Financial Suicide: A legal perspective on moral responsibility

A complement to: Financial Suicide: Lessons From Economic Demography

By Alexander Green

In a recent article for this blog, Joshua Mellors highlighted the usefulness of economic demography in letting us know that:

“…if large portions of your population suddenly emigrate, or suicide rates markedly increase, it might be time for a Plan B.”

Now, as a lawyer, I am of a more vindictive and backwards looking sort. When the proverbial substance hits the fan I want to know who to blame and why. Mellors points to a study in the British Medical Journal, which indicates that around one thousand people in England have committed suicide as a result of the recession, due to a combination of rising unemployment and the devaluation of savings. Intuitively, it is clear who is to blame: those that made the choices giving rise to the conditions that prompted these unfortunate individuals to end their lives. This is commonly assumed to be politicians (by imposing austerity measures) and bankers (by prioritising short term profit over sustainability).

Explaining how and in what way responsibility attaches is more exacting than simply levelling our condemnation. At the outset, let me say that I view the likelihood of a successful lawsuit being brought against either politicians or bankers as next to nil. Nonetheless, law provides analytical tools useful for considering moral responsibility, which is what I would like to address here.

In order to make meaningful inroads on this subject we will need to make two assumptions. We must take it as read that the financial crisis was a major contributing factor to the suicides in question. Lawyers have a term for this: ‘material contribution to risk’. What constitutes ‘material’ in these circumstances is always much debated but let us take temporary refuge in the vagueness of language and say that we assume a ‘substantial’ contribution, so that it would be eccentric to claim that the financial crisis was merely the icing on the cake. I think we can go ahead and make this assumption without too much concern however: the notion of suicide resulting from financial cataclysm is hardly novel. The second assumption we must make is that the choice to commit suicide was in every relevant respect a free choice. These individuals involved looked at their lives and decided that the pros were vastly outweighed by the cons.

Now, there are two common ways of abjuring responsibility for something one caused in the rather loose sense of a ‘material contribution’. The first is to attack the moral relevance of the contribution itself. “Well,” goes the argument, “I can’t be responsible for this disaster, because if I hadn’t acted in such a way, someone else surely would have done.” We can understand our interlocutor to be saying something along the following lines. The salient factor in establishing moral responsibility is not whether one merely adds to the likelihood of a particular outcome but rather that one would have been an essential and irreplaceable link in the causal chain that lead to that state of affairs. Lawyers call this the ‘but for’ test (that is, but for X there would have been no Y).

There is something intuitively appealing about such a position. Unfortunately, intuitive appeal is all it really has. Imagine the following example. Bob is standing before a firing squad. They all raise their guns and fire at exactly the same time. All the bullets hit him in the heart at exactly the same time, with the obvious consequence. In what way could the individual members of the firing squad be said to have been so unique to the cause of Bob’s death that were it not for them, it would not have occurred? There is no ‘but for’ here: remove any one and the result would be the same. Does that mean that none of them are morally responsible? This is often called a ‘false negative’ and is the logical result of fetishising this overly simplistic theory of responsibility.

Now imagine all but one of the firing squad has a blank round but none of them know which one. They are essentially all taking a knowing risk, say one in five, that they will be the one to actually kill the hapless Bob. Does this make those who in fact do not fire a live round less responsible for his death than those who do? In a straight forward causal sense it does, but we are concerned with their moral responsibility. The explanation for why we feel they ought to be responsible is actually quite simple. Bob has a right, good against the whole word (erga omnes if you want to be all pompous and legal) that he is not blasted to Kingdom Come. By taking the conscious risk that they will be the one to kill Bob, each member of the firing squad violates that basic right.

This tells us something important about our interlocutor’s first defence: it is morally irrelevant that someone else might have taken the same conscious risk as you. The fact is that you took it. The moral harm, that is the breach of the right, has already been done at that stage. So much for the first defence.

The second common defence to such a charge of moral responsibility goes something like this. “Well,” says our now slightly sheepish interlocutor, “Even if I took the risk that they might commit suicide, it was they who actually decided to do it. I surely cannot be held responsible for someone else’s choice!”

This is one example of a general claim about moral responsibility that distinguishes between ‘proximate’ and ‘ultimate’ causes (another set of terms beloved by lawyers). The ultimate cause of something is notoriously difficult to pin down. What is the ultimate cause of you reading this article? Is it the link you saw on another webpage or is it that you decided to surf the internet? Or is it, more remote still, the fact that you woke up this morning instead of passing away in your sleep? We can trace the causal links of events back through time to the point of absurdity, without being able to tell where the important link in the chain actually is.

Enter the proximate cause. We usually say that the proximate cause of something is the ‘causally significant’ event that directly preceded the state of affairs in question. So we might say that the proximate cause of the Titanic sinking was it hitting the iceberg. The difficulty of proximate cause as a means of determining moral responsibility is that deeming a particular action or inaction to be proximate is to thereby assume the moral significance of that cause. Didn’t the Titanic really sink because no one was keeping an effective lookout? Viewed in this light, the second defence of our interlocutor dissolves into the rather absurd tautology of, “I am not responsible for that suicide because I am not responsible.”

Moral Responsibility? Moi?

