ABSTRACT
According to Avia Pasternak, citizens can be held responsible for their state’s wrongdoing if and only if they contribute to maintaining it by acting as intentional participants in its activities. I examine two specific aspects of this general claim. First, I ask whether intentional participation requires that the citizen should accept the state, in the sense of not viewing her membership as unwillingly forced upon her, and conclude that it does not. Second I explore how the claim applies in the case where there has been a discontinuity in the form of the state. I argue that it is not a condition of collective liability today that the predecessor state’s subjects should have been intentional participants at the time at which the wrongdoing occurred.
Introduction
‘Intentional participation’ is the central concept in Avia Pasternak’s very impressive new book (Pasternak, Citation2021; page references are to this book). The question she asks is: when is it justifiable to hold citizens collectively responsible for repairing the wrongdoing that their state has perpetrated? And the answer she gives is that it is justifiable if and only if they are intentional participants in the processes that enable the state to function as an agent. Much therefore hangs on the meaning and significance of intentional participation in the state. In this commentary, I will focus on two specific aspects of the question. One is whether citizens’ subjective attitudes towards the state are relevant to deciding whether they count as intentional participants (hereafter IPs). The other is about intentional participation over time: does it matter whether the predecessors of today’s citizens were IPs at the time at which the wrongdoing occurred? I shall examine these issues with respect to states that today are liberal democracies, although the book does also contain insightful discussion of intentional participation in non-democratic regimes.
Intentional participation: the acceptance condition
At first glance, it may seem doubtful that we can describe ordinary citizens as intentional participants in the workings of their state. We are more likely to think of them as having a somewhat distant relationship to the apparatus of government, which they regard as a bureaucratic machine that may sometimes provide them with helpful services, but on other occasions is simply an obstructive presence in their lives, to be avoided as far as possible. For the most part, they appear to engage with it actively only rarely, such as when voting in elections, or taking part in protest movements.
What Pasternak points out, however, is that the state couldn’t act as a corporate moral agent unless its citizens routinely and willingly carried out a host of everyday activities, such as keeping the law, paying taxes, and taking up public sector employment. So the intention that matters for ‘intentional participation’ is simply the intention to do what is required if the state is to continue functioning as an agent. It is emphatically not the intention to support the particular policies that the state is pursuing at any moment, since citizens are bound to disagree with at least some of those. Pasternak’s claim, then, is that even those who are opposed to what the state is currently doing can still count as IPs (there is a qualifier to cover cases in which the state’s policies involve ‘deep secrets’ withheld from the public, discussed in Richard Vernon’s contribution to this symposium).
This idea of intentional participation seems quite promising as a way of understanding how ordinary citizens (and not just office-holders) can be held responsible for what their state does. It needs, however, to be carefully scrutinized. In order to count as intentional, the participation has to be voluntary – it can’t be compelled at gunpoint, or undertaken out of necessity. Pasternak therefore concedes that in the case of many non-democracies, it is a complex matter to decide how many citizens will qualify as IPs. However even in the case of democracies, it remains true that few citizens have actively chosen to belong to their state; if asked, they might say that they had little option but to belong and participate. So Pasternak adds the condition that citizens must accept their participation in order for it to count as intentional. The corollary is that someone who is significantly alienated from their state should be excluded from collective responsibility. As she puts it, ‘citizens who genuinely reject their citizenship status – who would like to give it up had they the real opportunity to do so – are participants in their state in a thin sense’ – but do not count as IPs who can be held liable for what their state does (p. 76).
I want to challenge this proposal. I do not believe that so much should hang on someone’s subjective attitude, on how they view their participation in the life of the state. In our general thinking about personal responsibility, we hold that a person becomes responsible by virtue of what they actually do, rather than of how they feel about what they’re doing. Someone’s attitude to what they are doing may matter when it comes to assessing their character, or attributing blame – we think worse of the person who simply doesn’t care about the harm he is inflicting on other people – but our assessments of liability track the harm itself. Why should things be different in the case of political participation? If someone knowingly engages in the everyday activities than in Pasternak’s view would otherwise qualify her as an IP, and is thereby helping the state to function, why should it make a difference if subjectively she fails the acceptance test? Recall here that being an IP does not depend on approving of the policies that the state is pursuing, so in one respect you can be alienated from the state without losing IP status, as in the case of an anti-war protestor who marches under a ‘Not in My Name’ banner. But if you are alienated because the state you are currently living under (and participating in) is not the state that you want to be living under, you fail the IP test and are relieved of responsibility. This contrast seems implausible.
