You are on page 1of 19

7

The Triadic Relational Structure


of Responsibility: A Defence
Alon Harel *

1. Introduction

Duff s Answering for Crime: Responsibility and Liability in the Criminal Law (2007)
combines the values, ideals, and aspirations of liberal theory with the doctrinal
sophistication of the lawyer. It is the aim of this paper to investigate the normative
foundations of Duff s theory of responsibility and ground it in the ideal of self-
governance.
Many attempts at developing a liberal theory of criminal law fail to face the
doctrinal realities of criminal lawtheir commitment to liberal values and ideals
comes at the expense of giving a fair account for well-entrenched legal principles.
Liberal fundamentalism of this kind insists on interpreting legal doctrine in light of
abstract ideals and values and without taking at face value the diversity and
complexity of existing criminal law norms.1 Other accounts of criminal law capture
the doctrinal complexity of criminal law but fail to identify and characterize the
values animating criminal law doctrine. In contrast to both camps, Duff provides
an account which is attentive to the doctrinal complexity of criminal law and, at the
same time, maintains a commitment to liberal values. This paper attempts to
solidify the liberal foundations of Duff s analysis of responsibility. It establishes
that the structural features of responsibility in general as identied by Duff (and not
merely criminal responsibility) are congenial to liberal valuesthe values of self-
governance. It also establishes the need to ground Duff s sophisticated account of
criminal responsibility in political theory, in particular, in a better understanding of
the nature of citizenship, the nature of the state, and the concept of the political.
Duff s proposed conceptual structure of responsibility captures accurately the
practices of attributing responsibility in general as well as the more specic

* Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal law, Hebrew Univer-
sity Law Faculty; Visiting Professor, Boston University School of Law. I am grateful to Oren
Blumenfeld, Therese Bjorkholm, Rowan Cruft, Brett Kaufman, and Lucia Zedner for their comments
on earlier versions of this paper.
1
Duff exposes this fact in his excellent criticisms of various liberal theorists. See e.g., the criticisms
of Michael Moores theory concerning the act requirement in criminal law (Duff 2007: 969).

The Triadic Relational Structure of Responsibility: A Defence. Alon Harel.


Oxford University Press 2011. Published 2011 by Oxford University Press.
104 Responsibility
characteristics of attributing criminal responsibility. But it is unclear whether these
practices can be grounded in liberal values and if they can what these liberal values
are. This article argues that what ultimately can justify Duff s structure of respon-
sibility and the limitations on the attribution of criminal responsibility resulting
from this structure are not ideals of negative liberty but ideals of positive liberty, in
particular, ideals of self-governance. Duff s observation that responsibility is always
owed to fellow citizens and is attributed to an agent in virtue of her citizenship is
essential to the realization of ideals of self-governance. Furthermore I argue that the
explanation in terms of self-governance applies not only to civic responsibilities; it
can also explain other types of responsibility.
Part 2 presents Duff s analysis of the concepts of responsibility and criminal
responsibility; in particular, it focuses on the triadic relational structure offered by
Duff as central to the understanding of responsibility. Part 3 develops the view that
the triadic relational structure cannot be grounded in ideals of negative liberty.
Part 4 justies the triadic relational structure in terms of self-governance. It also
examines the implications of this justication to criminal responsibility. Last it
shows the need for complementing the formal analysis of responsibility (in terms of
the triadic relational structure) with a substantive theory concerning the nature of
the civic enterprise.

2. The Triadic Structure of Responsibility


Duff believes that responsibility ought to be sharply differentiated from liability
he equates the concept of responsibility with answerability. Responsibility consists
of ones duty to be answerable, i.e. to give an account for ones deeds (or emotions,
mental states, character, or whatever). The duty to give an account as understood
by Duff is triggered only when the agent performed an action which she has a
reason not to perform (Duff 2007: 22).2 Yet being responsible does not entail being
liable, as the person who is required to give an account may provide a justication
or an excuse which establishes that although she is responsible for whatever she is
charged with, she is not liable. Excuses or justications serve to block the presump-
tive transition from responsibility to liability (Duff 2007: 22). The attribution of
responsibility is therefore a necessary but not sufcient condition for the attribution
of liability.
The central characteristic of responsibility as understood by Duff is the triadic
relational concept. Responsibility is characterized as a complex relation between an
agent A who is responsible for something X to somebody S and in virtue of satisfying
some normatively laden description that makes A responsible for X. This analysis is
a conceptual analysis of responsibility in general; to be responsible presupposes that

2
It is thus a more narrow duty than the more general but diffused duty to be willing to give an
account for every action irrespective of whether a person has a reason not to perform the action.
Answerability, as understood by Duff, is a duty triggered by the fact that a prima facie wrong was
committed by the agent.
The Triadic Relational Structure of Responsibility 105

