Abstract
This chapter addresses complicity as a question of individual responsibility—the primary mode in which complicity matters in criminal-law contexts. There is a rich legal-doctrinal and philosophical literature on when participation in some wrongful endeavor gives rise to individual responsibility. The chapter draws on some of these works to identify the ethical basis on which one person can, by reason of something s/he has said or done, be considered responsible for some wrong that another person has committed. Rejecting the view that complicity should be approached as essentially a question of causality, the chapter argues that different bases of responsibility-ascription apply in situations where persons act together with, through, or merely alongside another. In consequence, different principles of responsibility-ascription for harmful outcomes govern cases where significant discrepancies exist between what each of the parties thought, intended, or set out to do (divergent trajectory cases).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Note to readers: another major “single principle” view was developed by Kadish, who unpacks secondary participation as exerting an influence over the principal’s will. I address Kadish’s view when discussing what I consider the second mode of complicitous behavior—acting “through” another.
- 2.
These facts are adapted fromMichael ((1840) 9 C&P 356). Note that there are certain offenses where the conduct description is such that it cannot be performed through a (human) instrument. In such cases legal systems either forego liability on S’s part or exceptionally allow for accessorial liability to be imposed on S in the absence of any principal liability. See, for example, Cogan and Leak (1976) Q.B. 217 where S, V’s husband, convinced P of V’s eagerness to have sexual intercourse with P, which (as S well knew) was completely against V’s wishes. P was acquitted of rape on appeal (at that time, an honest belief in consent precluded mens rea). P’s acquittal notwithstanding, S’s conviction for aiding and abetting the rape of V was upheld.
- 3.
The factual scenarios covered by this notion cover much of the same ground as what in analyses of the criminal laws of many US States is referred to as the complicity liability of co-conspirators (see, e.g., Robinson and Williams 2018, ch. 13). The conceptual boundaries of a choate conspiracy are usually drawn somewhat differently from a joint enterprise, though. On the one hand, all parties to the prior agreement, even if they have no role whatsoever in carrying out the plan, are potentially liable for complicity as co-conspirators if the conspiracy is carried out. On the other hand, a joint enterprise can arise through spontaneous co-operation on the scene without the need for any prior agreement. To complicate matters further, many US court judgments and state legislatures employ the notion of liability based on “common design” (see, e.g., 720 Illinois Comp. Stat.Ann. 5/5-2(c))—a notion capacious enough to cover parties linked to a principal agent through standard forms of aiding and abetting as well as implemented conspiracies.
- 4.
- 5.
In addition to the modes of perpetration addressed in this chapter, some legal systems also recognize indirect perpetration of a crime through a criminally responsible agent. This notion has proven particularly influential in international criminal law, where it has been developed further into a concept of indirect co-perpetration. See Ambos (2013, ch. 4–5) and Eldar (2014).
- 6.
Polish criminal law follows such a model, and England and Wales have recently created a second, nonderivative and inchoate track of accessorial liability through new statutory offenses of “assisting” and “encouraging” crime contained in the Serious Crime Act (2007, §§ 44-46). For liability under these new statutory crimes, it does not matter for S’s liability whether P embarks on the commission of the target crime. Confusingly, the terminology of “assisting and encouraging” P’s crime is also used as a summary term to designate the traditional common law form of (essentially derivative) secondary participation by aiding, abetting, counseling, or procuring P’s offense. This form of “choate” accessorial liability continues to exist in English law. Importantly, under it, S is liable to be charged and convicted as a principal; this means that the same punishment (range) applies to S as applies to P.
- 7.
This is perhaps unsurprising, given that the earlier provisions of Israeli criminal law had their origins in the Criminal Code Ordinance of 1936 and thus still in the Mandate period. Wisconsin and Israeli criminal laws thus share some intellectual roots.
- 8.
It also appears to me that risking and attempting harm can be conceived of as ancillary conceptions to causal harm, at least when the notion of attempting harm is unpacked from the subjective perspective of the agent.
- 9.
Which, on the rare occasions where the problem arises under existing secondary liability law, is done in England and Wales based on the so-called Tyrrell principle (established in the case of Tyrrell (1894) 1 Q.B. 710 (C.C.R.) where it was held that V, as the protected party of the offense in question, could not be indirectly made liable as a party to an offense against herself).
- 10.
Note that when it comes to group acts, it is perfectly coherent to hypothesize that “accountability appears to accrue first to the jointly acting group, and then derivatively to its individual members” (Kutz 2000, p. 69). Kutz stresses, however, that at the end of the day a collective act will always be “explicable in terms of the intentionality of individuals” who take themselves to be acting on behalf of the collectivity, as well as “the expectations and beliefs of others regarding what [the collective agent] is and what it is capable of” (ibid., p. 71).
- 11.
- 12.
The English doctrine was abandoned in the conjoinedcases of R. v. Jogee; Ruddock v. The Queen (2016) UKSC 8; [2016] UKPC 7.
- 13.
Smith speaks of “homicidal” actions because his remark is made in the context of discussing the secondary party’s liability for a deadly act by the principal that arises in the process of the principal carrying out the crime the secondary party intended to participate in.
References
720 Ill. Comp. Stat. Ann. 5/5-2(c).
Cogan and Leak [1976] Q.B. 217.
German Criminal Code (Strafgesetzbuch), §§26, 27II, 49I.
Michael (1840) 9 C&P 356.
Penal Law 5737-1977 (Israeli Criminal Code of 1994), s. 34A(a).
