barrera - market complicity and christian ethics (2011)

Albino Barrera examines our own moral responsibilities for the distant harms of our market transactions from a Christian viewpoint, identifying how the market’s division of labor makes u

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MARKET COMPLICITY AND

CHRISTIAN ETHICS

The marketplace is a remarkable social institution that has greatly extended our reach, so shoppers in the West can now buy fresh-cut flowers, vegetables, and tropical fruits grown halfway across the globe, even in the depths of winter However, these expanded choices have also come with considerable moral responsibilities as our economic decisions can have far-reaching effects by either ennobling or debasing human lives Albino Barrera examines our own moral responsibilities for the distant harms of our market transactions from a Christian viewpoint, identifying how the market’s division of labor makes us unwitting collaborators in others’ wrongdoing and in collective ills His important account covers a range of different subjects, including law, economics, philosophy, and theology, in order to identify the injurious ripple effects of our market activities.

A LB IN O B A R R E R A is Professor of Economics and Theology at Providence College in Rhode Island His previous publications include Globalization and Economic Ethics (2007), Economic Compulsion and Christian Ethics (Cambridge, 2005), God and the Evil of Scarcity (2005), and Modern Catholic Social Documents and Political Economy (2001).

N E W S T U D I E S I N C H R I S T I A N E T H I C S

General Editor robin gill Editorial Board stephen r l clark, stanley hauerwas, robin w lovin

Christian ethics has increasingly assumed a central place within academic theology.

At the same time the growing power and ambiguity of modern science and the rising dissatisfaction within the social sciences about claims to value-neutrality have prompted renewed interest in ethics within the secular academic world There is, therefore, a need for studies in Christian ethics which, as well as being concerned with the relevance of Christian ethics to the present-day secular debate, are well informed about parallel discussions in recent philosophy, science or social science New Studies in Christian Ethics aims to provide books that do this at the highest intellectual level and demonstrate that Christian ethics can make a distinctive contribution to this debate – either in moral substance or in terms of underlying moral justifications.

T I T L E S P U B L I S H E D I N T H E S E R I E S:

1 Rights and Christian Ethics K I E R A N C R O N I N

2 Biblical Interpretation and Christian Ethics I A N M C D O N A L D

3 Power and Christian Ethics J A M E S M A C K E Y

4 Plurality and Christian Ethics I A N S M A R K H A M

5 Moral Action and Christian Ethics J E A N P O R T E R

6 Responsibility and Christian Ethics W I L L I A M S C H W E I K E R

7 Justice and Christian Ethics E C L I N T O N G A R D N E R

8 Feminism and Christian Ethics S U S A N P A R S O N S

9 Sex, Gender and Christian Ethics L I S A S O W L E C A H I L L

10 The Environment and Christian Ethics M I C H A E L N O R T H C O T T

11 Concepts of Person and Christian Ethics S T A N L E Y R U D M A N

12 Priorities and Christian Ethics G A R T H H A L L E T T

13 Community, Liberalism and Christian Ethics D A V I D F E R G U S S O N

14 The Market Economy and Christian Ethics P E T E R S E D G W I C K

15 Churchgoing and Christian Ethics R O B I N G I L L

16 Inequality and Christian Ethics D O U G L A S H I C K S

17 Biology and Christian Ethics S T E P H E N C L A R K

18 Altruism and Christian Ethics C O L I N G R A N T

19 The Public Forum and Christian Ethics R O B E R T G A S C O I G N E

20 Evil and Christian Ethics G O R D O N G R A H A M

21 Living Together and Christian Ethics A D R I A N T H A T C H E R

22 The Common Good and Christian Ethics D A V I D H O L L E N B A C H

23 Self Love and Christian Ethics D A R L E N E F O Z A R D W E A V E R

24 Economic Compulsion and Christian Ethics A L B I N O B A R R E R A

25 Genetics and Christian Ethics C E L I A D E A N E - D R U M M O N D

26 Health Care and Christian Ethics R O B I N G I L L

27 Alcohol, Addiction and Christian Ethics C H R I S T O P H E R C H C O O K

28 Human Evolution and Christian Ethics S T E P H E N J P O P E

29 Market Complicity and Christian Ethics A L B I N O B A R R E R A

MARKET COMPLICITY AND

CHRISTIAN ETHICS

ALBINO BARRERA

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,

São Paulo, Delhi, Dubai, Tokyo, Mexico City

Cambridge University Press The Edinburgh Building, Cambridge cb2 8ru, UK

Published in the United States of America by Cambridge University Press, New York

© Albino Barrera 2011 This publication is in copyright Subject to statutory exception

and to the provisions of relevant collective licensing agreements,

no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2011 Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data

Barrera, Albino.

Market complicity and Christian ethics / Albino Barrera.

p cm – (New studies in Christian ethics)

isbn 978-1-107-00315-6 (hardback)

1 Christian ethics I Title.

bj1251.b346 2010

241 0 64–dc22 2010030375 isbn 978-1-107-00315-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to

in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For the street kids of Maláte and the children of Ortol – so joyful

and eager to learn more about God

1 The nature of material cooperation and moral complicity 11

2 Complicity in what? The problem of accumulative harms 30

3 Too small and morally insignificant? The problem of

4 Who is morally responsible in the chain of causation?

part ii application: a typology of market-mediated

5 Hard complicity I: Benefitting from and enabling wrongdoing 101

6 Hard complicity II: Precipitating gratuitous accumulative harms 146

7 Soft complicity I: Leaving severe pecuniary externalities

8 Soft complicity II: Reinforcing injurious socioeconomic

ix

part iii synthesis and conclusions 231

10 Synthesis: Christian ethics and blameworthy material

General editor’s preface

After the near-collapse of the global financial system in 2008 this newaddition to New Studies in Christian Ethics is very timely indeed and

is written with great wisdom and clarity Albino Barrera’s previous bution, Economic Compulsion and Christian Ethics (Cambridge, 2005),attracted some veryfine reviews His rigorous training in both economicsand theology really has given him an extraordinarily authoritative voice(that and an ability to write clear prose), matching so exactly the aims of theseries: namely, to promote studies in Christian ethics which engage centrallywith the present secular moral debate at the highest possible intellectuallevel and, second, to encourage contributors to demonstrate that Christianethics can make a distinctive contribution to this debate

contri-Economic Compulsion and Christian Ethics was a top-down book, looking

at the way in which markets can create economic hardships for someindividuals and communities (so-called pecuniary externalities), whereasMarket Complicity and Christian Ethics is more a bottom-up book, examiningthe various ways in which we are all complicit in the harmful effects of ourmarket choices (including, but certainly not exhausted by, pecuniary exter-nalities) Together the two books offer an unparalleled account of currentmarket economics from a perspective within Christian ethics to which allthose engaging in this area responsibly in the future will need to respond.Albino Barrera’s new book is particularly helpful for those concerned withuntangling what the complex and multilayered moral concepts of complicity,accountability, and responsibility entail in relation to modern market econo-mies Theologians and ethicists looking for easy answers will notfind themhere Instead what they will soon discover is one of the most thoughtful andgifted Christian ethicists currently writing about these crucial economic issues

It is a privilege and delight to be able to welcome this unique andimportant new contribution to the series

robin gill

xi

I owe a debt of gratitude to many who helped me in the course of this project.Ernest Bartell provided insights and encouragement on the key chapters Thetwo anonymous readers and Robin Gill, series editor, were extremely gene-rous with their time in carefully pointing out problematic areas and in offering

a wealth of materials for incorporation They clearly improved thefinal outputwith their excellent suggestions and critique I cannot thank them enough Ofcourse, any mistakes that remain are my sole responsibility Laura Morris,Joanna Garbutt, and Joanna Breeze of Cambridge University Press were veryhelpful and professional in shepherding the project through production.Carol Fellingham Webb provided excellent copy-editing services KateMertes furnished a superb comprehensive index I am truly grateful forthese friends and colleagues

xii

Are we morally responsible for the distant harms spawned by our markettransactions? If so, what are the grounds for these non-contractual obliga-tions? How strong are their claims and what are their limits?