there is someone to whom one is responsible and such responsibility is owed


in virtue of a certain role of the agent to whom responsibility is attributed (Duff
2007: 23).
Criminal responsibility is a type of responsibility that can be differentiated from
other forms of responsibility by identifying to whom it is owed and in virtue of what.
More specically, criminal responsibility is characterized as responsibility that is
owed to other citizens (or the state) in virtue of ones role as a citizen. Furthermore Duff
believes that understanding the nature of criminal responsibility presupposes an
understanding of the nature and the values of the civic enterprise within which such
attribution of responsibility takes place. The civic enterprise consists of the enter-
prise of living together as citizens and not for instance as moral agents, neighbours,
friends, or subjects.
The triadic relationship identied by Duff is important for various reasons. It
explains how we may acquire new responsibilities and be freed of old responsibil-
ities. As we join an organization (or, more generally, join what I shall label below, a
unit of responsibility) or leave such a unit, we acquire new responsibilities or are
freed from old responsibilities. Most importantly, it explains the fact that not every
infringement of responsibility is, properly speaking, the business of every agent
(Duff 2007: 24, 501). In the context of criminal law, the triadic relation seems
also to be consistent with the strongly held conviction that criminal law is a
minimalist toola tool which ought to be scarcely used. The triadic relational
structure excludes in a principled way from the scope of criminal responsibility
many responsibilities we have towards each other not because they are not genuine
responsibilities but because they are not owed by us to each other as citizens, or in
virtue of being citizens. These are responsibilities which are therefore precluded from
the scope of criminal law not because they do not give rise to genuine duties of
answerability but because these answerability duties are not properly speaking
criminal law duties as they are not owed by us in virtue of being members of
a polity.
The triadic structure of responsibility is both benecial and costly from the point
of view of the agent whose responsibility is at stake. It is benecial as one important
way of addressing a grievance is not to deny that I am responsible for the action (or
mental state, emotions, or character) giving rise to the grievance, or even to dispute
the transition from responsibility to liability but merely to deny that the responsi-
bility is owed to the agent raising the grievance. Yes, I can say, you are right in
every single accusation you have made and I indeed failed to honour my respon-
sibilities towards my boss. Nevertheless, you are my neighbour not my boss and,
consequently, it is none of your business as I am not responsible to you. Interest-
ingly such an answer does not only silence the challenger; it may often be also a
form of condemnation of the challenger for daring to challenge the agent. Such a
condemnation is not based on the conviction that the challenge is unsound; instead
it is based on the fact that the challenge is not initiated or triggered by the
appropriate agent. A claim raised by the wrong agent is not merely void in the
sense that it does not give rise to genuine duties of answerability; it may also provide
106 Responsibility
the basis for condemnation of the agent who unjustiably claims jurisdiction over
the matter.
At the same time, the triadic relational structure of responsibility is also costly for
the agent to whom responsibility is being attributed as it requires the agent to
provide not merely an answer or an account for the allegations directed against her
but the answer or the account that will satisfy the particular entity to whom she is
responsible (Duff 2007: 28). The identity of the entity towards whom one is
responsible determines the nature of the answer; it should be an answer which
addresses the concerns of the particular entity to whom one is responsible.
Who can be the entity to whom we are responsible and in virtue of what fact do
we become responsible? Duff is careful not to identify too strictly those entities
towards whom we can become responsible. He concedes, for instance, the possibil-
ity that the scope of entities towards whom we may be responsible may be large and
even universal. Perhaps there are certain moral responsibilities which we owe to
every moral agent. At the same time, he argues that most typically the scope of
entities to whom we are responsible is more limited (Duff 2007: 267).
While Duff carefully examines the possibility of having responsibilities that are
universal in the sense that they are owed to everybody, he does not examine the
possibility of what can be labelled a universal entity of responsibility, namely the
possibility of an entity towards whom one is answerable for each and every
infringement of ones responsibilities irrespective of the nature of these responsi-
bilities. Perhaps God served as such an entity in certain traditions, but I cannot
think of other entities which can be described as universal in this sense.
So far we have focused our attention on the fact that responsibilities are always
(or almost always) owed to an entity. Let us briey examine the additional
important feature of the triadic relational structurenamely, the fact that respon-
sibilities are owed in virtue of some normatively laden description, typically a
description of a role that I satisfy (Duff 2007: 23). These responsibility-laden
descriptionssuch as teacher, parent, or member of a church or a teamare
typically interrelated with institutional (or more broadly human) practices. Thus
our parental responsibilities emerge from our roles as parents, our pedagogical
responsibilities emerge from our roles as teachers, and our moral responsibilities
emerge from our being moral agents.
In each one of the different spheres of responsibility, responsibility is attributed
to an agent in virtue of its membership in a unit which identies certain roles that
the agent occupies within these units. The professional unit is the unit within
which members of the professional unit owe each other professional responsibil-
ities; the family is a unit within which agents owe each other familial responsibil-
ities; and the state, as we show below, is a unit within which citizens owe each other
civic responsibilities. We can call these units units of responsibility. Some of these
units are structured institutions governed by conventional rules and well-dened
practices, while others are less structured, such as the unit consisting of all moral
agents who owe each other moral responsibilities as human beings/moral agents.
It is evident from this analysis that the questions regarding to whom one owes
responsibilities and in virtue of what are interrelated. My responsibilities as a teacher
The Triadic Relational Structure of Responsibility 107

