Western Creed, Western Identity: Essays in Legal and Social Philosophy

8. Collective Responsibility

      COLLECTIVE RESPONSIBILITY  There are two things that I wish to do in this brief presentation. First, I will sketch in a general way the philosophical temperament that has in recent decades influenced the framing of law; second, I will single out for special treatment the idea of “collective guilt,” which I take to be one of many concepts that first gained currency in the philosophical world before its use in the law. Particular attention will be paid to the use of the notion of collective guilt in corporate law. It is commonly acknowledged that if a society’s laws are based on a particular cultural outlook and that outlook collapses, the laws themselves will crumble.1 Ronald Dworkin, in his work Law’s Empire , argues the converse thesis that in a morally pluralistic society only the law can provide the unity required for social order.2 For Dworkin, law receives its moral force precisely because it provides this unifying function. He recognizes that Western society is ideologically split, with the consequence that its laws no longer flow out of a common view. Law tends to be created as a tissue of compromises between self-interested factions and consequently provides the only set of agreed-upon principles that may serve for concerted action. The open question, of course, is whether law pragmatically created . Lord Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, ). . Ronald Dworkin, Law’s Empire (London: Fontana, ).        will either serve the common good or foster the noblest of human tendencies. Alasdair MacIntyre, in Whose Justice, Which Rationality?, makes the point that theories of justice and practical rationality are but aspects of an allegiance given to a much larger intellectual tradition.3 He speaks of the illusion of the autonomy of philosophical thought. “Philosophical theories,” he argues, “give organized expression to concepts and theories already embodied in forms of practice and types of community. As such they make available for rational criticism and for further rational development those socially embodied theories and concepts of which they provided an understanding.”4 One can be, suggests MacIntyre, an Aristotelian or a Humean, but one cannot be both. Furthermore, one cannot be either without appropriate social organization or without a congenial polis. The conditions for the administration of Aristotelian justice are different from the conditions for Humean justice. Although such issues are rarely accorded public debate, the forums in which they are occasionally aired are those provided by the U.S. Supreme Court and the Senate Judiciary Committee. It is principally in briefs submitted to the Court that ideas that touch upon the fundamental aspirations of life and that affect the culture of the nation and its modes of governance are contested. No one denies that judge-made law has become a powerful force in shaping the nation’s culture, perhaps more so than the enactments of legislative assemblies , either at the national or the state level. So-called interest groups with legislative agendas take it for granted that they are more likely to have their aims implemented through the process of judicial review than through the enactments of legislative assemblies. Litigation is instigated with deliberation;“forum shopping”is standard practice as activist organizations seek judges of like mind. The bench itself tends to reflect the intellectual trends of the very same academy that inspires the interest groups to take action. . Alasdair MacIntyre, Whose Justice, Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press, ). . Ibid., . Collective Responsibility  In recent decades most of the moralism has come from the left and has had as its objective the alteration of accepted modes of procedure . Whereas any legislation is apt to be the result of mutual concession , judge-made law often reflects the purely utopian ideas of the academy. Social theory fabricated by intellectuals who are untouched by life in the work-a-day world can be compelling in its clarity and with ease can be translated into law by an activist judiciary. To understand the drift of contemporary courts, one has to probe beneath current legal theory and in a MacIntyre fashion place such theory in a larger cultural, should I say, philosophical context. MacIntyre is not alone in his judgment that law, whether created by legislative or judicial action, is but one strand in a single fabric called an“intellectual tradition.”Peter W. Huber, in discussing changing conceptions of “liability,”recognizes as much when he identifies a...