize this behavior. We let these persons do
as they please and refrain from attempting to legislate morality and from prosecuting
moral offenses.
However, over the last forty years, defenders of morality have shifted their ground,
dropping the moral argument and invoking harm. For example, the Chicago “Vote
Yourself Dry” movement concentrated on the social harms caused by having liquor
stores in the neighborhood. As then Mayor Daley reportedly proclaimed, “This is
a quality of life issue, not an attempt to impose prohibition” (Daley quoted in Har-
court 1999, 110). An analogous shifting of ground from violations of moral norms
to alleged harms has occurred in relation to the closing of gay bathhouses, in con-
nection with pornography, and in the push to enforce laws against public urination,
panhandling, loitering, and a host of other perceived ills. These were once decried
as being offenses against morality but are now portrayed as actions harming others
and thus as deserving of punishment by the state.
This expansion of the idea of harm means that the harm principle can no longer
function as a critical principle distinguishing the realm of legitimately regulable,
prosecutable behavior from a private sphere in which people should be free to do
as they choose, regardless of whether others find this behavior morally repugnant or
offensive. Today “the issue is no longer whether a moral offense causes harm but
rather what type and what amount of harms the challenged conduct causes, and how
these harms compare. On those issues, the harm principle is silent” (Harcourt 1999,
113).
The expansion of the harm principle raises a concern with relying upon the inten-
tional agency approach to responsibility. As we have seen, this approach seeks to
hold people accountable because they intended harm to others. But, given that many
of our actions may offend someone; and given that offenses against mores are being
re-characterized as harmful, we currently are prosecuting individuals whose behav-
ior in past eras would have been viewed as offensive but not criminally culpable.
Insofar as the harm principle in and of itself cannot distinguish among degrees of
harm, it is far from clear what critical principle should be used within the legal system
to make this distinction of degrees. Letting judges arbitrarily assign responsibility
would seem to be the antithesis of a just rule of law, which is often lauded precisely
because it is predictable in its operation. If and when the population sees the applica-
tion and enforcement of the law as arbitrary, their support for the law declines over
time. That disappearance of support poses its own obvious dangers.
7. Reduces Responsibility to Individual Liability and Accountability
Even if all of the above issues could somehow be addressed and resolved, the inten-
tional agency conception of responsibility would still be woefully inadequate. The
concept is simply too narrow to help us come to grips with the nature and extent
of responsibility. Indeed, the legal approach reduces responsibility to accountability
and therein lies its biggest weakness.
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146 feet by 22 feet, with a capacity for 15,600 eggs at a setting, and space to
double the number.

SPROUTED OATS CELLAR

With capacity for sprouting 100 bushels of oats at a time.
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Also giving access by inside stairway to Brooder House.
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Opening into Sprouted Oats Cellar, and by stairway up to Brooder House.

THE CORNING LAYING HOUSE

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Showing the draught-proof roosting closets, and arrangement of nests, drinking
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Showing method of raising perches while cleaning dropping board.
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Showing outside half wire door and solid interior door with observation window.
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 CORNING VENTILATOR
Showing full details of construction. Used in Laying House.
 GRIT, SHELL AND ASH HOPPER

CORNING COLONY HOUSE

The Cotton Duck Windows when hooked up forming awnings.
 SIDE ELEVATION DETAIL OF WINDOW FRAME

FLOOR OF COLONY HOUSE

Showing skids, and brace construction. Also Storm Trench.
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DETAILS OF LAYING HOUSE WINDOW,

Showing Handy Button Fastener.
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CATCHING HOOK
 PRESS OF
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 Transcriber’s Notes
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“It’s “Strain” You Want”) are printed in the middle
of the text paragraph.
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