R. v. Jogee; Ruddock v. The Queen [2016] UKSC 8; [2016] UKPC 7.
Serious Crime Act 2007, ss44-46 (England and Wales).
Tyrrell [1894] 1 Q.B. 710 (C.C.R.).
United States v. Peoni, 100 F.2d 401 (1938).
Wisc. Stat. §939.05.
section
Alexander, Larry, and Kimberly Kessler Ferzan. 2018. Reflections on crime and culpability: Problems and puzzles. Cambridge: Cambridge University Press.
Ambos, Kai. 2013. Treatise on international criminal law. In Vol. 1 of Foundations and General Part. Oxford: Oxford University Press.
Baker, Dennis J. 2016. Reinterpreting the mental element in criminal complicity: Change of normative position theory cannot rationalize the current law. Law and Psychology Review 40: 119–296.
Bratman, Michael. 1999. Faces of intention: Selected essays on intention and agency. New York: Cambridge University Press.
Brudner, Alan. 1998. Owning outcomes: On intervening causes, thin skulls, and fault-undifferentiated crimes. Canadian Journal of Law and Jurisprudence 11: 89–114.
Buxton, Richard. 1969. Complicity in the criminal code. Law Quarterly Review 85: 252–274.
Du Bois-Pedain, Antje. 2016. Violent dynamics: Exploring responsibility-attribution for harms inflicted during spontaneous group violence. Oñati Socio-legal Series 6: 1053–1078.
———. 2020, Forthcoming. Participation in crime. In Vol. 1 of Core Concepts in Criminal Law and Criminal Justice, ed. Kai Ambos et al., 94–134. Cambridge: Cambridge University Press.
Duff, R.A. 1990. “Can I help you?” Accessorial liability and the intention to assist. Legal Studies 10: 165–181.
———. 2008. Is accomplice liability superfluous? University of Pennsylvania Law Review PENNumbra 156: 444–451.
Eldar, Shachar. 2014. Indirect co-perpetration. Criminal Law and Philosophy 8: 605–617.
French, Peter A. 2016. Complicity: That moral monster, troubling matters. Criminal Law and Philosophy 10: 575–589.
Gardner, John. 2002. Reasons for teamwork. Legal Theory 8: 495–509.
Herlitz, Carl Erik. 1992. Parties to a crime and the notion of a complicity object. A comparative study of the alternatives provided by the Model Penal Code, Swedish law and Claus Roxin. Uppsala: Iustus Förlag.
Kadish, Sanford H. 1985. Complicity, cause and blame: A study in the interpretation of doctrine. California Law Review 73: 323–410.
———. 1997. Reckless complicity. Journal of Criminal Law and Criminology 87: 369–394.
Krebs, Beatrice. 2010. Joint criminal enterprise. Modern Law Review 73: 578–604.
Kutz, Christopher. 2000. Complicity. Ethics and law for a collective age. Cambridge: Cambridge University Press.
———. 2011. The philosophical foundations of complicity law. In The Oxford handbook of philosophy of criminal law, ed. John Deigh and David Dolinko, 146–167. Oxford: Oxford University Press.
Lackner, Karl, and Kristian Kühl. 2018. Strafgesetzbuch mit Erläuterungen. 29th ed. Munich: C.H. Beck.
Lepora, Chiara, and Robert E. Goodin. 2013. On complicity and compromise. Oxford: Oxford University Press.
Mellema, Gregory. 2016. Complicity and moral accountability. South Bend: University of Notre Dame Press.
Moore, Michael. 2007–2008. Causing, aiding and the superfluity of accomplice liability. University of Pennsylvania Law Review 156: 395–452.
Ohana, Daniel. 2000. The natural and probable consequence rule in complicity: Section 34A of the Israeli penal law. Israel Law Review 34: 321–351.
Robinson, Paul H., and Tyler Scot Williams. 2018. Mapping American criminal law: Variations across the 50 States. Santa Barbara: Praeger.
Simester, A.P. 2006. The mental element in complicity. Law Quarterly Review 122: 578–601.
———. 2017. Accessory liability and common unlawful purpose. Law Quarterly Review 133: 73–90.
Smiley, Marion. 2017. Collective responsibility. The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/sum2017/entries/collective-responsibility/. Accessed 8 Mar 2019.
Smith, K.J.M. 1991. A modern treatise on the law of criminal complicity. Oxford: Clarendon Press.
Smith, J.C. 1997. Criminal liability of accessories: Law and law reform. Law Quarterly Review 113: 453–467.
———. 1998. Joint enterprise and accessory liability. South African Journal of Criminal Justice 11: 337–349.
Stephen, James Fitzjames. 1950. In Stephen’s digest of criminal law, ed. Frederick Lewis Sturge, 9th ed. London: Sweet & Maxwell.
Stewart, James G. 2014. Complicity. In The Oxford handbook of criminal law, ed. Markus Dirk Dubber and Tatjana Hörnle, 534–559. Oxford: Oxford University Press.
Williams, Glanville. 1990. Complicity, purpose and the draft code – 2. Criminal Law Review: 98–108.
Yeager, Daniel. 1996. Helping, doing, and the grammar of complicity. Criminal Justice Ethics 15: 25–35.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 The Author(s)
About this chapter
Cite this chapter
du Bois-Pedain, A. (2019). Complicity. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_9
Download citation
DOI: https://doi.org/10.1007/978-3-030-22811-8_9
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-22810-1
Online ISBN: 978-3-030-22811-8
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)