are owed to my students, and my responsibilities as a parent are owed to my


children. They are also owed in virtue of being a teacher or being a parent.
Identifying the agent to whom we are responsible often helps us to articulate the
role in virtue of which we are responsible, and identifying the role in virtue of which
we are responsible helps to identify the entities to whom we are responsible.
Although I am not going to argue for it here, it seems that there is no conceptual
priority to any of these variables. Having responsibilities to my students does not
exist prior to having responsibilities as a teacher. There is a mutual interdependence
between the normatively laden descriptions (such as teachers or neighbour) and the
entities towards whom responsibilities are owed (such as students or neighbours).
Note that in emphasizing the entities towards whom we are responsible and in
virtue of what, we are engaged in a both descriptive and a normative undertaking
(Duff 2007: 28). We can describe an existing practice as a practice which identies
entities towards whom responsibility is being attributed in virtue of a certain feature
while denying that such responsibility ought to be attributed in virtue of that
feature. We may also be engaged in a normative enterprise when we demand that
responsibility be attributed to an agent in virtue of a certain feature even though
existing practices do not attribute such responsibilities to the relevant agent.
Challenging the responsibilities attributed to a person towards an entity can be
done on various grounds. Sometimes we may challenge the justiability of the role
itself. Thus, for instance, we condemn slavery and maintain that the responsibilities
attributed under slavery to slaves (or masters) are illegitimate. In other cases we may
uphold the practice (or the institution) but deny that a particular responsibility
which is attributed to an agent within that practice ought to be attributed to that
agent, as we believe that the role of that agent is not one which ought to give rise to
such responsibilities. In such cases the agent challenging the attribution of respon-
sibility can either deny that the relevant agent has such responsibilities or concede
that she has such responsibilities but deny that they are owed in virtue of the
particular role she holds. Thus a teacher can deny altogether that she has a
responsibility to care for the nancial needs of her students or she can deny that
she has such a responsibility as a teacher but concedes that such a responsibility
constitutes part of the responsibilities of any human being or any citizen towards
any other.
Criminal responsibility is a particular species of responsibility and differentiating
criminal responsibility from other forms of responsibility requires identifying the
relevant variables of the triadic relational structure: to whom criminal responsibility
is owed and in virtue of what. Identifying these variables requires examining the
practices and the norms of criminal law and the ways in which it operates in our
society.
Perhaps the most important starting point of Duff s investigation of the nature
of criminal responsibility is his assertion that criminal law speaks to those whom it
claims to bind (Duff 2007: 43), i.e., those to whom criminal law attributes
responsibility. As we are engaged in a normative enterprise, I believe we need to
introduce a minor amendment to this assertion. Instead of identifying those who
108 Responsibility
criminal law claims to bind, we ought to identify who criminal law can (at least in
principle) legitimately or justiably claim to bind. This task cannot ignore who
criminal law, as a matter of fact, claims to bind. As we are interested in criminal law
responsibilities, we cannot ignore what criminal law claims. Yet, at the same time,
we cannot be bound by every doctrinal determination of any particular criminal law
system, as ultimately we are engaged in a normative enterprise: the enterprise of
identifying those who are morally bound (or can be bound) by criminal law.
Duff explores several answers to this question. He rst examines whether
criminal law binds those who reside in a particular territory. The difculty in this
proposal is that residing in a particular territory is too thin a concept because it is a
morally irrelevant fact. To engage in a more robust normative enterprise it is
necessary to identify what binds people togetherwhat makes people live together
rather than merely besides each other (Duff 2007: 44). Similarly, Duff rejects the
idea that criminal law binds us simply in virtue of the fact that we are moral agents.
In his view this is an imperialistic view, as it requires national legislatures to become
too interventionist and to make normative determinations which are beyond the
legitimate scope of criminal law.
The most plausible view is to understand criminal law as binding together
citizens of a polity. Such an understanding can explain the value of the enterprise
of criminal law as an enterprise which serves to solidify us as citizens who are bound
by the values of the polity and who owe each other responsibilities as citizens. These
responsibilities are determined by the nature of civic enterprise, namely the
enterprise of living together as and in a polity. . . . (Duff 2007: 50). The rules of
criminal law are constitutive of our collective existence; they transform us from a
mere group of individuals into a self-governing polity.
This vision of criminal law has important implications for understanding the
status of defendants. Duff s understanding of responsibility grants defendants a
special statusone which lies between two extremes: the outlaw on the one hand
and the obedient subject on the other. Let me describe these two extremes by using
Rousseaus The Social Contract. In some parts of The Social Contract, Rousseau
describes the offenders as enemies of the polity since every malefactor, by attacking
the social right, becomes by his crimes a rebel and a traitor to his country; by
violating its laws, he ceases to be a member of it and, in fact makes war upon it
(Rousseau 1762: 31). Despite its seemingly anachronistic avour, this view has had
some inuence on contemporary understandings of certain forms of criminality
(Zedner 2010: 3912). In other parts, Rousseau describes offenders as bound by
the general will and hence he claims that they are ultimately obliged to follow the
dictates of the sovereign, whatever their content is. In his view, The punishment of
death inicted on criminals may be considered from the same point of view: it is to
secure himself from being the victim of assassins that a man consents to die if he
becomes an assassin (Rousseau 1762: 31). Thus, under the second view, the
criminal ought to yield to the punishment, as the punishment is part of the contract
to follow whatever is considered to be expedient for the state. Rousseau believes
that when the prince says to him: It is expedient for the state that thou shouldst
The Triadic Relational Structure of Responsibility 109

die, he ought to die because it is only on that condition that he enjoyed that
security up to that moment (Rousseau 1762: 31).
Duff resists both of these extreme alternatives. The defendant is not an enemy of
the statehe is a partner to a moral discourse and also has obligations towards the
state, but these obligations do not make him a mere obedient subject of the state.
He is not an enemy but he is also not a mere instrument whose life and liberty are at
the mercy of the sovereign. Instead, he is an agent who conducts a dialogue with the
state in which the scope of his responsibilities is discussed.3
This vision may raise concern that the type of responsibilities and protections
granted by criminal law be limited to citizens. As criminal law theorists have noted
there has been a tendency in recent years to limit the protections granted by
criminal law to citizens (Zedner 2010). Duff is attentive to this concern and he
explicitly extends the scope of criminal law to include residents and visitors to the
polity (Duff 2007: 545).
But seeking a normative justication for the triadic relational structure of
responsibility is not as easy a task as may seem. In challenging the conviction
that responsibilities are owed to somebody, John Gardner argues as follows:
But why does it need to be a particular interlocutor? In respect of the same wrong or mistake,
couldnt I assert my basic responsibility by offering the same account of myself to everyone
I come across, from judges in the Old Bailey to friends in the pub to strangers on the bus?
(Gardner 2003: 165)
Gardner questions whether there are any principled reasons why responsibility
ought to be owed to somebody. Gardner raises two interrelated objections to the
view that responsibility is owed to an entity. First, Gardner develops the concept of
basic responsibility which is based on an Aristotelian view of human nature. In his
view responsibility involves primarily ones ability to explain oneself, to give an
intelligible account of oneself, to answer for oneself, as a rational being (Gardner
2003: 161). Second he believes that given this understanding of basic responsibility,
it follows that one ought to be willing (at least in principle) to offer an account of
oneself to everyone from judges in the Old Bailey to friends in the pub to strangers
on the bus, and perhaps even that all have a right to demand such an account.
I maintain that Gardners intriguing argument fails on both accounts. First the
concept of basic responsibility, namely ones ability (or duty) to give an account of

3
This view supports Duff s characterization of his theory as a liberal theory. Duff identies two
additional implications of this analysis which are particularly congenial to liberal values. First, he points
out that this understanding of criminal law responsibilities leaves ample space for diverse spheres of
human existencespheres that are not governed by criminal law. Individuals are not merely members
of a polity; they are also neighbours, colleagues, teachers, and employees. Their responsibilities in these
spheres are not governed by the state; they are governed by norms, conventions, and practices
developed independently of the state. Second, this understanding of criminal law responsibilities
imposes strict limits on the types of wrongdoing that can be regulated by criminal law. It is only the
wrongdoings that are founded on responsibilities that we owe to each other by virtue of being members
of the polity that can legitimately be regulated by criminal law. Under this view, we are criminally
responsible not to the whole world of moral agents, but to our fellow citizens and criminal law is
properly concerned not with moral wrongs as such, but with such public wrongs as are internal to the
particular polity whose law it is (Duff 2007: 53).
110 Responsibility
oneself, does not imply that ultimately this account is not an account about ones
failure to full ones responsibilities towards others. The mere fact that an agent has
to be able to give an account of oneself does not settle the question of what the
content of that account is. Second I see no reason to believe (even as a presumptive
matter) that if one failed in meeting ones responsibilities (and, therefore, one ought
to account for this failure of oneself ) one has duties (or even reasons) to offer such
an account to everyone or that everyone has a right to demand such an account.4
Let me, however, press Gardners challenge and give it due consideration.
Perhaps Gardner urges us to care rst and above all that all our responsibilities be
effectively and fairly fullled, rather than about who the agents are to whom I am
answerable or in virtue of what. Why am I responsible to my students (or to the
institution I teach in) for failing to grade exams rather than towards my neighbour
or to the state, and why should this responsibility be classied as responsibility as a
teacher or as an employee rather than responsibility as a citizen or as a human being or
even as a universal responsibility owed to everybody at all times? Furthermore why
should we care about this categorization of responsibilities rather than simply about
the justiability of attributing responsibility?
One natural justication grounds the triadic relations in the value of negative
liberty. Criminal law is potentially oppressive. By limiting the scope of criminal
responsibilities only to a small subset of responsibilities, namely those that are owed
to my fellow citizens, criminal law protects our (negative) liberty. Section 3
challenges this view; it argues that the restriction on the scope of criminal respon-
sibilities to those owed by us as citizens or those who are owed by us to our fellow
citizens, as well as similar restrictions on the scope of the entities towards whom we
are responsible for our behaviour, cannot be founded on principles of negative
liberty.

