Moral Agents and Legal Persons: The Ethics and the Law of State Responsibility

• Main Author: Fleming, SR
• Format: Article in Journal/Newspaper
• Language: English
• Published: Cambridge University Press 2017
• Subjects: 4408 Political Science; 44 Human Society; Newfoundland; Canada
• Online Access: https://www.repository.cam.ac.uk/handle/1810/264393; https://doi.org/10.17863/CAM.9882

Why, if at all, does it make sense to assign some responsibilities to states rather than to individuals? There are two contemporary answers. According to the agential theory, states can be held responsible because they are moral agents, much like human beings. According to the functional theory, states can be held responsible because they are legal persons that act vicariously through individuals, much like principals who act through agents. The two theories of state responsibility belong to parallel traditions of scholarship that have never been clearly distinguished. While the agential theory is dominant in IR, political theory, and philosophy, the functional theory prevails in International Law. The purpose of this article is to bridge the gulf between ethical and legal approaches to state responsibility. I argue that IR scholars and political theorists have much to gain from the functional theory. First, it provides a plausible alternative to the agential theory that avoids common objections to corporate moral agency. Second, the functional theory helps us to understand features of International Law that have puzzled IR scholars and political theorists, such as the fact that states are not held criminally responsible. I suggest that states can be ‘moral principals’ instead of moral agents. This research was funded by a Doctoral Fellowship (752-2015-0050) from the Social Sciences and Humanities Research Council of Canada; a Rothermere Fellowship from the Rothermere Foundation; and a J. W. Pickersgill Fellowship from the Government of Newfoundland and Labrador.