For all its genuine benefits, the market, unfortunately, also magnifies theharmful ripple effects of economic activity In fostering specialization anddivision of labor, the market gives us a much wider selection of goods andservices than would have otherwise been the case, but it also makes usunwitting collaborators in the wrongdoing of others We inadvertentlyfacilitate the misdeeds of unscrupulous market participants or perpetratecollective wrongs

For example, the higher returns of investors in tobacco stocks come at theexpense of the premature death of millions, especially in the developingworld where tobaccofirms have taken advantage of lax regulations and non-existent health education to promote smoking aggressively US chickenfarmers and livestock owners heavily use antibiotics in their feeds for betteranimal growth, but the overuse of antimicrobials has increasingly renderedlifesaving antibiotics ineffective against bacteria that have mutated with astronger resistance to these drugs The market for ivory objets d’art andjewelry makes it even more difficult to save endangered elephant herds frombeing decimated further by poachers Hedge funds invest in commoditieslike oil, but their speculative trading causes greater volatility and unwar-ranted price increases that drive nations into deeper poverty And, of course,

as consumers, we stretch our incomes by demanding cut-rate prices for ourfruits, vegetables, coffee, chocolate, meats, and apparel, but often at the cost

of low wages and poor working conditions for the laborers who toil to keepour pantries and closets well stocked

These are instances of material cooperation in economic wrongdoing or

in collective harms Clearly, the marketplace is a remarkable social tion that has greatly extended our reach As ordinary shoppers, we can enjoyfresh-cutflowers, vegetables, and tropical fruits grown halfway across the

institu-1

globe, even in the depths of winter But these expanded choices also comewith considerable moral responsibilities Our buying and selling decisionstake even greater moral significance because they now have more extensiveand more consequential spillover effects that either ennoble or debasehuman lives As proof, we only have to look at the subprime lenders andfinancial institutions whose excesses precipitated the 2008–2009 globalfinancial meltdown that brought economic chaos and suffering to many.

t w i n g o a l sThe problem of how we unwittingly aid and abet evildoing through oureconomic choices has been long acknowledged in Christian faith andpractice John Chrysostom stressed emphatically to his congregants not toengage in trades or occupations that beget turpitude or illiberality in thehuman heart or that produce useless goods or luxuries To do so is to live ondisgraceful gains Toward the end of her married life, St Elizabeth ofHungary often went hungry rather than partake of food and drink thatwere unjustly appropriated from peasants In preaching on the proper use ofmoney, John Wesley urged caution that even as we should gain as much as

we could in our work, we should do so without harming our neighbors’livelihoods or bodily and spiritual health Abolitionists urged the Englishpublic to spurn slave-grown sugar during the bitter struggle to outlaw theslave trade at the turn of the nineteenth century Our own generation hasseen many consumer boycotts aimed at redressing economic injustice.Indeed, Christian theologians, saints, preachers, ethicists, and reformershave been well aware of the problem of blameworthy economic materialcooperation in others’ wrongdoing

However, to my knowledge, there is no systematic treatment of theproblem of economic complicity in Christian ethics to date Knowingwhere to draw the line between permissible and blameworthy materialcooperation is one of the more vexing problems in moral theology.Clearly, our interest in this book is to examine what Christian ethics has

to offer in dealing with moral complicity in market harms How might weapply scholastic“cooperation with evil” and the principle of double effect inevaluating contemporary economic wrongdoing? Can we give an adequateaccount of economic complicity using the resources of Christian ethicsalone? If not, what methods and insights could we adopt from economics,social philosophy, and law in the attribution of individual responsibility fordistant harms or collective ills? What can we learn from the legal doctrine ofcomplicity and its theory of causation?

Unfortunately, before we can get to these questions, it is important that

wefirst understand the nature of the problem What moral issues are raised

by the phenomenon of economic complicity? What are its defining formalcharacteristics? How common is this problem? In philosophy, complicity isviewed as a specialized topic, one of its least explored subjects There is littlescholarship on moral complicity, and not surprisingly, there is even less work

on economic complicity Thus, we have to add a second goal to our study bynecessity Wefirst have to examine the nature of economic complicity itselfand the moral issues it raises This includes identifying the most prevalentinstances of market-mediated complicity and then assessing the economic,philosophical, and theological warrants for why they deserve censure Thesewill then become the bases for our work in appraising what Christian ethicshas to offer in dealing with economic complicity

c h a l l e n g e s

To what extent are we culpable for the unintended consequences of ouractions? Is there a half-life to these duties over space and time, or are weresponsible even for the most distant ills indirectly caused by our moralchoices? Common sense tells us that we cannot be held to account for every-thing But where do we draw the limits of our moral obligations and why?

To compound this dilemma even further, these unintended consequencesunfold in a complex economic terrain Assessing material cooperation ineconomic wrongdoing is made even more challenging by the market’s laby-rinthine web of causes and effects, simultaneous harms and benefits, andinterdependent economic agencies Moreover, we often have to deal withaccumulative harms in which acts that seem benign at the individual levelbecome terribly injurious at an aggregated level (e.g., speculative investments)

t i m e l i n e s sDespite these conceptual hurdles and the paucity of materials, it is wellworth the effort to grapple with the problem of faulty economic materialcooperation because of the urgency of the issue We are the generation thatushered in the post-industrial era Globalization is a major shift in socio-economic life, as significant as the Industrial Revolution was in shaping themodern age Global economic integration is a paradox: it creates new andmore demanding economic obligations, even as it greatly expands theoccasion for our complicity in or indifference to one another’s economicmisconduct

On the one hand, globalization has made us ever more interdependent,better informed, and more capable of providing mutual assistance– all thenecessary ingredients for weightier moral obligations for one another’s well-being We are ever more potent in enriching or diminishing others Morethan ever, the marketplace calls for integrity, restraint, and virtue at theindividual level if it is to function properly.

