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Published online by Cambridge University Press: 23 June 2016
Suppose someone (P1) does something that is wrongful only in virtue of the risk that it will enable another person (P2) to commit a wrongdoing. Suppose further that P1’s conduct does indeed turn out to enable P2’s wrongdoing. The resulting wrong is agentially mediated: P1 is an enabling agent and P2 is an intervening agent. Whereas the literature on intervening agency focuses on whether P2’s status as an intervening agent makes P1’s conduct less bad, I turn this issue on its head by investigating whether P1’s status as an enabling agent makes P2’s conduct more bad. I argue that it does: P2 wrongs not just the victims of φ but P1 as well, by acting in a way that wrongfully makes P1 accountable for φ. This has serious implications for compensatory and defensive liability in cases of agentially mediated wrongs.
1 This view was held by Scotus, Duns (J. F. Ross and T. Bates, ‘Duns Scotus on Natural Theology’, The Cambridge Companion to Duns Scotus, ed. Williams, T. (New York, 2002), pp. 193–237 Google Scholar, at 222) and by Sartre, Jean-Paul (Being and Nothingness (Washington, 1993), pp. 567–8)Google Scholar. They would deny that P1 contributes to φ.
2 See, for example Hart, H. L. A. and Honoré, Tony, Causation in the Law, 2nd edn. (Oxford, 1958)Google Scholar; Kadish, Sanford, ‘Complicity, Cause and Blame’, California Law Review 73 (1985), pp. 323–410 Google Scholar; Zimmerman, Michael, ‘Intervening Agents and Moral Responsibility’, The Philosophical Quarterly 35 (1985), pp. 347–58CrossRefGoogle Scholar; Hurd, Heidi, ‘Is it Wrong to Do Right When Others Do Wrong?’, Legal Theory 7 (2001), pp. 307–40CrossRefGoogle Scholar; and Moore, Michael S. (Moore, M. S., Causation and Responsibility (New York 2009)CrossRefGoogle Scholar.
3 Sanford H. Kadish, ‘Reckless Complicity’, The Journal of Criminal Law and Criminology (1997), p. 393.
4 Scheffler, Samuel, The Rejection of Consequentialism (Oxford, 1982), p. 112 Google Scholar.
5 Hart and Honoré, Causation in the Law, pp. 42-3. Kadish similarly argues that in criminal law ‘voluntary actions cannot be said to be caused’ (Kadish, ‘Complicity, Cause and Blame’, p. 371).
6 See especially Moore, Michael S., ‘The Metaphysics of Causal Intervention’, California Law Review 88 (2000), pp. 827–78CrossRefGoogle Scholar.
7 Kadish, ‘Reckless Complicity’, p. 381.
8 I owe this example to a referee at Utilitas.
9 This account of liability is developed by Jeff McMahan. See especially: McMahan, Jeff, ‘The Basis of Moral Liability to Defensive Killing’, Philosophical Issues 15 (2005), pp. 386–405 CrossRefGoogle Scholar; McMahan, , Killing in War (New York, 2009)CrossRefGoogle Scholar; McMahan, , ‘ The Conditions of Liability to Preventive Attack ’, Gathering Threats: The Ethics of Preventive War, ed. Chatterjee, Deen K. (Cambridge, 2012), pp. 121–44Google Scholar. It is disputed, though, whether necessity is internal to liability, i.e. whether an individual can be liable to a harm even if there are less harmful means to preventing the harm for which the agent is liable. For discussion, see Quong, Jonathan and Firth, Joanna (J. Quong and J. Firth, ‘Necessity, Moral Liability, and Defensive Harm’, Law and Philosophy 31 (2012), pp. 673–701)Google Scholar. Helen Frowe in particular argues that necessity is not internal to liability ( Frowe, Helen, Defensive Killing (Oxford, 2015), pp. 91–4)Google Scholar.
10 McMahan developed the notion of potential liability (which can be usefully distinguished from actual liability). See McMahan, Killing in War, pp. 21--2.
11 Nagel, Thomas, ‘The Value of Inviolability’, Morality and Self-Interest, ed. Bloomfield, Paul (Oxford, 2007), pp. 102–16, at 108CrossRefGoogle Scholar.
12 Nagel, ‘The Value of Inviolability’, p. 112.
13 This distinction belongs to McMahan, Jeff, ‘Liability, Proportionality, and the Number of Aggressors’, Ethics of War, ed. Bazargan-Forward, S. and Rickless, S. (New York, [forthcoming])Google Scholar.
14 The distinction between narrow and wide proportionality was first developed by McMahan. See McMahan, Killing in War, p. 20.
15 I thank Samuel Rickless for invaluable comments on an earlier version of this article. I presented an earlier version at the Rocky Mountain Ethics Congress, from which I received very helpful feedback. I am also grateful for helpful comments from an anonymous referee at Utilitas. I reserve my highest thanks for Craig Agule, who as my research assistant provided tremendous help on an earlier version of this article.