3. Negative Liberty and the Excessive Burdens Arguments


The triadic relational structure of responsibility exempts me from burdensome
duties because it strictly connes the identity of the entities towards whom I am
responsible. As shown above, one important way of addressing a grievance is not to
deny that I am responsible for the action (or the mental state or character) giving
rise to the grievance, but merely to deny that the responsibility is owed to the agent
raising the grievance. It is indeed my responsibility as a teacher to prepare my
classes, but it is not your business (as my neighbour) to criticize me for failing to do
so, as you are not my student. Your lack of standing to demand an answer is a great
benet to me, as it protects me from burdens to which I would be otherwise

4
It seems that there are two conicting considerations. On the one hand it seems that solidarity
entitles or even obliges individuals to care about others and, consequently, to demand an account for
others failures to meet their responsibilities. On the other hand it seems that unlimited demands of
this type threaten the living space of individuals and impose too great burdens on them. Gardner could
press us to aspire for greater social solidarity while Duff could point out the burdens resulting from
such solidarity.
The Triadic Relational Structure of Responsibility 111

exposed. In the criminal law context, this line of reasoning is related to the almost-
universal observation of liberal theorists that criminal law ought to be minimalist in
its aspirations and in its willingness to criminalize behaviour. Perhaps the triadic
relational structure is a mechanism which is designed to constrain criminal law as
well as other units of responsibility for reasons that are familiar to those who warn
us of over-criminalization (Husak 2008).
Before we examine whether the triadic relational structure can be founded on the
concern for over-criminalization, let us specify two conditions an adequate justi-
cation of the triadic relational structure (as understood by Duff ) should satisfy.
Given that the triadic relational structure is not specic to criminal responsibility, it
is important to explain not only the foundations of the specic triadic relational
structure of criminal responsibility but, more generally, the foundations underlying
the triadic relational structure of responsibility as such. Furthermore, to be faithful
to the spirit of Duff s enterprise the justication of the triadic relational structure
must be a principled normative justication rather than a pragmatic one. Although
the precise details of our responsibilities (and to whom and in virtue of what we owe
them) may be justied in pragmatic terms, the triadic structure of responsibility as
such must be grounded in principled normative concerns. This is because Duff
regards the triadic relational structure as fundamental to the concept of responsi-
bility; it is not a contingent aspect of responsibility; it is constitutive of the concept
of responsibility and of its normative signicance.
A careful scrutiny establishes that the standard arguments against over-criminalization
are not the type of arguments which can ground support for the triadic relational
structure simply because they are neither sufciently general (i.e., apply to responsibility
in general and not merely to criminal law responsibilities) nor sufciently principled
(rather than pragmatic).
Douglas Husak develops a comprehensive attack on over-criminalization. He
believes that over-criminalization depletes the resources of the criminal law system
(Husak 2008: 12). It also undermines respect for the criminal law system as people
are convicted for offences which are not regarded by the public as sufciently
serious and, consequently, it erodes the stigma attached to criminal law and
undermines obedience. The state cannot effectively stigmatize a person for
engaging in an activity that few condemn and almost everyone performs. Last,
over-criminalization grants prosecutors too great a discretion given the uncertainty
and ambiguity that over-criminalization generates. The overuse of discretionary
powers is a serious concern because it grants ofcials great power over citizens and it
may too easily be abused or used in a prejudiced way (Husak 2008: 214). Alan
Brudner suggests that criminal responsibility is distinctive and ought to be used
cautiously because the sanctions it imposes are particularly severe. In his view, the
forcible restraint of an individuals liberty by equal human beings requires a
justication of an order altogether different from one suitable for expressions of
condemnatory moral opinion, which the addressee is free to internalize or deect
(Brudner 2009: 17).
As important as these concerns are, they cannot justify the triadic relational
structure. The traditional concern on the part of criminal law theorists is the
112 Responsibility
potentially oppressive nature of the system through the broadening of the scope of
prohibited activities. Yet the limits imposed by the triadic relational structure are
not limits that can be properly understood as protecting us from over-expansive
prohibitions. After all, if I am responsible as a teacher for failing to prepare my
classes, I have a real obligation to prepare these classes even if I do not owe it to my
neighbour or to the state. The fact that I am not answerable to my neighbour or to
the state for having failed to full these responsibilities does not exempt me from
responsibility, or make the responsibility less urgent or burdensome. Unlike the
concerns of those who argue against over-criminalization, the central concern of the
triadic relational structure is not to limit the content of the responsibilities I have, as
it is assumed in the rst place that such responsibilities exist.5 Instead, the central
concern is to limit the scope of entities towards whom I am responsible. This limit
cannot therefore be properly construed as a limit designed to protect us from too
many oppressive responsibilities.6
In addition, some of the traditional concerns raised against criminalization are
too specic to criminal law and cannot provide a foundation for the triadic
relational structure as such. Husaks concern that the stigma attached to criminality
may be eroded is a concern that is specic to criminal law responsibilities. It is not
obvious that all units of responsibility ought to use stigma in enforcing a persons
responsibilities. There are also reasons which are specic to criminal law which
justify the reluctance of the criminal law system to use broad discretionary powers.
The criminal law system governs all citizens and it therefore faces a great diversity of
moral and political views. Other units of responsibility benet from greater
homogeneity and thus can perhaps more legitimately use greater discretionary
powers granted to ofcials. Other reasons raised by Husak seem to rely too heavily
on pragmatic concerns such as the risks of depleting the resources of the system and
the concerns for deterrence. Brudners suggestion that criminal law is distinctive
because the powers it grants are especially oppressive is also designed to apply to
criminal law responsibilities not to the triadic relational structure as such.
But perhaps some of the arguments provided by Husak and Brudner could be
generalized. Perhaps these arguments are only specic illustrations of more general
phenomena, namely that each unit of responsibility is designed to deal with
different forms of responsibility. Arguably, in order to guarantee the effectiveness
and the fairness of the unit of responsibility, the entity towards whom responsibility