On the other hand, while globalization has made it even more pressing tosensitize the public to the issue of moral complicity, it has also made it farmore difficult to tackle the problem in practice Global economic integra-tion has made the chain of causation much more intricate And as ever largercircles of people are needed to get things done, moral hazard becomes evenmore of a problem as market participants refuse to take personal responsi-bility for collective outcomes, choosing instead to hide behind the anonym-ity of group membership It has become increasingly difficult to individuateculpability for communal faults And as ever more of our interpersonalrelationships unfold through the marketplace, our shared ethos is increas-ingly marked by a hardened competitive individualism and an acquisitiveconsumerism Greater marketization has made it so much easier to walkaway from our mutual responsibilities and to watch out only for our owninterests

We could mitigate this paradox through clear thinking and discourseabout economic complicity We have to make people understand thephenomenon so well and make the case for addressing it so compellingthat they voluntarily internalize their responsibilities for distant harms andcommunal wrongs Moreover, providing a theoretical framework would go

a long way toward a more comprehensive and systematic approach torectifying the market’s ill effects

c o n t e n t

Chapter1 surveys the conceptual tools currently available in the literatureand examines similarities and differences between the scholastic notion ofmaterial cooperation with evil and the philosophical understanding ofcomplicity The legal doctrine of complicity, various accountability-limiting principles from social philosophy, and the principle of doubleeffect can be combined into a single overarching framework that highlightstheir complementarity.Part Iof the book sets out to do just that

Chapter2examines the problem of accumulative harms whereby ities that are innocuous at the individual level turn out to be ruinous whenaggregated with others’ similar actions Consequently, the ascription of

individual responsibility for collective harms is made much more difficultbecause of a superfluity of causes and interlocking economic agencies.

Chapter 3 deals with the problem of overdetermination How do weimpute individual culpability for market outcomes that arise from a multi-plicity of causes? In particular, is the individual’s causal contribution to theaccumulative harm too minuscule or redundant to be morally significant?Philosophical and theological arguments, ranging from rule utilitarianism

to the familial view of community, converge on the same conclusion:despite their duplicative and minute causal contribution to ultimateharms, individuals are nonetheless still morally accountable

Chapter 4grapples with the problem of interdependent agencies Tortjurisprudence provides a wealth of ideas on disentangling causes and effects.Many of these legal formal and informal rules of thumb can be adapted foruse in the attribution of personal responsibility for collective economic ills.Tort scholarship amplifies scholastic cooperation with evil because both facethe same task of determining who is morally liable in the chain of causation

Part II applies the preceding conceptual tools to four types of mediated complicity It proposes a typology that differentiates“hard” from

market-“soft” complicity The former entails a direct, unjustifiable entanglementwith the wrongdoing, while the latter involves roundabout, unavoidablecausation through accumulative harms Each type of faulty material coop-eration is examined according to its object of accountability (complicity inwhat?), its basis for accountability (why culpable?), and its subject ofaccountability (who is complicit?)

The topic of chapter 5 is what most people commonly associate witheconomic complicity – benefitting from and enabling wrongdoing Thiskind of material cooperation can be shown to be blameworthy using theChristian understanding of the divine order of creation or John Stuart Mill’snotion of“harm to others.” Among the practical problems we address are:How do we determine what constitutes wrongdoing? How do we deal withactivities that produce simultaneous beneficial and baleful effects? Is itmoral to appropriate benefits from past wrongs? As an illustration, we assessthe case of the Saipan apparel sweatshops using the framework of analysisfromPart I

Chapter 6 examines economic conduct that precipitates gratuitousharms Such behavior is blameworthy because its ensuing damages arecompletely avertible Thus, the wasteful use of oil, speculative investments

in vital commodities, and inappropriate production methods generateterribly injurious consequences for unsuspecting third parties downstream.These activities are legal, but market participants who engage in them are

nonetheless morally culpable for precipitating the resulting ills This claimcan be justified using the just-use obligation from Christian ethics and thenotion of undue risk creation from tort law.

Chapter7also deals with collective harms, but unlike in the precedingchapter, these injuries are unavoidable by the nature of marketoperations Economic life is in a constant state offlux as people exchangegoods and services The resulting price changes benefit some, but at theexpense of others The latter adverse effects can be particularly severe.The community as a whole is not blameworthy for these, but it isnonetheless liable for mitigating the more grievous instances of suchspillover effects Rawls’s justice as fairness and the notion of economicsecurity as a divine gift are among the philosophical and theologicalgrounds for this liability

Inchapter8, we generalize the preceding chapter’s findings by extendingthe analysis to non-pecuniary accumulative harms On the surface, thesmooth operations of the market seem to be the spontaneous result ofpeople coming together to trade with one another In reality, the market isundergirded by customs, law, and usage slowly accumulated and refinedover time through our individual buying and selling decisions.Unfortunately, some of these underlying institutions and practices areunjust or harmful to segments of the population The notions of boundedrationality, path dependence, and network externalities from economics,and the idea of social sin from Christian ethics are helpful on this issue.They provide arguments for why there is a moral duty to rectify thesedetrimental structures that we unavoidably reinforce through our partic-ipation in market exchange

Responsibility is the corollary of complicity Thus, chapter 9 lays thegroundwork for a theology of economic responsibility using ontology,Sacred Scripture, and Christian social thought Such theology must exam-ine the relationship between power, responsibility, and freedom, given thenature of market operations Responsibility is theocentric, not anthropo-centric It is God who provides the grounds for the moral agent’s relation-ships and response to others

We conclude the book inchapter10with a comparison of what secularphilosophy and Christian ethics have to offer on the problem of economiccomplicity There is a substantial overlap between the two, no doubt partlydue to the use of both faith and reason in Christian ethics Nevertheless,moral theology has a much “thicker” notion of the good It is distinctlydissimilar from many secular, liberal philosophies in terms of the widerrange of activities it deems to be morally wrong, the weightier obligations it

embraces, and the importance it accords to the integrity of relationships andthe virtue of the person.

c o n t r i b u t i o n sWritten for social ethicists, moral theologians, economists, policymakers,business ethicists, and students of market morality, this book advances theliterature on economic complicity in the following ways First, it identifiessome of the key issues that have to be addressed in any reasonable account ofblameworthy material cooperation in economic life This study examinesthe nature of market-mediated complicity, a task that has not been under-taken in economic, philosophical, or theological literature to date Second,

it outlines what Christian ethics has to offer on this phenomenon.Moreover, this study embeds the scholastic principles of legitimate cooper-ation with evil and double effect within a much richer conceptual frame-work that facilitates their application to economic problems

Third, the book identifies those occasions on which we might be plicit to misconduct in the marketplace; it also presents the moral groundsfor such culpability In particular, it proposes a typology of market com-plicity Fourth, we gain a better appreciation for the nature of accumulativeeconomic harms and the special problems they pose for social ethics Fifth,business ethicists can use the proposed framework of analysis in theirassessment of corporate complicity

com-Sixth, we see an example of the use of faith and reason in moral reflection.The book highlights the points of convergence and divergence betweensocial philosophy, economics, law, and Christian ethics in their ascription ofindividual responsibility for distant harms and communal wrongs.Interdisciplinary work makes a big difference

Finally, this study is a timely contribution to public discourse The collapse of the global financial system in 2008 clearly demonstrated theunintended damage individuals can wreak in the marketplace and theswiftness with which they can inflict such harms These recent events alsounderscore the need to sharpen our moral reasoning in dealing with blame-worthy material cooperation in economic wrongdoing

near-According to development economics, sustained economic growthexpands people’s opportunities They have many more choices available

to them Thus, those who have benefitted from globalization now enjoy amuch broader freedom of action But as mentioned earlier, global economicintegration has also led to an increased marketization of our common life.This means that our economic choices are less private and more social than

ever before, because they have much wider and more consequential spillovereffects on others Indeed, greater economic liberties come with correspond-ingly greater social responsibilities Unfortunately, many wholeheartedlyembrace the former but conveniently ignore the latter Thus, there is urgentneed to sensitize the winners from globalization to both the potency and theduties of their newfound economic autonomy I hope this study will be amodest contribution to that end.

of all funds under professional management in the United States in2007.Indeed, people intuitively acknowledge their obligations for the harmfulripple effects of their economic transactions Unfortunately, the academicliterature has yet to provide a rigorous theoretical foundation for our moralintuitions on the residual duties we know we owe one another in themarketplace.