For a concrete illustration of the problem, consider Pasternak’s discussion of secessionist minorities – such as Scots who claim only to have Scottish (not British) identity, and who would vote Yes in an independence referendum if one were offered. Pasternak claims that such people fail her acceptance condition. Yet even though they may favour an independent Scotland, in a day to day sense they support the British state in just the same way as everyone else – they keep the law, pay taxes, vote in Westminster as well as Holyrood elections, etc. They show by their behaviour that in one important sense they regard the British state as legitimate, even though ideally they would like the Scots to have a state of their own. Because they play this supporting role in practice, it seems clear that they should count as IPs. Suppose the question arises of paying reparations for some atrocity or injustice perpetrated during the British Empire, in which, as is well known, the Scots played a leading role. It seems very implausible that Scots today should be able to avoid collective responsibility for events in which their ancestors were involved simply by disavowing a British identity and declaring themselves in favour of an independent Scotland. Yet if we apply the acceptance condition for IP status, we would have to let them off the hook and exempt them from any taxes raised for the sake of repairing the injustice.
In short, although for responsibility attributions a line does need to be drawn between those who count as IPs and those who don’t, I think that making ‘acceptance’ of the state the relevant condition draws the line in the wrong place. The right place to draw the line is between those whose participation is voluntary and those whose participation is compelled, like the prisoners of war building railways for the Japanese in Burma. It is not a condition for voluntary participation that the institution you are participating in is the one that ideally you would like to be supporting.
Intentional participation: the relevance of the past
I turn now to the second issue, which concerns how the intentional participation criterion applies over time. Specifically it concerns how collective responsibility attributions should be made in cases where there has been a radical discontinuity in the constitution of the state. This will apply, for example, to a comprehensive change of regime, as when a communist state is transformed into a liberal democracy, or to a redrawing of the state’s boundaries, as may happen when an empire collapses but the metropolis survives as an independent state. Assume that the citizens of the successor state fulfil the conditions for being IPs. The question that Pasternak raises is whether, given the discontinuity, they can inherit reparative responsibilities for the harmful actions of the state that has now been transformed.
One way to answer this question is by appeal to nationhood as the collective identity that survives the regime break, and to national responsibility as the mechanism that can make citizens today liable for what their predecessors have done. This was the answer that I favoured myself when explaining how reparative responsibilities could be inherited across generations (Miller, Citation2007, ch. 6). For example, to show how Germans today can still be held reparatively responsible for the Holocaust and liable to make payments to its survivors, despite the fact that the Third Reich was first split into two and then finally reconstituted as the (enlarged) Federal Republic of Germany, I would designate the German nation, not the state, as the continuing responsible agent (on this view, when the FRG makes payments, it does so on behalf of the German people, not on its own behalf).
Pasternak rejects this way of understanding inherited responsibilities, preferring to focus instead on the transmission of remedial responsibility through the state. She argues convincingly that regime change alone does not break the chain – successor regimes can inherit reparative liabilities from their predecessors. It is not so clear, however, how this approach can make sense of the German case just cited, where the break in continuity is more radical, involving not just the form of government but the identity of the state itself – its constitution, territorial boundaries, flag, anthem, etc. At one point (p. 199) she presents this as a case of regime change comparable to transitions from autocracy to democracy in South America, but this is surely misleading. This is not the place to investigate how the issue of state succession is treated in international law – which rights and obligations are passed down to successor states and which are not – but it is clearly a highly complex matter, with different cases bringing different considerations into play. So I will continue with the easier case of changes of regime that do not alter the identity of the state, and examine the normative question about inherited responsibility in that context, leaving for future discussion whether a state-based approach is able to deal successfully with cases of radical discontinuity as well.
