ABSTRACT
Having provided some kind of definition and typology of organisation in social terms, and suggested some criteria for the moral and legal agency of organisational actors, it is next necessary to examine the ways in which either individuals or organisations might be held legally accountable and criminally responsible as a matter of legal process. At this stage the argument may start to appear quite tricky, as we move into normative territory. The important point to grasp is that, whether we are talking about individuals or organisations, there may be different routes by which either may be taken to the point of some kind of legal accountability. On the one hand, an individual may be seen acting simply as an individual and judged accordingly. This would lead to what might be termed ‘classic’ individual responsibility, based simply on an evaluation of that individual acting alone. The same may happen to an organisation, once that organisation’s moral and legal agency has been established. This is to deal with the individual qua individual, or the organisation qua organisation. But matters may not be so simple. An individual may also act as part of a group which does not itself qualify as a single organisational actor. An organisation may do the same, although perhaps less frequently, but we could refer for instance to the examples of companies acting as part of a cartel, or States acting within an alliance, or Mafia families combining in a loose federation. This raises the question of some kind of collective responsibility, whereby the individual members of the group are ultimately held responsible as individuals, but their responsibility is based upon membership of the group. Two main forms of collective responsibility may be identified. The first arises simply from membership and leads to an imputed responsibility for each member in respect of the acts of other members or of the group as 79a whole. A historical example is the Norman frank-pledge system. This is sometimes referred to as a ‘collective’ or ‘vicarious’ responsibility and in modern criminal justice is frequently open to ethical objection. The second form arises from involvement in the group and a contribution to the group’s enterprise and is rather a ‘distributed’ responsibility for that contribution to the collective act. Feinberg describes this as ‘the responsibility of individuals in joint undertakings’. This kind of responsibility has become significant in contemporary legal process, for instance in the form of the ‘joint criminal enterprise’ and in the context of cartel regulation, and is examined in more detail later. All this leaves us with three main contemporary routes to legal responsibility: individual as individual, organisation as organisation, and individual (or perhaps organisation) as a participant in some collective or group activity.