5
Some concerns about over-criminalization are based on the view that individuals have a right to do
wrong, as Waldron famously stated (Waldron 1981). Yet they cannot serve to justify the triadic relational
structure because the triadic relational structure presupposes that we are justied in attributing responsi-
bility in the rst place. It merely denies that our responsibility is owed to certain entities.
6
Perhaps however, as was suggested to me by Therese Bjorkholm, a free society ought to forgive us
for certain infringements of our responsibilities or even turn a blind eye towards some infringements.
Hence an overly effective enforcement of our responsibilities may be oppressive. I agree; and yet a lax
enforcement may also characterize the criminal law system. In fact the discretion of prosecutors may be
regarded as designed to facilitate such forgiveness on the part of the legal system. Forgiveness of this
type can even be better implemented by the criminal law system than by other institutions. The degree
to which an institution is capable of forgiving is a contingent fact about the institution; it cannot
provide principled grounds against criminalization.
The Triadic Relational Structure of Responsibility 113

is owed ought to satisfy certain conditions; it ought to be capable of evaluating the


situation in which the alleged violation took place, identify the scope of responsi-
bilities and judge the appropriateness of the imposition of sanctions. Husaks
arguments against over-criminalization can be generalized; they can teach us that
the limits of the powers of units of responsibility resulting from the triadic relational
structure are designed to guarantee the effectiveness and fairness of these units, i.e.
their accuracy and integrity.
Thus, for instance, Husaks analysis illustrates that large-scale and heterogeneous
units of responsibility (namely units consisting of individuals with diverse values
and conventions) such as the criminal law system differ from small-scale homoge-
nous ones. The former ought to be subjected to special constraints, e.g., they
should avoid the use of discretionary powers to prevent abusewhile the latter
need not impose such constraints. There are numerous institutional concerns of
this sort which are essential to the operation of some units of responsibility and not
to others. These constraints are the byproducts of contingent features of the
relevant unit of responsibility and the type of responsibilities characterizing these
units. The triadic relational structure is designed therefore to guarantee that the
institutional schemes are properly designed to serve their purpose: the fair and
efcacious operation of the different units of responsibility.
It follows from this analysis that we need to sustain different units of responsi-
bility which are in charge with guarding separate (and perhaps relatively insular)
spheres of responsibilities. Each unit of responsibility develops modes of operation
which are designed to address different type of responsibilities. Thus, the insistence
of criminal law on sustaining a high degree of certainty and predictability in
dening the nature of criminal responsibility may t the needs of criminal respon-
sibility but need not t the needs of other spheres of responsibility such as parental
duties.
It is clear that this analysis provides good reasons to limit the jurisdiction of
different units of responsibility. It can also provide an explanation for the limita-
tions on the scope of criminal responsibility. Yet these considerations are not the
ones which justify the limits resulting from the triadic relational structure. To
observe that institutional and instrumental limitations constrain the powers of units
of responsibility is important. To understand the nature of these limitations, one
ought to scrutinize carefully the institutional/structural weaknesses and strengths of
different units of responsibility and dene on the basis of these weaknesses and
strengths the scope of responsibilities which ought to be sustained by the relevant
unit. Yet, such an explanation does not establish the principled normative signi-
cance of the triadic relational structure. Accuracy, integrity, and effectiveness are
important values and it is imperative to take them into account, but it is a
contingent question which institutions are best capable of realizing these values
and there is no a priori reason to believe that the best way of realizing these values is
by endorsing the limitations imposed by the triadic relational structure of responsi-
bility. Perhaps one can design a universal unit of responsibility which is best in
terms of its efcacy, accuracy and integrity and, thus, all our responsibilities ought
to be owed to it.
114 Responsibility
To sum up, although both the concerns for over-criminalization and the triadic
relational structure of responsibility justify the imposition of constraints on the
scope of criminal responsibilities the nature of these constraints and the underlying
foundations of these constraints are different. Let us therefore focus our attention
on more general arguments for the triadic relational structure: a negative liberty
argument and an argument based on excessive burdens.
In Berlins words, liberty in the negative sense involves an answer to the
question: What is the area within which the subjecta person or group of
personsis or should be left to do or be what he is able to do or be, without
interference by other persons? (Berlin 1969: 1212). Negative liberty involves the
absence of interference in the exercise of choice by an agent. If one can establish
that the triadic relational structure of responsibility is congenial to negative liberty,
it would clearly provide the necessary liberal foundations for the triadic relational
structure.
As noted above, it seems that the fewer agents towards whom I am responsible,
the easier it is to infringe my responsibilities. Answerability towards an agent is a
means of supervision and monitoring which prevents or deters infringements.
Furthermore, being answerable to an agent is in itself a burden because (regardless
of whether there was an infringement or not) it requires the agent to scrutinize their
own actions, to provide evidence, and to engage in normative deliberation. Such a
costly engagement may, of course, end up in establishing that no responsibilities
have been violated. The fewer the agents towards whom I am responsible, the lower
the costs of answerability and thus the lesser the burdens resulting from responsi-
bility. Arguably each one of these claims can justify the triadic relational structure of
responsibility.
Yet it is easy to establish the aws in this argument. The claim that the triadic
relational structure is conducive to negative freedom as it facilitates infringements
of ones responsibilities is awed for the reason mentioned above that one is not free
to infringe these responsibilities and there is no reason to facilitate such an
infringement.7 If broadening the scope of entities towards whom one is answer-
able(e.g. by making me answerable to the university for having violated my
parental responsibilities or making me answerable to the state for having violated
my teaching responsibilities)is congenial to the faithful fullment of ones
responsibilities, it provides us reasons to broaden the scope of agents towards
whom one is responsible (subject of course to the institutional concerns raised
above).8
Perhaps the broadening of the scope of entities towards whom one is responsible
is unjustied not because it facilitates infringements of ones responsibilities but

