Leeman, J.

Polm, S.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)‘Knock Knock’: On respect for autonomy as a criterion for rules of secondaryliabilityPolm, S.; Leeman, J.Publication date2021Document VersionFinal published versionLink to publicationCitation for published version (APA):Polm, S. (Author), & Leeman, J. (Author). (2021). ‘Knock Knock’: On respect for autonomy asa criterion for rules of secondary liability. Web publication or website, Rethinking SLIC.https://rethinkingslic.org/blog/89-knock-knock-on-respect-for-autonomy-as-a-criterion-for-rules-of-secondary-liabilityGeneral rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:26 Oct 2023Blog 06.05.2021 Sjors Polm & Jeanne Leeman‘Knock Knock’: On respect for autonomy as acriterion for rules of secondary liabilityI. IntroductionMost of the events that are discussed on the Rethinking SLIC blog through the lens of secondaryliability are exceptional. They are exceptional, when one considers that most instances of humancooperation and aid are perfectly unobjectionable, both legally and morally. Financial services,for instance, are indispensable to the modern world. Accordingly, earlier blog posts from theproject considering how such services have contributed to serious wrongs concern exceptions.Examples are Jindan-Karena Mann’s blog concerning BNP Paribas in Sudan and Joëlle Trampert’sblog on FMO’s involvement in the construction of a dam on the Qualcarque river.The general rule in relation to which scenarios of secondary liability form exceptions is oftenconstrued in consequentialist terms. The idea is then that, in general, secondary actors contributeto good things. This consequentialist rationale supports having relaxed rules of secondaryliability, so that bene cial cooperation is not discouraged. Georg Nolte and Helmut Philipp Austfor instance write in this vein that[w]hile [...] a strict rule on the responsibility for ‘aid and assistance’ at  rst sight appears to bebene cial for the international rule of law—as it would claim to force States to be their‘brother’s keeper’ and to steer far away from the risk of being implied in illegal activity—itwould at the same time discourage many typical and usually bene cial forms ofinternational co-operation (p. 12).The question of when exceptions should be made to this rule, that is, when secondary actorsshould face liability, is also understood in consequentialist terms. That is to say, when secondaryactors contribute to serious wrongs, the law on secondary liability should come in to hopefullyprevent such contributions from being made. To give an example, when the  nancial servicesprovided by a company make part of a causal chain leading up to serious human rights violations,consequentialism supports attaching liability to the provision of the services, instead ofHome / Blog / ‘Knock Knock’: On respect for autonomy as a criterion for rules of secondary liabilitysupporting the provision of the services itself. Consequentialism can thus provide both argumentsfor and against having an expansive regime of secondary liability.In this blog, we consider a di erent rationale that can provide normative guidance in rethinkingthe law of secondary liability: respect for autonomy. This is an idea we gather from deontologicalthought. It is our impression that respect for autonomy has not been granted much attention yetin deontological theories of secondary liability, which instead focus on asking why and whensecondary actors deserve punishment or should be made to rectify wrongs. To illustrate what wemean by respect for autonomy and how this idea can inform normative arguments about the lawon secondary liability, we turn to an infamous passage from Immanuel Kant’s On a SupposedRight to lie from Philanthropy (1797): The murderer at the door.II. The murderer at the doorWhat should you tell a murderer, Kant asks, when he knocks on your door and asks you whetheryour friend, who is hiding upstairs, is around? Kant’s answer is that you should, if pressed for ananswer, not lie. Kant goes further than this, writing that “if you had lied and said that he [yourfriend] is not at home, and he has actually gone out (though you are not aware of it), so that themurderer encounters him while going away and perpetrates his deed on him, then you can byright be prosecuted as the author of his death” (8:427). This passage from Kant’s writing is thesubject of much controversy. Many commentators for instance maintain that Kant applied his owntheory incorrectly to the - ctional- facts. We do not want to take sides in any interpretativedebate here. Instead, it is interesting to note that the scenario of the murderer at the door mayinvolve secondary liability: If the murderer succeeds in his plans, the person who answered themurderer’s question may have contributed to this, either by telling the murderer where to  nd hisfriend or, in the scenario Kant also discusses, by lying to the murderer who then by coincidenceruns into the friend regardless.Kant makes two related moral claims about his  ctional story. The  rst is that you are notresponsible for the consequences of telling the murderer the truth. The second is that you are, insharp contrast, responsible for any consequences that may follow from lying about your friend’swhereabouts. We use the  rst idea in the remainder of our argument, leaving the second -strange-claim aside. What underlies both claims, however, is Kant’s conception of persons as free andrational agents. When Kant speaks of freedom, he understands this as the ability to overcomeone’s urges. As rational beings we have the capacity to know what is right and wrong and to acton this (or so we must believe, at least). Rationality allows us to free ourselves from our impulsesby doing the right thing. According to Kant, this quality separates humans from inanimate objectsand other animals, who cannot resist their urges when reason would compel us, if we were in asimilar situation, to act otherwise. Instead, what happens to objects and non-human animals ismerely the result of causal laws. Accordingly, Kant makes a sharp distinction between things thatbehave fully according to the laws of nature and persons, who operate (partly) outside of thiscausal realm.This distinction has important implications for questions of responsibility. That is because, inKant’s framework, responsibility can only reside with persons.  