Thefirst half of this book lays the groundwork for a theory of economiccomplicity in wrongdoing or in collective harms Chapter 1 outlines thescholastic principles of legitimate material cooperation with evil and doubleeffect, the legal doctrine of complicity, and insights from social philosophy

on moral complicity The next three chapters break down the phenomenon

of complicity into its three constituent issues.Chapter2examines the object

of accountability (complicity in what?) and its attendant problem of mulative harms.Chapter3is an account of the basis for accountability (whyculpable?) and its concomitant problem of overdetermination.Chapter4

accu-grapples with the subject of accountability (who is complicit?) and theproblem of interdependent economic agencies

9

c h a p t e r 1

The nature of material cooperation

and moral complicity

c o o p e r a t i o n w i t h e v i lFor Christian ethicists, the scholastic notion of “cooperation with evil”(also known as the principle of legitimate material cooperation) is the logicalstarting point in evaluating our moral responsibility for inadvertentlyfacilitating others’ wrongdoing Our actions that are appropriated andused by others for their misconduct can be described as merely “theoccasion (but not the cause) of the sinful deed.”1In fact, our actions mayyet be morally licit even if we foresee their subsequent misuse by others.Alphonsus Liguori (1696–1787) is credited with formulating this principle

in hisTheologia Moralis:

That [cooperation] is formal which concurs in the bad will of the other, and it cannot be without sin; that [cooperation] is material which concurs only in the bad action of the other, apart from the cooperator’s intention But the latter [material cooperation] is licit when the action is good or indifferent in itself; and when one has reason for doing it that is both just and proportioned to the gravity of the other’s sin and to the closeness of the assistance which is given to the carrying out of that sin (Grisez 1997 , 873, 876) 2

This principle has been developed even further, and there is wide agreementamong commentators on its key distinctions.3

Coordinate agent (co-principal) versus a mere cooperator

A coordinate agent or a co-principal is one who has the same wrongfulintent as the principal and who performs part of the wrongful act itself.Thus, a coordinate agent (co-principal) is always guilty On the other hand,

1 Griese ( 1987 , 389) 2 Translated from Liguori ( 1905 –1912, I:357).

3 I draw the following distinctions from Gonsalves ( 1990 ), Griese ( 1987 ), Häring ( 1964 , 494–519), Kaveny ( 2000 , 285), Keenan and Kopfensteiner ( 1995 ), and Oderberg ( 2004 ).

11

a cooperator merely provides some assistance to the principal in the latter’scommission of the wrongdoing and may even be guiltless depending on theparticulars of the case Such cooperation can be evaluated according to thenature of the intention and the nature of the act Moreover, the nature ofthe act can be examined further in terms of its degree of influence and itslevel of responsibility.

Nature of the intention: formal cooperation versus material cooperationThe formal cooperator intends the wrong committed by the principal; theformal cooperator endeavors to make the principal succeed in the wrong-doing For example, unscrupulous offshore banks are in formal cooperationwhen they assist their clients to avoid taxes in their home countries orlaunder money from criminal activities During the2005–2008 US housingbubble, dishonest mortgage brokers were in formal cooperation when theyaided and abetted unqualified borrowers in falsely certifying their annualincome or assets The material cooperator has no such intention Formalcooperation is always morally wrong and blameworthy The materialcooperator need not be morally culpable, depending on the facts of thesituation.4

Nature of the act: degree of influenceImmediate versus mediate cooperation: Immediate cooperators share in part

of the principal’s commission of the wrongdoing to the point where theprincipal’s act becomes their own One can no longer distinguish betweenthe cooperator’s and the wrongdoer’s acts This is always blameworthy, justlike formal cooperation For example, Wall Street banks were in immediatecooperation as they helped Enron manipulate itsfinancial statements andmislead investors.5The mediate cooperator, on the other hand, performstasks before or after the principal’s wrongdoing Examples of mediatecooperators are the office personnel supporting top Enron executives with4

We can further differentiate formal and material cooperation in terms of whether they are implicit or explicit, positive or negative (omission), and physical or moral.

5 The Enron scandal was a massive accounting fraud to in flate the stock price of the company This Houston-based firm filed for bankruptcy in 2001, resulting in enormous losses for its investors and workers In July 2003, J P Morgan Chase and Citigroup paid a fine of $300 million for their role in the accounting fraud In September 2003, Merrill Lynch acknowledged the complicity of its employees Four former Merrill Lynch executives were subsequently convicted of fraud and conspiracy

in November 2004 See www.latimes.com/sns-ap-enron-trial-glance,0,267898.story?page=1 (last accessed March 7, 2010).

clerical, accounting, and secretarial services Such mediate cooperators arenot necessarily blameworthy, depending on the circumstances of each case.Indispensable versus dispensable cooperation (aka necessary versus contingentcooperation): This distinction pertains to the causal necessity of the cooperatorfor the wrongdoing.“But for” the indispensable cooperator, the harm wouldnot have been inflicted by the principal Thus, Enron’s accounting fraudshould have beenflagged much earlier and the public damage contained, butfor the negligence of its auditor, Arthur Anderson, LLP.6 In contrast, thedispensable agent cannot satisfy the“but for” test For example, even withoutthe mid-level managers and executives, the Enron fraud would have still beenperpetrated They were merely dispensable, contingent cooperators.7 Theindispensable cooperator exercises relatively greater moral and practicalleverage in determining whether or not the wrongdoing succeeds and is,consequently, more culpable than the dispensable cooperator.

Proximate versus remote cooperation: This distinction pertains either to thecausal importance or to the“moral connection” of the cooperator with theprincipal wrongdoing, or both.8 Thus, Enron accountants were causallymuch more significant for the fraud (proximate cooperators) compared withother office staff doing clerical work (remote cooperators) Examples of a

“moral connection” to the wrongdoing itself were the mid-level Enronexecutives who were aware of the fraud but who kept quiet out of fear ofjeopardizing their own holdings of Enron stocks in their retirement invest-ment accounts.9 In contrast, there is no moral connection between theEnron fraud and Enron suppliers

Nature of the act: level of responsibilityUnjust versus unlawful cooperation:10Unjust cooperation entails injury to athird party while an unlawful cooperation does not An example of anunlawful (but not unjust) cooperation is the case of the person who brings

6

Arthur Andersen, LLP was the largest of the Big Five public accounting firms prior to its dissolution

in the wake of its role in the Enron scandal.