Pasternak claims that where a previous regime committed wrongdoing, but its citizens did not qualify as IPs at the time of the wrongdoing, present-day citizens cannot be assigned reparative responsibilities even though they are IPs themselves. Her reasoning is that at the earlier time T, the citizens of state S were not liable for ‘non-proportional’ distribution of costs – the phrase she uses to describe cases in which the costs of reparation are shared by all the citizens regardless of the part they played individually in committing the wrongful act – so these should have been borne by those who controlled S at T, or failing that by the international community. To use the example that she discusses in some detail in chapter 6, the citizens of Iraq at the time when it was governed by the Ba’ath party under Saddam Hussein did not qualify as IPs, and therefore could not be held collectively liable for costs such as those created by the invasion of Kuwait. But according to Pasternak that protection continues to apply even if present day Iraqis do qualify as IPs (whether they do in fact is a separate matter). As she puts it, ‘the burdens of compensation for the crimes of that regime should have been allocated to those agents who were better able to absorb them, at the time. They should not be imposed on the generations of ordinary Iraqis to come’ (p. 202).
I want to challenge that claim. We may of course be reluctant to impose further burdens on ordinary Iraqis who have suffered enough already, but that would be a case of humanitarian concern trumping reparative justice. It has nothing to do with the question of whether in 1991 Iraqis did or did not qualify as IPs. We can also agree that the costs of the first Gulf War should in the first place have been paid by Saddam Hussein and his henchmen, as the instigators of the conflict. But assume that these costs were not recovered at the time, and cannot be now, and assume further that the international community will not pay up: why then would they not rest with the Iraqi state, for the general reasons that Pasternak gives when explaining why remedial responsibilities that are not discharged remain with the agent that bears them over time (p. 191)? If the Iraqi state today has such undischarged debts, and its citizens now qualify as IPs who sustain it through their activities, then non-proportional distribution of costs will be justified pro tanto – even if we want to add a rider to the effect that sometimes it is wrong to enforce reparative duties, in cases where those who owe them are much worse off than their beneficiaries.
Note also here that although present-day Iraqis in the circumstances described might complain that they were being asked to repair the damage caused by previous generations, this is not a complaint that Pasternak can countenance, since it could also be voiced in the case where earlier generations of Iraqis did qualify as IPs – but immediately dismissed by Pasternak along with all those who accept the idea of inherited remedial responsibilities.
To sum up, Pasternak makes a convincing case that the relationship between citizens and their state is crucial to establishing whether they can be included ‘non-proportionally’ in collective responsibility, and taxed to pay for the state’s debts. But that applies in the here and now, rather than at the moment at which those debts were incurred. Applying the intentional participation criterion retrospectively is going to have the effect of letting many present-day communities of citizens off the hook – think about the big historical injustices such as colonialism and slavery, and ask yourself what proportion of the state’s subjects at the time of commission would have met the conditions for being an IP.
Conclusion
By introducing and elaborating the concept of intentional participation in the state, Pasternak has made a major contribution to political philosophy. It solves the problem of how citizens can be held remedially responsible for the effects of state policies even when they have taken active steps to oppose those policies. Since in practice discharging such responsibilities will usually require the state to use its tax-raising powers to pay the cost, it would be a very significant obstacle if before doing so it had to determine who supported the policies in question and who didn’t. Pasternak shows how engaging in mundane daily activities can be sufficient to include us in collective liability. My comments do not challenge that account, but attempt to fine tune it by disputing the acceptance condition in the form in which she presents it, and disputing the claim that it matters whether earlier generations of citizens were IPs or not.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Additional information
Notes on contributors
David Miller
David Miller is Professor of Political Theory and Senior Research Fellow at Nuffield College, Oxford. His research interests include nationality, territory and immigration, and he is currently beginning a new project on climate migration. His books include National Responsibility and Global Justice (Oxford University Press, 2007) Strangers in Our Midst: the Political Philosophy of Immigration (Harvard University Press, 2016) and Is Self-Determination a Dangerous Illusion? (Polity, 2020).
References
- Miller, D. (2007). National responsibility and global justice. Oxford University Press.
- Pasternak, A. (2021). Responsible citizens, irresponsible states: Should citizens pay for their state’s wrongdoings?. Oxford University Press.