7
See, however, the qualication discussed in n. 6.
8
At times there are privacy concerns which may be compromised by too broad duties of answer-
ability. Perhaps some violations of my parental responsibilities ought to be dealt with only within the
family as they ought to be kept condential. I agree and yet such considerations do not necessarily
preclude that the agent be answerable to other entities such as the state. Each unit of responsibility can
design mechanisms to limit the dissemination of information in cases where such limits are necessary to
protect condentiality.
The Triadic Relational Structure of Responsibility 115

because it imposes an excessively costly burden of answerability. Answerability and


accountability are burdensome even for individuals who have not infringed their
responsibilities. Yet the normative relevance of this observation is contingent on the
capacity of the entity towards whom one is responsible to make fair and accurate
judgements concerning responsibility. If my neighbour is fair-minded and infor-
mative with respect to my professional duties, the burdens which result from my
answerability to him do not seem excessive or unfair.
It seems therefore that neither the negative liberty argument nor the excessive
burdens argument can provide a compelling explanation for the triadic relational
structure. This is simply because negative liberty arguments are designed to limit
the scope of responsibilities of an agent, not the scope of the entities towards whom
one is responsible. In contrast the triadic relational structure is designed to limit not
the scope of responsibilities of agents but the scope of the entities towards whom
one is responsible. Section 4 investigates another explanation for the triadic
relational structure.

4. The Self-Governance Argument

The primary claim I wish to establish in this section is that the triadic relational
structure proposed by Duff can be justied in liberal terms on grounds of positive
libertyin particular on the ground that it protects the liberty of the participants in
the relevant unit of responsibility to govern themselves. More specically, I will
argue that the triadic relational structure of responsibility protects different spheres
of human activity in which norms and practices are created and modied by the
participants in these units.
This argument, I suggest, is not specic to criminal law responsibilities; it applies
to the triadic relational structure as such. Maintaining a civic unit of responsibility
allows citizens to govern themselves; maintaining a unit of responsibility governing
universities allows professors and students to govern their affairs; and so on.
Maintaining diverse units of responsibility, each of which puts its members
in charge of monitoring a different sphere, is conducive therefore to the value of
self-governance.
This view has two implications with respect to the political unit of responsibility
(the civic enterprise). First, by refusing to monitor responsibilities that are not owed
by us to each other as citizens, the state facilitates the creation of different commu-
nities in charge of norm-creation. While we are all citizens, we are not all teachers or
parents or scientists. Expanding the scope of criminal responsibilities to cover
responsibilities which we owe each other as teachers or scientists dilutes the powers
of teachers or scientists to govern their own affairs and deprives them of the liberties
to shape their collective future. It also allows those who have no stake in these
different activities to have a say in matters which do not affect them and thus allows
them to govern others. Second, by insisting that only the state is answerable for
violations of our civic responsibilities, we, as citizens, maintain control over what
civic responsibilities are. This latter observation explains well the resistance to the
116 Responsibility
use of shame penalties as well as to other schemes of privatization of criminal law.
Private governance of criminal law is oppressive because it allows private entities to
control our civic responsibilities; it privileges the judgements of some at the expense
of others (Harel 2008).9
This argument could be extended from the context of criminal law responsi-
bilities to the triadic relational structure as such. The triadic relational structure is
not based on the quality, accuracy, or efcacy of the judgements concerning
responsibility that it generates, but rather on how it enables or sustains the
autonomous governance of the members bound by the relevant practices and
norms.
To develop this argument, let us turn our attention back to the concept of units
of responsibility. Units of responsibility are units within which responsibility is
attributed to agents in accordance with the roles these agents occupy within these
units. Neighbourhood, for instance is a unit of responsibility as individuals who
reside in a neighbourhood owe responsibilities towards each other as neighbours.
The university is a unit of responsibility as students and professors owe responsi-
bilities towards each other as participants in the academic community.
The self-governance argument relies on the conviction that the development
of norms and practices in different spheres of life and within different units of
responsibility ought to be assigned to those who are members of the unit of
responsibility. As a citizen I am a participant in a civic enterprise and the civic
enterprise involves making choices concerning practices and norms governing this
enterprise. It would thus be wrong for the state to strip itself of the duty to govern
these responsibilities by privatizing them as it transfers the powers to determine
these responsibilities to inappropriate agents. Similarly, as a teacher, I am a partici-
pant in a pedagogical enterprise and this enterprise ought to be governed by norms
and practices that are constructed by the participants in the educational enterprise.
It would be wrong that the responsibilities belonging to the educational enterprise
be owed to the state as it deprives those who are participants in this enterprise of the
power to shape and control the nature of this enterprise. Making a teacher
answerable to the state or to his parents for violating his responsibilities as a teacher
deprives teachers, students, and universities of the liberty to dene the rules
governing the university. More generally, by broadening the scope of entities
towards whom I am responsible one dilutes the power of members of the unit of

9
Let me contrast this view with a more traditional approach that resists privatization on instru-
mental grounds, namely on the grounds that private entities are less capable of making fair and accurate
judgements. It is very common to resist the privatization of the criminal law system on the ground that
such privatization generates the wrong results. John Locke is the most famous advocate of this view:
To this strange doctrine, viz. That in the state of nature every one has the executive power of the law of
nature, I doubt not but it will be objected, that it is unreasonable for men to be judges in their own
cases, that selove will make men partial to themselves and their friends: and on the other side, that ill
nature, passion and revenge will carry them too far in punishing others; and hence nothing but
confusion and disorder will follow, and that therefore God hath certainly appointed government to
restrain the partiality and violence of men. I easily grant, that civil government is the proper remedy for
the inconveniencies of the state of nature, which must certainly be great, where men may be judges in
their own case. (Locke 1690: 12)
The Triadic Relational Structure of Responsibility 117