7

Of course, there is the separate issue of their duty to alert authorities We will examine the issue of failure by omission in a later chapter.

8 To this, one can also add temporal and geographical proximity (Kaveny 2000 , 285).

9 Another example of a moral connection in the wrongdoing itself is the case of the owners of US retail chains and distribution outlets for sweatshops These proprietors are at least proximate cooperators because their interests overlap those of their overseas sweatshop suppliers – keeping labor costs down.

In contrast, there is a minimal “moral connection,” if at all, between these retail chains’ employees and the overseas sweatshop operations.

10 I draw this distinction from Oderberg ( 2004 , 205–209).

drugs to an addict.11No third party is involved besides the cooperator andthe principal The cases we examine inPart IIof our study involve injury tothird parties.

In sum, Alphonsus Liguori identifies three conditions that have to besatisfied if material cooperation12is to be morally licit

1 The cooperator’s act must not be evil in itself

2 The cooperator is motivated by a good intention

3 The cooperator’s reason is proportioned to:

a the gravity of the perpetrator’s wrongdoing;

b his or her proximity to the wrongdoing.13

Principle of double effect

Of Liguori’s three conditions, the proportionality between the cooperator’sreason for acting and the ensuing collateral harm is the most demanding andthe most open-ended criterion In particular, there are problems associatedwith disentangling, measuring, and comparing interlocking harms andbenefits This is not even to mention the difficulty of identifying thekey consequences we have to consider

For this third condition, moral culpability hinges on whether or not thecooperation was justified to begin with There may be overwhelmingbenefits relative to the ensuing harms that warrant such cooperation Arethere mitigating circumstances or gains that negate the cooperator’s culpa-bility? In effect, our task of assessing varying types and degrees of licitmaterial cooperation ultimately becomes an exercise in the use of theprinciple of double effect

Thomas Aquinas’s (1225–1274) exposition on whether or not it is lawful

to kill in self-defense is considered to be thelocus classicus14of the principle

of double effect (PDE), sometimes known as the doctrine of double effect ordouble-effect reasoning.15

11

Oderberg ( 2004 , 207).

12 Kaveny ( 2000 ) argues that some issues are better described in terms of “appropriation of evil” instead

of the traditional “cooperation with evil.” For example, we have the case of benefitting from scientific research from aborted fetuses or from embryonic stem cell research.

13 This last condition is related to our earlier differentiation between immediate versus mediate material cooperation and proximate versus remote material cooperation.

14 Cavanaugh ( 2006 , 2) See also Kissell ( 1996 ).

15 Cavanaugh ( 2003 , 149) is emphatic that we should not call this a “principle” or a “doctrine” because it gives the wrong impression that it is an authoritative religious teaching rather than a philosophical way

of thinking Hence, he suggests using “double-effect reasoning.” For this study, I will call it the principle of double effect in line with common usage.

Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention Now moral acts take their species according

to what is intended, and not according to what is beside the intention Therefore this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in being, as far as possible And yet, though proceeding from a good intention, an act may be rendered unlawful, if

it be out of proportion to the end Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful (Aquinas, 1947 –1948, II–II, q 64,

a 7, reply, emphasis original)

By the seventeenth century, this reasoning was recognized to be a generalprinciple that can be applied in all areas of moral theology.16Since then, theprinciple has seen further development and use from the late Scholasticsonward.17 The principle can be stated in its most general and conciseformulation as follows:

One may state double-effect reasoning as permitting an act causing good and evil when it meets the following conditions:

1 The act considered independently of its evil effect is not in itself wrong;

2 The agent intends the good and does not intend the evil either as an end or as a means; and,

3 The agent has proportionately grave reasons for acting, addressing his relevant obligations, comparing the consequences, and, considering the necessity of the evil, exercising due care to eliminate or mitigate it.

(Cavanaugh, 2006 , 36)

Business ethicistsfind the requirement of due care (no 3) to be extremelyimportant The most common paradigm for the application of PDE is thecase of the just war However, business ethicists and philosophers are quick

to note that there are disanalogies between war and business operations thatmake PDE incomplete and unsatisfactory in dealing with the harmfulside-effects of modern corporate activity In particular, the analogy withwar is inappropriate because of the following differences Business is pri-marily engaged in value creation rather than the destruction of life andproperty Furthermore, it can engage in constructive dialogue and consul-tation with all stakeholders bothex ante and ex post Moreover, business hassome leeway in staving off or at least minimizing the harmful side-effects ofits operations.18

For example, multinational companies can be good corporate citizens bybeing sensitive to their impact on the local community, its environment,and its social ecology And in the case of odious host governments thatabuse the human rights of their own citizens, such multinationals couldexert moral suasion through both formal and informal channels so as not to

be complicit in such abuses Thus, business ethicists suggest that PDE’sthird requirement of due care can be made even more explicit when it comes

to business and economic cases:

* That ongoing consultation and conversation are conducted with holders, especially those who are adversely affected

stake-* That ongoing measures are taken to prevent or at least minimize negativeside-effects

* That the ill effects are unavoidable with no other alternative meansavailable to achieve the positive benefits of the business operations.19

The principle of double effect resolves two issues at the same time:(1) whether or not cooperation with evil is justified and (2) how far suchpermissible cooperation should go In other words, not only can we use theprinciple to establish whether or not there is complicity, but we can alsoemploy it to “grade” the degree of such complicity To implement thisprinciple, we have to assign relative weights to the good and ill effects of theact under consideration The proportionality condition of the principle ofdouble effect requires prudential judgment in the absence of a more detailedset of criteria.20

Many have proposed intuitively appealing rules of thumb in applyingthe principles of double effect and legitimate material cooperation,such as:

* The greater the harm21inflicted, the more compelling the reason must be

to cooperate with the wrongdoer.22

19

Bomann-Larsen ( 2004 ); Bomann-Larsen and Wiggen ( 2004 , 99).

20 The principle of double effect is not without its problems and controversies In particular, ophers have been debating whether or not we can conflate “intending” and “foreseeing.” If a person can already foresee the harmful unintended consequences, but nonetheless proceeds with the act, might we not then simply say that the foreseen harmful consequences are de facto intended? Is there a difference between foreseen side-effects and intended consequences? This debate is beyond the scope

philos-of this book For purposes philos-of this study, we will simply adopt the most common interpretation philos-of the principle that makes such a distinction See Cavanaugh ( 2006 , 73–163) and Bennett ( 2001 ) for the debate over the “I/F distinction.” See also Kaveny ( 2000 , 299–304) for a brief explanation of the difference between intending and foreseeing.

21 I define “harm” in this case and for all the following rules in terms of Feinberg’s ( 1984 , 31–64) three criteria: the act itself is wrong, it sets back vital welfare interests, and it violates rights.