When only causal objects standbetween a person’s action and its eventual consequences, that person can, if other circumstances-the presence of the required mental state, etc.- also allow for it, be held accountable for theconsequences they produce. If, on the other hand, one actor relates to another as a secondary1actor, the principal actor is in the  rst instance solely responsible for what they themselves endsup doing. Christine Korsgaard makes this point in discussing the murderer at the door as follows:“In a Kantian theory our responsibility has de nite boundaries: each person as a  rst cause exertssome in uence on what happens, and it is your part that is up to you. If you make astraightforward appeal to the reason of another person, your responsibility ends there and theother's responsibility begins.” (p. 337).Positively, the implication of this argument is that persons should not approach others as if theyare causal objects. It is respect for the autonomy of others that leads Kant to the idea that weshould not, through deception, try to make other persons act di erently. Negatively, it means thatwhat someone ends up doing with the help of another should generally not be held against thatother. Accordingly, in Kant’s story, the wrong you can commit is the relatively minor -we wouldsay- wrong that is lying. The bigger wrong of murder looming in the background is not for you toworry about.III. Respect for autonomy as a criterion for rules of secondary liabilityNow clearly, neither Kant’s view that lying makes you responsible for all consequences thatfollow from it nor his claim that telling the truth can never be wrong are re ected in the law. TheDutch Criminal Code for instance explicitly mentions intentionally providing information as aground for accomplice liability (art. 48-2), rendering the argument that telling the murderer thetruth is criminal a simple one. We also do not want to argue that this conclusion is wrong or thatin light of Kant’s argument some more general large overhaul of the law should take place. Thelaw on secondary liability is not strictly Kantian –or consequentialist, for that matter- but re ectsand should re ect elements of both theories as well as other considerations.Our more modest claim is instead that, next to other considerations, there should also be room -more room- for the Kantian concern of respect for autonomy in normative discussions aboutsecondary liability. It is our impression that most normative arguments made in discussionssurrounding secondary liability are, often implicitly, consequentialist. The argument that stricterrules of secondary liability could prevent serious wrongs is for instance consequentialist. And so isthe opposite argument that a strict regime can also be too strict, when cooperation that wouldlead to good things is discouraged. But also arguments in discussions about more speci c regimescan often be understood in consequentialist terms. An example is the argument sometimesbrought against due diligence regimes that such regimes may lead to a mere ticking of boxes thatabsolves businesses from liability while failing to prevent the wrongs it is meant to prevent. Nextto arguments of this kind, which are important, we argue that a di erent sort of argument thatdoes not look at the consequences of the acts of secondary actors but instead asks whether whateventually happens is for the secondary actor to worry about in the  rst place, should not beoverlooked.This leads us to two takeaways. Firstly, recognizing this kind of argument may allow us tounderstand existing law better, in so far as the law re ects concerns related to respect forautonomy. Secondly, adding respect for autonomy to our normative toolbox may at times alsolead us to di erent conclusions. For both of these points, it is important to note that considerations based on respect forautonomy and consequentialist considerations do not always coincide. That is to say, thearguments that follow from these considerations in favour of or against holding a secondary actorliable are di erent and can support opposing conclusions. The above discussion has also madeclear that arguments grounded in respect for autonomy serve to support the conclusion thatsecondary actors should escape liability. But, when concern for autonomy is not a concern,arguments in favour of liability can be accorded more weight. Consequentialist, retributivist, andother arguments for far-reaching liability then  nd their full force. Accordingly, even thoughrespect for autonomy can only pose an obstacle towards holding secondary actors responsible,this does not imply that we argue for less secondary liability.In the following section, we aim to illustrate how respect for autonomy relates to questions ofsecondary liability by re ecting on a number of central notions and types of situations relating tosecondary liability from the perspective of respect for autonomy.IV. Respect for autonomy and concepts of secondary liability‘Autonomy’ combines the Greek words ‘autos’ (αὐτός) and ‘nomos’ (νόμος) which can betranslated as ‘self’ and ‘law’ or ‘rule’. Autonomy, then, is self-rule. Respect for autonomyaccordingly gives a reason not to (legally require secondary actors to) interfere with the projectsof persons that are, in the relevant respect, really theirs. Turning to scenarios that may involvesecondary liability, what we propose is that when a (criminal) project is really the project ofmultiple actors working together, the idea of respect for autonomy  nds no application, becauseit is contradictory to say that a secondary actor has reason not to interfere with a project that ishis own. The less the principal’s enterprise is also that of the secondary actor, the more respectfor autonomy becomes a concern.When can a secondary actor be said to be a