responsibility to make decisions with respect to this unit. The larger the number of
entities and, most importantly, the more alien these entities are to the values of the
enterprise, the lesser the power of members of the unit of responsibility to
determine their own fate.
To sum up, Duff s commitment to the triadic relational structure can be
justied as follows: Individuals conduct their lives in different spheres of life.
Each sphere is governed by a community that engages in an enterprise consisting
of a thick set of norms and practices. It is important that it is only (or primarily)
members of the unit of responsibility who ultimately determine the content of
these norms and practices. By limiting the scope of entities towards whom one is
responsible and by conforming to the dictates of the triadic relational structure one
guards the rights of the members of the unit of responsibility to govern themselves.
When the relevant unit of responsibility is the state and membership in the unit
is taken to be citizenship, the result is republican or semi-republican criminal law
theory under which citizens are called upon to govern themselves. This conclusion
also supports my understanding of Duff, as Duff himself is committed to republi-
can values and regards criminal responsibility as grounded in these values. In Duff s
words:
The law and the whole apparatus of the state supposedly speaks and act in our name on our
behalf: they are not the organs of a separate sovereign, but the formal institutional
manifestations and instruments of our shared political livesof the civic enterprise in
which we are collectively engaged . . . that is what makes the law, particularly the criminal
law, a common lawa law that is our law as citizens: its voice is not (should not be) the
voice of a sovereign who demands our obedience as subjects, but our own collective, civic
voice; it is a voice in which we speak to ourselves, as citizens, of the shared values and goals
by which our civic enterprise as a polity is constituted. (Duff 2007, 50)
If my hypothesis is correct, the republican values emphasized by Duff are merely an
example illustrating a much broader ideal: the ideal of individuals governing
themselves in different spheres of their lives when the sphere of the polity is merely
one of these spheres. The triadic relational structure facilitates the existence of
spheres of autonomous governance; the polity is merely one of these spheres. Self-
governance involves both negative and positive components. The negative argu-
ment requires that those who do not participate do not govern the affairs of others;
the positive component requires that members participating in the relevant activity
govern their own affairs. Let me present and examine three possible objections to
this proposal: the independence argument, the spillover argument, and the circu-
larity argument.
The independence argument draws a sharp distinction between the nature and
content of ones responsibilities and the entities towards whom one is answerable.
Arguably it is one thing to say that I am responsible to prepare my classes in certain
ways and it is another thing to say that I am answerable for failing to have done so to
a judge or to a friend or to a neighbour. If such separation can be maintained, the
autonomy of the members of a unit of responsibility is not affected by broadening
the scope of the entities towards whom one is responsible, because answerability to
118 Responsibility
an entity does not imply that the entity towards whom a person is answerable has
powers to determine the content or scope of responsibilities.
This objection fails to take seriously the concept of responsibility as understood
by Duff. Responsibility is dened by Duff as a matter of being responsible (i.e.
answerable) for something to some person or body, within a responsibility-ascribing
practice. The entity towards whom a person is answerable participates in the very
shaping of the norms and practices of the unit of responsibility. It is wrong to
regard the entities towards whom one is responsible as simply replicating existing
practices and norms which exist independently of them. Answerability within the
paradigm set by Duff involves a discourse between the person to whom responsi-
bility is being attributed and the person towards whom the former person is
responsible. The entities towards whom a person is answerable are not automatons
that replicate in their judgements xed and pre-existing norms shared by members
of the unit of responsibility. They are participants in the process of articulating
these norms and practices; their determinations are part of the practices and norms
governing the unit of responsibility.
It follows that answerability to the wrong agent (to an agent who is not a member
of the relevant community) is detrimental to the self-governance of the members
and weakens their power to govern themselves. Attributing criminal responsibility
for violating my duties to my students is wrong not because it infringes my negative
liberties to treat my students as I wish (since I do not have such liberties in the rst
place) but because the intervention of the state infringes on the rights of the
educational community to govern itself in accordance with its values. As long as
those values do not defy the purposes of the enterprise it is important that the
participants to the educational enterprise determine what the rules are.
The spillover argument maintains that the separation of units of responsibility is
an articial one and cannot be maintained. Under this view, the values and ideals
that characterize different units are ultimately similar such that a failure of units to
dene properly the content and nature of responsibilities has negative externalities
on other units. Arguably the interdependence of the different spheres precludes the
possibility of protecting the autonomy or insularity of the different spheres. Failure
to maintain ones responsibilities as a teacher is inevitably translated into failure in
other spheres as it indicates failure of the agent to full her duties and such a failure
indicates deciencies which would inevitably be manifested in other spheres. After
all the virtues which are characteristic of a good teacher are ones that could and
should be manifested in other spheres. Sincerity, commitment, loyalty, and devo-
tion as well as numerous other virtues are essential for the performance of ones
responsibilities in every sphere of ones life. If this is the case, then it seems
justiable for the state to be able to remedy serious defects in the governance of
responsibilities in other spheres and also for ofcials of other units of responsibility
to be alert to violations of ones duties as a citizen.
The spillover argument cannot be dismissed and I believe that there are circum-
stances in which it may justify intervention on the part of the state. In fact,
established institutional practices support the conclusion that the units of responsi-
bility are not totally autonomous and insular. This also explains the fact that the
The Triadic Relational Structure of Responsibility 119