22 Häring ( 1964 , 499); Oderberg ( 2004 , 215).

* The greater the wrongdoing of the principal, the more compelling thereason must be to cooperate with the wrongdoer.23

* The closer one is to the wrongdoing in the chain of causation, the morecompelling the reason must be to cooperate with the wrongdoer.24

* The more indispensable one’s contribution is to the wrongdoing, themore compelling the reason must be to cooperate with the wrongdoer.25

* The more certain is the occurrence of the harm, the more compelling thereason must be to cooperate with the wrongdoer.26

* The greater one’s obligation is to avoid cooperating with the wrongdoing

or to prevent the harm, the more compelling the reason must be tocooperate with the wrongdoer.27

* The greater is the risk of scandal to others, the more compelling thereason must be to cooperate with the wrongdoer.28

* The greater the danger of adversely affecting our own character andvirtue, the more compelling the reason must be to cooperate with thewrongdoer.29

A word of caution: some believe that the principle of double effect shouldnot be used in economic ethics.30It might lead people to acquiesce to harmssimply because such injuries can always be compensated as part of the thirdcondition on mitigating the ill effects Moreover, there is the danger ofweighing market consequences in monetary terms alone since this is thecommon denominator used for comparison This reinforces even furtherthe market’s reductionist tendency of assessing everything in quantitative,monetary terms to the exclusion of non-pecuniary considerations, such

as the unintended consequences on morals and human flourishing Forexample, no amount of compensation or punitive damage can make up23

This condition is different from the first one (on the gravity of harm) in that this pertains to the gravity of the principal’s wrongdoing This is the third condition of Liguori’s ( 1905 –1912, I:357) formulation of the principle of material cooperation See also Häring ( 1964 , 499) Moore ( 1999 , 27) has a similar formulation but states it in a slightly different manner: “The greater the culpability with which an act is done, the greater the causal power of that act.”

24 This is also the third condition of Liguori’s ( 1905 –1912, I:357) formulation of the principle of material cooperation See also Häring ( 1964 , 499) and Oderberg ( 2004 , 215) As we will see in chapter 4 , the direct causation principle states that accountability diminishes with intervening events (Kutz 2000 , 262) Recall the notion of proximate material cooperation.

25

Häring ( 1964 , 499); Oderberg ( 2004 , 215) Compare this with the “but for” (sine qua non) standard in legal and social philosophy Recall the notion of indispensable material cooperation.

26 Feinberg ( 1984 , 216); Häring ( 1964 , 499); Oderberg ( 2004 , 215); Parfit ( 1984 , 73–75).

27 Oderberg ( 2004 , 215–216) The proximity principle states that one is more accountable for harms (or failure to prevent such harms) for the people who are socially, physically, or temporally closer to us than to the more distant ones (Kutz 2000 , 262) Interpersonal bonds and ties are also important determinants of moral responsibility.

28 Grisez ( 1997 , 880); Häring ( 1964 , 499) 29 Grisez ( 1997 ); Kaveny ( 2000 ).

30 For example, see Gowri ( 2004 ).

for the ruined health or lost lives in communities adversely affected bypollution Similarly, monetary restitution or new jobs created can neverrestore the natural beauty of the land ruined by mining.

These criticisms have a point Nevertheless, in the absence of an native method, the principle of double effect is by far one of the mostuseful conceptual tools we have in sorting through moral dilemmas ineconomic life We just have to use the principle with appropriate cautionand safeguards

alter-c o m p l i alter-c i t y i n l a w a n d p h i l o s o p h y

Besides the scholastic principles of material cooperation and double effect,another set of conceptual tools that is useful for our study is the notion ofcomplicity from law and social philosophy

Kadish

In a substantial article entitled “Complicity, Cause and Blame: A Study

in the Interpretation of Doctrine,” Sanford Kadish surveys the American common-law account of the legal doctrine of complicity Thiswork examines complicity in criminal law in terms of its nature, the actionsthat bring it about, the agent’s intention, and its outcomes First, by itsnature, complicity is always in reference to the unlawfulness of the princi-pal’s action As a result, complicity liability (accomplice liability, accessorialliability, secondary party liability) is merely derivative liability If theprincipal’s action is not unlawful, then there is no complicity liability.Furthermore, accomplice liability cannot be greater than the primary party’sliability However, secondary parties are guilty not because of the principal’sunlawful act (for which the latter alone is responsible), but for what theyhad contributed to the principal’s actions that ultimately led to the violation

Anglo-of the law Thus, secondary parties cannot be held liable for the violation Anglo-ofthe law itself.31

Second, there is complicity whenever secondary parties intentionallyinfluence or assist the principal to commit an unlawful act Actions thatconstitute influencing the principal include advising, persuading, com-manding, encouraging, inducing, instigating, inciting, provoking, andsoliciting Assistance includes providing the means, opportunity, informa-tion, or any other contribution to the preparation or commission of the

31 Kadish ( 1985 , 337–342).

unlawful act.32However, there is a threshold beyond which such actions are

no longer mere assistance (complicity liability) but co-conspiracy This iswhen one commits part or all of the crime’s actus reus (the wrongful act oromission that actualizes the crime) Thus, one becomes a co-principal of thecrime instead of being merely an accomplice in any of the followinginstances: when both parties commit all (or part) of the acts constitutingthe crime or when each of the parties commits some of the acts that jointlyconstitute the crime.33

Third, the secondary party must have intended to influence or assist theprincipal actor in the commission of the crime Intention is a necessaryelement for complicity liability.34Thus, the legal doctrine of complicity has

a much higher bar than the doctrine of causation, because the latter does notrequire intention in order to incur liability (e.g., negligence).35

Kutz

In his bookComplicity: Ethics and Law for a Collective Age, ChristopherKutz goes beyond the legal doctrine of complicity and the traditionalprinciples of individual accountability to propose his own method fordealing with complicity in a collective setting He claims that economiccomplicity arises in at least three ways: through a substantial individualcausal contribution, through participatory intent, and through quasi-participatory intent in an unstructured harm We examine each of these

in what follows

Complicity through a significant causal contribution

The traditional legal approach to complicity has revolved around threeprinciples that guide most people’s thinking on individual accountability,namely:

The Individual Difference Principle holds that I am only accountable for a harm if something I did made a difference to its occurrence If substantially the same harm would have occurred regardless of what I have done, I cannot be accountable for it.

32 Kadish ( 1985 , 342–346).

33 Kadish ( 1985 , 344) gives the example of two parties robbing a victim at gunpoint Regardless of how they divide the actus reus between them (holding the gun and taking the person’s wallet), both are co- principals of the crime.

34 Kadish ( 1985 , 346–355).

35 We will examine the doctrine of causality in greater depth in chapter 4 Kadish’s fourth point pertains

to how complicity arises if the secondary party’s action could have possibly been a sine qua non (“but for”) condition for the principal’s criminal act.