co-author of the principal’s project? Both knowledgeof the contribution and intent to bring about the crime as well as a larger factual contributioncould be seen as supporting this conclusion. Authorship points  rst, however, to a strong mentalelement. No matter how large a factual contribution a secondary actor makes, in the absence ofintent, it would be strange to regard the actor as a co-author of the crime. In cases in whichsecondary actors only have knowledge of the crime and their contribution to it, respect forautonomy is not a concern. This is precisely the point of Kant’s parable: seen from the idea ofrespect for autonomy, the foreseeability of some undesirable consequence is not a su cientreason to require the helper to act di erently, as the responsibility for this consequence lies,prima facie, with the future principal o ender.As an application of the idea of respect for autonomy and its corollary of authorship to the law ofsecondary liability, consider the situation, also discussed by Nicky Touw in a recent blog post onthis website, of multinational corporations (MNCs) that purchase cotton which can be linked toUyghur forced labour. Should these companies face liability? The rationale of respect forautonomy neatly tracks the conditions under which lawyers would be tempted to reply “yes”. Themore involved companies are with the rest of the supply chain, the less respect for autonomyposes a problem to holding them responsible for what occurs in supply chains. It isuncontroversial that consumers should not face liability for standing at the end of blood-riddensupply chains, for instance by wearing cotton with genocidal origins. On the other end of thespectrum, companies which only have shell corporations of their own making standing betweenthem and serious human rights violations are really the authors or co-authors of the wrongsupstream and should accordingly be held legally responsible.V. ConclusionIn this blog, we turned to Kant to re ect on current discussions surrounding secondary liability.These discussions largely take place in consequentialist terms. This makes sense, for the need torevisit questions of secondary liability is grounded on the increasing in uence that primarilyMNCs and states can exercise over others in our current age. Consequentialism provides thelanguage to scrutinize powerful actors and their actions by being focused on the consequencesthey produce.Yet it would be wrong to link increasing in uence to increasing responsibility simpliciter. Why is ituncontroversial that consumers should not face liability for buying products in the supermarketcoming from blood-ridden supply chains? Or why should powerful states and corporations notindeed be required to be their ‘brothers’ keepers’ whenever they could? Adding respect forautonomy to our normative toolbox may help us to understand our shared intuitions when itcomes to uncontroversial questions of this sort, and also to possibly reach better conclusionswhen things are less clear. For our purposes, it is important to note that this should be understood to include entities inwhich persons work together. Some argument is needed to go from natural persons tocorporations and states. For what we aim to say here, it should su ce to say that incorporatedagents can do things, that their members’ capacity to re ect on what they do does not disappearwhen they act together, and that accordingly there is no clear reason why the idea that oneshould prima facie not be required to interfere with others’ projects does not equally apply whensuch interference would come from a group of persons acting in close cooperation. Thesubsequent question of responsibility -whether corporate agents can be responsible and whatthis would mean and should entail- is a separate question.Supply chain Business and human rights Consequentialism KantRelated articlesHuman Rights Due Diligence: Turning Ideals into LawBringing Transnational Human Rights Torts Cases Against Powerful Actors of the Global NorthAutonomous Weapons Systems and the Liability Gap, Part One: Introduction to AutonomousWeapons Systems and International Criminal LiabilityAccess to supply chain information: stopped at the border by customs?The UK Vedanta Case and Parent Company LiabilityPutting an End to the Application of Foreign Law in Cross-Border Tort Cases for Serious HumanRights Violations?1 Prev Next Tag cloudaccomplice liability 3 Aiding and abetting 11 Alien tort statute 3 Arms export 9Autonomous Weapons 2 banking and  nances 1 BNP Paribas 1 Business and human rights 20bystander liability 1 Canada 1 Child slave labour 2 China 2 Civil law 9 cobalt 1Command responsibility 1 Consequentialism 1 constructive knowlegde standard 1Corporate criminal liability 10 crime of aggression 2 Criminal law 25 Criminal membership 2DARS 3 Data Protection Act 1 death penalty 1 Democratic Republic of Congo 1Doctrine of adoption 1 Domestic law 9 DPA 1 Dual-use 1 Due diligence 11 ECHR 4Ecocide 2 ECtHR 5 Europe 8 export licencing 2 Facebook 1 France 3 Gemmeker 1Germany 1 Guiding principles 4 Holocaust 1 ICC 6 ICTY 1International Humanitarian Law 4 JCE 1 Jurisdiction 5 Kant 1 MLA 1Mutual legal assistance 1 Myanmar 1 Netslé 1 OECD guidelines 1 Parent company liability 4participation in a venture 1 police brutality 1 Private international law 1 Public scrutiny 1Russia 5 Social Media 3 Soering liability 1 South America 1 State responsibility 10State-owned enterprise 1 Strict liability 1 Sudan 1 Supply chain 7 Syria 5 Technology 2Terrorism 2 The Netherlands 4 Tort law 8 U.S. Supreme Court 2 Ukraine 4 UNGPs 1United States 5 Westerbork 1 World War II 1contact/ colophon/ disclaimer

‘Knock Knock’: On respect for autonomy as a criterion for rules of secondary liability

https://pure.uva.nl/ws/files/143247474/_Knock_Knock_On_respect_for_autonomy_as_a_criterion_for_rules_of_secondary_liability_Rethinking_SLIC.pdf

‘Knock Knock’: On respect for autonomy as a criterion for rules of secondary liability

Abstract

Similar works

Full text

Available Versions

International Migration, Integration and Social Cohesion online publications