control of the polity over units of responsibility is much larger than acknowledged
by Duff. After all, many of our responsibilities towards others are contractual ones
and the state, of course, has some control over the nature and the limitations of
contractual obligations.
Yet the spillover argument is not fatal to the self-governance argument. Instead it
requires a friendly amendment, namely recognizing that the units of responsibility
are not isolated from each other; they are interdependent and this interdependence
has institutional implications. But this fact does not undermine the concerns for the
autonomous governance of the different spheres.
The circularity objection challenges the self-governance argument on the
grounds that in principle there can be no intelligible way of dening the scope
and boundaries of units of responsibility (or at least of some units of responsibility)
in a way that is independent of dening the scope of entities towards whom one is
responsible. Thus, for instance, by making me answerable to an entity, which
belongs to a unit of responsibility, the unit of responsibility redenes thereby the
nature of the unit, its identity and the type of responsibilities of its participants.
Under the circularity objection, by making me answerable to the state for
violating my duties as a teacher, these duties thereby become civic responsibilities.
It follows therefore that what constitutes a violation of my civic responsibilities (and
therefore what should and can be properly criminalized) is determined by the
decisions of the polity to make me answerable to an ofcial of the state. The very
premise that there is a well-dened civic enterprise which determines what can and
cannot be criminalized is therefore unsound; in fact what is civic and what is not
civic is determined by the decision to criminalize or not to criminalize a particular
activity.
Arguably, the circularity argument does not infect all units of responsibility
because, unlike the civic enterprise, other units of responsibility are well-dened
and therefore constrain the unruly expansion of the scope of responsibilities they
govern. Yet a deeper examination reveals that other (non-civic) units of responsi-
bility are as vulnerable to the circularity objection as the state. Precisely as civic
responsibilities can expand (by incorporating them into the criminal law), so can
teaching responsibilities. Arguably teachers could and perhaps should serve as
spiritual leaders, role models, etc. In such cases their integrity outside the classroom
is central to fullling their responsibilities as teachers. It does not seem therefore
unintelligible to expand indenitely ones teaching responsibilities by making one
answerable to the university for violations of ones responsibilities towards ones
spouse. After all, how can an unfaithful husband be a model for his students?
The circularity objection implies that any decision to attribute responsibility to
an agent transforms the tasks of the unit of responsibility such that the new
responsibility becomes thereby a part of the enterprise of the relevant unit of
responsibility. There is no natural pre-institutional way of delineating the scope
of responsibilities of each unit. These responsibilities are the byproducts of con-
ventions created and sustained by the unit. Consequently, there is no principled
way of blocking an imperialistic expansion of the scope of teaching responsibilities,
civic responsibilities, or any other type of responsibilities.
120 Responsibility
Overcoming the circularity objection requires making judgements about what
properly concerns different units of responsibility. It requires therefore identifying
or specifying the enterprise which is to be realized by the relevant unit of responsi-
bility in a way which is detached or at least partially detached from the scope of
responsibilities attributed to agents by that unit. It seems to me that there are two
ways of doing so: an internal way and an external one.
First, one can dene the concerns of a unit of responsibility internally by
analysing the existing practices and norms of the unit of responsibility. The justied
attribution of civic responsibility depends therefore on the degree to which the new
responsibility ts the old responsibilities. Similarly, to decide whether the enterprise
of teaching involves spiritual guidance, one needs to learn the nature of the teaching
institution, its existing practices, and the norms governing it and judge on the basis
of these whether teaching in the relevant institution requires spiritual qualications.
Second, one can dene the concerns of the unit of responsibility externally. My
responsibilities as a parent, a neighbour, or a citizen result from the nature of the
enterprise, and the nature of the enterprise is, at least, partially determined
independently of the existing rules and practices of the particular unit of responsi-
bility. To determine the nature and the content of civic responsibilities one ought
to understand what the nature of politics is and what the boundaries of the
enterprise of politics are. In other words, one needs a theory of the political.
There is no doubt that the internal characterization of a unit of responsibility is
an important one. The practices and norms of a unit of responsibility generate a set
of expectations and these expectations ought to be honoured. Determining whether
I am responsible to the university or to my students for having violated my duties to
my spouse requires determining whether the institution is one that involves or
requires spiritual guidance. Such a determination may depend on the existing
conventions of the institution.
Yet an adequate defence of Duff s enterprise cannot rely exclusively on an
internal characterization of the unit of responsibility; it must make use also of
external characterization. This is because the internal characterization of a unit of
responsibility suffers from a fatal aw. The criminal law context is a good one to
illustrate this aw. If the characterization of the responsibilities governed by the
unit of responsibility is purely a matter of tness with its existing character, it
follows that the unit of responsibility can expand indenitely. My responsibilities as
a teacher can become civic responsibilities if the state so decides as long as it follows
its decision consistently by taking upon itself the task of being in charge of all
teaching responsibilities. Similarly the state can take upon itself an indenite
number of new responsibilities and thus change the nature and the scope of our
civic obligations. Yet the triadic relational structure in general and, more particu-
larly, our civic obligations cannot be expanded indenitely. Neither the state nor
other units of responsibility ought to become what I have labelled earlier a universal
unit of responsibility.
But to identify what responsibilities are appropriate for criminal law or what
responsibilities are suitable for the civic enterprise one needs to resort to political
The Triadic Relational Structure of Responsibility 121

theory. To overcome the circularity objection one needs a theory of the politicala
theory which will identify the nature of the civic enterprise. A comprehensive
defence of Duff s sophisticated legal theory needs therefore to be complemented by
political theory, in particular by a theory of the political. Without a theory of the
political, Duff s triadic relational structure cannot provide a comprehensive ac-
count of contemporary criminal law.

5. Conclusion

The task of this paper is to examine the normative foundations of the triadic
relational structure of responsibility and to see what implications can be drawn
from it with respect to the criminal law. Most importantly we have explored
whether and how the triadic relational structure can constrain the nature of our
civic responsibilities.
It was pointed out that considerations of negative liberty or excessive burdens
cannot provide a solid foundation for the triadic relational structure. Instead, I
suggested that the self-governance argument can provide a much more compelling
account of the triadic relational structure. Yet to provide solid foundations for the
limitations on the scope of criminal responsibility one needs a theory which will
dene the boundaries of the political. Without such a theory there is no principled
way of resisting the unruly expansion of the scope of political responsibilities.
Duff s sophisticated account of the foundations of liberal criminal law theory can
succeed if it is accompanied by a theory of the boundaries of the civic enterprise.

References
Berlin, I. (1969). Four Essays on Liberty. Oxford: Oxford University Press.
Brudner, A. (2009). Punishment and Freedom: A Liberal Theory of Penal Justice. Oxford:
Oxford University Press.
Duff, R. A. (2007). Answering for Crime: Responsibility and Liability in the Criminal Law.
Oxford: Hart Publishing.
Gardner, J. (2003). The Mark of Responsibility. Oxford Journal of Legal Studies, 23: 15171.
Harel, A. (2008). Why Only the State May Inict Criminal Sanctions: The Case Against
Privately Inicted Sanctions. Legal Theory, 14: 11333.
Husak, D. (2008). Overcriminalization: The Limits of the Criminal Law. Oxford: Oxford
University Press.
Locke, J. (1980 [1690]). Second Treatise of Government, (ed.) C. B. Macpherson.
Indianapolis: Hackett.
Rousseau, J. -J. (1954 [1762]). The Social Contract (trans. W. Kendall). Chicago: Henry
Regnery.
Waldron, J. (1981). A Right to Do Wrong. Ethics, 92: 2139.
Zedner, L. (2010). Security, the State, and the Citizen: The Changing Architecture of
Crime Control. New Criminal Law Review, 13: 379403.