The Control Principle holds that I am only accountable for events over which I have control, and whose occurrence I could have prevented Finally, the Autonomy Principle holds that I am not accountable for the harm another agent causes, unless

I have induced or coerced that agent into performing an act (Kutz 2000 , 3, emphasis added)

These principles are widely used in the ascription of individual bility because they are intuitively appealing That we should be heldresponsible only for what we have caused or could have prevented seems

responsi-to be both commonsensical and fair responsi-to most people

Complicity in organized collective harms

Kutz finds the preceding principles inadequate for many contemporarymoral issues in which harms are incurred collectively He uses the case ofthe Dresden bombers to illustrate his point Dresden was completelydestroyed and more than35,000 people were killed in the firestorm wrought

by the Allies’ strategic bombing campaign during February 13–15, 1945.There were more than a thousand planes and eight thousand crew directlyinvolved in this“area (carpet) bombing” as pilots, gunners, navigators, andbombers, not counting the ground crews that serviced and prepared theplanes.36

To what extent is an individual crew member complicit in such a massiveloss of civilian lives? Is he even personally culpable at all? To begin with, thecontribution of each crew member was infinitesimal; tens of thousands wereinvolved in planning and carrying out this three-day raid Furthermore,each crew member’s contribution was redundant because the city wouldstill have been destroyed and the civilian lives lost even without his partic-ipation Others would havefilled his place Moreover, the cause of the city’sdestruction was overdetermined in that a fraction of the thousand planesdropping incendiary bombs would have been sufficient to wipe outDresden There was a superfluity of causes, each of which would havemade no individual difference to the ultimate outcome and each of whichcould not have controlled thefinal outcome None of the planes could havesinglehandedly destroyed the city or killed so many people on its own, buttaken together, the thousand planes were sufficient to ensure that Dresdenwas reduced to rubble By the three aforesaid commonsensical principles(autonomy, individual difference, and control) none of these crews could beheld individually accountable for the Dresdenfirestorm bombing

36 Kutz ( 2000 , 116–124).

Thus, we have anI–We problem “in which I participate in a harm we do[together], but I am not personally accountable for that harm, because ofthe insignificance of my contribution.”37 Kutz argues that at the root ofI–We problems is the solipsistic nature of the three aforementioned com-monsensical principles These principles are individualistic in their world-view whereby people are held accountable only on the basis of what theyhad done and what they had caused38 without regard to other consider-ations, such as their sociohistorical location, relationship to the victim(s), orother perpetrators acting similarly A possible solution to I–We problems

is to adopt a communitarian approach Kutz does not take this pathbut simply expands the scope of individual responsibility to include collec-tive outcomes in which the individual has a stake through intentionalparticipation Thus, he suggests another principle:

The Complicity Principle (Basis) I am accountable for what others do when I intentionally participate in the wrong they do or harm they cause (Object) I am accountable for the harm or wrong we do together, independently of the causal difference I make (Kutz 2000 , 122)

Obviously, each individual crew member bears a share of the moral sibility for the Dresden bombing by virtue of his participative intent infulfilling his part of the bombing mission Later in his book, Kutz appliesthis principle to shareholders and goes so far as to criticize current corporatelimited-liability laws He argues that in the event that a corporation’s assetsare not sufficient to compensate the victims of its corporate misdeeds(or those of its officers), then shareholders should be held personally liable

respon-to make whole the obligation His rationale for this proposition is that bystaying vested in the corporation, each shareholder demonstrates participa-tive intent and contributes toward furthering the aims and operations of thecorporation They should, therefore, bear responsibility for its corporatemisdeeds.39

Unintended market outcomes and complicity

The examples presented earlier in the Introduction are cases of unintendedbut foreseen market harms People who facilitate or contribute to theseills are in material cooperation However, is it proper to use the term

“complicity” to describe these cases? After all, in the legal doctrine of

37 Kutz ( 2000 , 5) 38 Kutz ( 2000 , 4) calls these relational and causal solipsism respectively.

39 Kutz ( 2000 , 204–253).

complicity, the secondary agent– the accessory – must intend to promote

or facilitate the wrongdoing of the principal Intention is an importantrequirement of complicity Some would even go so far as to claim that nomaterial cooperation is the same as complicity because the latter requiressharing in the wrongdoer’s intent.40And, indeed, sharing in the wrongfulintent constitutes formal, not material, cooperation

Kutz himself acknowledges that the complicity principle is applicableonly to structured harms, as in the case of corporations, organized groups, orcoordinated activities in which there is a shared intention (e.g., Dresdenbombing, Mafia) Consequently, his complicity principle fails in the case ofunstructured harms in which there is no coordination or a shared goal onthe part of the parties involved For example, air pollution results from theuncoordinated, spontaneous individual actions of drivers, farmers, factorymanagers, and power plant operators One cannot ascribe a participativeintent to any of these economic actors for the resulting harm (cancer-causing pollution) as they intend merely to go about their respectivework Unstructured harms are important for our study because mosteconomic ills are of this type Furthermore, the market is widely viewed

as an unstructured social entity

Nevertheless, I propose that we can properly use the term“complicity” todescribe the subject matter of our study, for at least two reasons In thefirstplace, the use of the term is not univocal Second, the market is not entirely

“unstructured.” We briefly examine each of these arguments

Popular usage

The requirement of intention on the part of the cooperator in the legaldoctrine of complicity is understandable, particularly in criminal law Giventhe severity of the resulting penalties imposed, accomplice liability mustnecessarily show intent However, for this study, we are talking of moral,not legal, responsibility Their respective standards of blameworthiness areclearly different, with the latter requiring a much higher bar

Furthermore, complicity is not a univocal term, not among socialphilosophers or the general public For example, using the language ofordinary discourse and wide-ranging literature, Kissell (1996; 1998; 1999)has shown that toleration of evil is also an instance of complicity For thepublic, complicity is not limited only to positive acts that bring aboutharms Instead, complicity also includes acts of omission, such as notspeaking up against wrongs or doing nothing to change grave systemic

40 Oderberg ( 2004 , 217–218).

evil Unlike traditional, casuistic approaches to complicity, a fuller account

of complicity must necessarily view the moral agent within the context ofthe community This entails paying heed to the individual’s responsibilitiestoward the group Thus, our deepest moral intuitions censure people who,

by failing to confront wrongdoing,“diminish important values and debasethe [community’s] moral climate.”41Public morality frowns on individual

or collective failure to live up to our better and noble selves

Parker (2003) expands moral complicity even further to include conduct

in which one expressively affirms another’s wrongdoing For him, thethreshold for what constitutes complicity is much lower in that no causalcontribution is even necessary All it takes for such“expressive alignment”with someone else’s misconduct is to manifest publicly one’s desire, belief,

or attitude in support of such misdeed This behavior is blameworthybecause it distorts moral law Parker’s expressive account of moral complic-ity is not entirely new Moral theologians have long argued that the risk ofscandal to others is an important factor to consider as we weigh theproportion of harms and benefits in the principles of double effect andmaterial cooperation.42What is new in Parker’s formulation, however, is hisdescription of such behavior as“moral complicity.”

