“Relational criminal liability,” or one person’s criminal liability for the actions of another by way of a group of which both individuals are a part, generates a fundamental tension between collectivist and individualist approaches to liability. The collectivist approach, which reifies the group qua group, enables individuals to be liable for the acts of the group and the group to be liable for the acts of individuals. The individualist approach treats ind-viduals qua individuals, holding them liable only for their own conduct.
This tension sounds both in moral philosophy and legal theory. As to philosophy, Michael Bratman, Margaret Gilbert, and Christopher Kutz take an ultimately individualistic approach to assigning moral responsibility in a group context. John Searle, Raimo Tuomela, and others posit irreducible collective bodies, capable of intent and agency distinct from those of their individual members. As to legal theory, long-standing American legal norms treat individuals as individuals, whereas work by George P. Fletcher and, more recently, Gideon Yaffe and Jens David Ohlin suggest a collectivist turn.
This unresolved tension produces inconsistency, unpredictability, and normative failures in the determination of relational criminal liability. This Article relieves that tension by showing, through an exposition of the relevant moral philosophy, legal theory, and case law, that an individualist approach best accounts for the concerns of collectivists and individualists alike. This account details the normative contours of relational criminal liability and addresses legitimate concerns with that liability. Finally, it develops a normative test for relational criminal liability and applies that test to a taxonomy of relational criminal liability, which includes the many theories of liability that fall under the relational label. It concludes that most, but not all, aspects of relational criminal liability are normatively justified and that many of its criticisms are better understood as aimed not at the substantive liability itself but at external failures that sound in procedure, interpretation, and sentencing.
Steven R. Morrison,
Relational Criminal Liability,
44 Fla. St. U. L. Rev.