Complicity in unstructured collective harms

There is a second reason why we can use the term“complicity” in our study

of economic harms Kutz extends further his earlier analysis He arguesthat even if a moral agent does not have a determinative causal impact ineffecting the harm or even if the agent is not part of a concerted action toinflict the harm, the person may nonetheless still be culpable He cites theexample of a merchant who knowingly sells tools that may be used in awrongdoing The merchant is only one of many other vendors selling suchtools and is interested only in making a sale, not in fostering a criminalenterprise Using the standards we have seen thus far, we cannot hold themerchant culpable for the subsequent lawbreaking in which the tool wasused because he made no causal difference to the commission of the crime.(The criminal would have secured the tool from other merchants anyway.)Moreover, the merchant was definitely not part of a concerted action.Nonetheless, Kutz (2000, 166–203) asserts that the merchant should beheld morally liable for the resulting harm He argues in favor of individualresponsibility for such unstructured harms, for two reasons

41 Kissell ( 1998 , 267).

42 See, for example, Grisez ( 1997 , 880), Häring ( 1964 , 499), and Keenan and Kopfensteiner ( 1995 , 26).

First, the marketplace does not arise in a vacuum but is in fact undergirded

by structures, institutions, and practices built up over time through economicactivity Individual economic choices ultimately gel into a collective whole.The economic actor is, in fact, a partaker of and a contributor to a way of life.The market and its participants are part of a culture.43The market may not

be considered concerted action, as in the case of a corporation or of theDresden bombers, but it is not entirely uncoordinated or unstructured either.Economic agents reinforce and perpetuate formal and informal societal rulesthrough their conduct in the marketplace.44Thus, market participants can besaid to have a quasi-participatory intent.45

A second reason for holding individuals accountable for unstructuredharms is simple and straightforward: character formation.46 Many arekeenly aware of their responsibility to correct collective harms even ifthere is no legal basis for such duty People simply take it upon themselves

to do their share in ameliorating collective harms because of their characterand virtue We have recent examples of such voluntary behavior in theproliferation of NGOs, the emergence of social entrepreneurship, the FairTrade and anti-sweatshop movements, and the carbon offset programs.For this study, I subscribe to Kutz’s position on unstructured harmsbecause, as I will argue inchapter8, the marketplace is, in fact, undergirded

by societal norms and institutions It may seem to be unstructured onthe surface, but in reality, it is governed by formal and informal rulescompiled over time from customs, law, and usage Market participantsboth sustain these underlying structures and benefit from them throughtheir buying and selling activities They are fully cognizant of both the goodand harmful outcomes of market processes One could ascribe a“virtual” orpresumed intention to market participants Thus, Kutz’s notion of a quasi-participatory intent in “unstructured” harms is both reasonable and anaccurate description of socioeconomic phenomena

We can further justify Kutz’s expanded notion of individual participation

by recalling the importance of context To assess fully the morality of anindividual act, we have to consider it in the context of the collective act towhich it contributes and in which it participates.47This applies whether the

43 Furthermore, most of these economic agents are also citizens and, thus, they have a role in shaping their nations’ political economy Passive acquiescence is in itself a choice – keeping the status quo We will come back to this phenomenon in chapter 8 when we examine its underlying economics: bounded rationality, network externality, and path dependence.

44 For example, by giving out-sized bonuses, banks and financial institutions are reinforcing the informal market ethos (especially in the USA) of tolerating large pay inequalities.

45 Kutz ( 2000 , 186) 46 Kutz ( 2000 , 17–65, 167).

47 This point and the following examples come from Isaacs ( 2006 , 65).

collective is organized or unstructured Running a marathon takes adifferent moral quality if it is done as part of a fundraiser for a worthycause Murder is viewed in a different light if it is committed within thecontext of genocide It is a mistake to evaluate individual acts in isolationfrom the larger collective context of which they are but a part and to whichthey contribute Such moral assessment will be grossly inadequate andincomplete The collective context can and often does change the moralquality of the individual act For our study, this means that we cannot weighfully the moral import of market participants’ individual choices in isolationfrom the praiseworthiness or blameworthiness of market processes andoutcomes.

Finally, besides Kutz’s two reasons, we can add a third argument An actthat is intended either as an end or as a means is called“directly” voluntary.The unintended but foreseen consequences of such directly voluntary actsare called“indirectly” voluntary.48Even as they are unintended, they havebeen accepted nonetheless by the moral agent Thus, the moral agent canstill be held responsible for indirectly voluntary acts After all, the moralagent could have averted these unintended but foreseen consequences butdid not The indirectly voluntary moral agent is not blameworthy for theharm, but may nevertheless still be held liable for mitigating the resultinginjury depending on the context of the situation (the third condition ofPDE) Failure to fulfill such liabilities, if any, constitutes grounds forcensure

In sum, for this study, we will go beyond the narrow definition of thelegal doctrine of complicity and adopt philosophers’ more expansive notion

of “moral complicity.” In the first place, there are strong reasons to scribe to Kutz’s expansion of individual responsibility to include “unstru-ctured” harms There is indeed quasi-participatory intent as we causallycontribute to reinforcing social structures and as we accept the unintendedbut foreseen consequences of our actions Second, the expansive scope

sub-of moral complicity is more in line with the public’s moral intuition sub-ofwhat constitutes blameworthy cooperation than is the legal doctrine ofcomplicity

Complicity and material cooperationMoral complicity is not identical to material cooperation On the one hand,moral complicity also encompasses formal cooperation On the other hand,

48 Fagothey ( 1972 , 31–34).

material cooperation includes excused or justified acts.49 These arenot blameworthy and do not constitute moral complicity Despite thesedifferences, there is a substantial overlap between complicity and materialcooperation In particular, moral complicity includes the blameworthyinstances of material cooperation For this study, I use“moral complicity”

or“complicity” as shorthand for blameworthy material cooperation.Why not simply stick with the language of material cooperation? What

do we gain by using the language of complicity in this study? We can enrichboth concepts by using them together Let us first examine how thelanguage of complicity supplements the scholastic notion of material coop-eration First, not all forms of material cooperation deserve censure In using

“complicity” we immediately focus on that subset of material cooperationthat is faulty Second, we can adopt insights and methods from the legaldoctrine of complicity It teaches us much about the subjective conditionsthat determine the cooperator’s blameworthiness50 and the nature of therelationship between the cooperator and the principal.51This is not to saythat many of these insights are missing in the principle of material cooper-ation It is just that the legal literature brings a different and enrichingperspective, as we will see in the following chapters

Third, in imputing individual responsibility for harmful market comes, we have to dealfirst with collective harms There is not much in theliterature on material cooperation in economic life, much less on theproblem of market accumulative harms, since the interest has largely been

out-on questiout-ons of war and bioethics.52In contrast, social and legal phers have paid relatively more attention to using the notion of complicity

philoso-in assessphiloso-ing economic problems, philoso-includphiloso-ing the phenomena of accumulativeharms and collective responsibility.53

Fourth, “complicity” is a much simpler concept that the public willimmediately recognize, understand, and associate with blameworthy activ-ities People will straightaway know that we are referring to acts that deservecensure Not so with“material cooperation.” Few would understand whatthe term is, much less its implications

49 For example, deforestation is often aggravated by poor rural families who are driven to cut down trees

as fuel for cooking and heat The material cooperation of these families in the denudation of the land

is excusable and non-liable because of the economic compulsion involved.

50 For example, we have knowledge, intent, voluntariness, and personal capacity.

51 Kissell ( 1998 , 264) For example, we have derivativeness and asymmetry to the harm.

52 For examples of the use of material cooperation in assessing economic issues, see Grisez ( 1997 ) and Häring ( 1964 , 494–519).

53 For example, see Feinberg ( 1970 ; 1984 ) and Kutz ( 2000 ).