What the problem really boils down to is this: we have to choose what we deem morally significant in a particular chain of causes in terms of a judgment about the moral responsibility of the parties involved. In the end it comes back to our rights. Everyone has a right not to have their continued existence put in jeopardy by the careless and unthinking acts of others who should, quite frankly, have known better. (To doubt that politicians and bankers knew better would be to doubt that they understood economics or could read newspapers.) I am fortunate to have a friend who is something of a virtuoso on the piano. If he were to have a fit of rage and fling his Steinway from a third story window he would have clearly violated the rights of those walking below the window through his careless disregard. The reason we do not let people recover for the violation of rights alone is that the practice of law is about money and harm helps quantify that money. It also helps keep down the amount of lawsuits that get pumped through the system every year. But neither of these things speaks to whether or not there has been moral injury or moral responsibility.

Going back to our bankers and politicians we can see that neither defence is available to them. Assuming that they materially contributed to the risk of suicide and can be demonstrated to have shown reckless disregard for the wellbeing of others, they acted in such a way that violated those people’s rights. The fact that a conscious choice to commit suicide was involved in no way diminishes this. To demand that there only be one ‘bad guy’ here and this has to be the person actually committing suicide is hopelessly naïve and irresponsible. What stops both the risk taker and the victim of that risk being responsible for the result? Such a conclusion would not absolve either. Certainly it might make the relevant person less worthy of condemnation than a murderer but who in their right mind would think otherwise?

Having used legal ideas to demonstrate that holding bankers and politicians morally responsible is a basically defensible position, it might seem odd that I also believe that a successful lawsuit is highly unlikely. After all, foreseeable harm has clearly been suffered as a result of this risk taking. Unfortunately that is not all there is to it. Judges are generally quite hesitant about acknowledging that moral rights have legal effect if such recognition would be innovative. Furthermore, English law has a rather fuzzy concept called ‘remoteness’ that is often conflated (or simply confused) with foreseeability. Simply put, the idea is that if the harm suffered is too far down the causal chain from the wrongdoer then it will not be recoverable. I do not believe that either of these hurdles is particularly defensible but unfortunately they are just terms within which judges tend to think.

Before drawing this article to a close it is worth briefly noting another defence that might be raised, specifically on the part of employees. I say ‘briefly’ because I personally consider it beneath contempt. “But,” sweats our by now deflated interlocutor, “I was only doing as I was told.” Now I am the last one to claim that in this unstable economic market (oh the irony) job security is not important. I am reminded however of Article 33 of the Rome Statute of the International Criminal Court (a body, incidentally, which exists to ensure accountability for large scale wrong doing), which holds that whether or not a crime was committed under orders is irrelevant to the responsibility of the criminal. I am hardly advocating a prosecution before the ICC as a result of this stupid and pointless loss of life, but if that principle alone does not cause some to think before they blindly follow instructions then the problem runs far deeper than our economic system alone.

  1. Like a lot of people in this country I think that the bankers and politicians should be held fully and legally accountable for their actions, like yourself I’m also of the view that this will probably never happen, aside from the occasional prosecution to assuage public anger, like the two MP’s that were jailed for fiddling expenses when we all know that most of the other six hundred were on the take as well.

    It is worth noting that there is a great deal of anger in the public mindset at the moment thanks to the morally reprehensible actions of our politicians and bankers, independent therapists all claim that anger leads to depression and that depression leads to suicide so there is casaulity but there’s no responsbility. The reason why there is no responsibility is the simple fact that most of our leaders and bankers are psychopaths and as such unable to take responsibilities for their actions and at the same time unable to care that their actions affect millions of people so badly that some of them are driven to suicide. We need to recognise this and demand that all people entering management of any type and politics at any level undergo psychological screening to weed out the psychopaths. If we do this I am convinced that our places of work will become much more pleasent and productive places to work and that eventually we will see the return of proper statesmen with a social conscience to our democracy instead of political nerds and people who are willing to say and do anything to get into power whilst being uncaring of their trail of broken promises, the dissapointment of which encourages voter apathy.

    • Alex Green said:

      Thank you for your comment. Claiming that most bankers or politicians are psychopaths might be a little strong. One hardly needs to have a mental condition to be able to block out awareness of another’s suffering. This is a common enough consequence of prolonged exposure to violence or social distance from the person in question. People sometimes view those they don’t care about as ‘Other’ and simply do not engage with their emotions in the same way that they might as, for example, a family member.

      I am also not sure about the argument that a psychopath is not morally responsible for his or her actions simply because they do not possess the capacity to empathise. That seems to assume that I need to understand another person’s response to something in order to be responsible for the result. Let’s say my partner hates stinky cheese and I simply cannot understand why. Am I thereby not responsible for their discomfort if I eat that cheese at dinner on a regular basis?

      Just because there is a more general lack of empathy present in psychopathy does not mean that they are incapable of noticing distress when it is present and attempting to avoid causing it (although admittedly I believe they find identifying emotions far more difficult than others – I am no psychologist – and so we might be more tolerant of any good-faith mistakes they make). To say that there is no moral responsibility must be wrong I think. If there is no moral responsibility what about their behaviour can be morally reprehensible?

  2. Rudge said:

    I believe much of the literature generally assumes a psychopath is, as a general rule ignoring the specifics of a case for now, at least partially criminally responsible for their action. I would imagine the notion of remoteness would be accepted by some of the public though I have little insight into the ongoing thoughts of a judge. On another note, I did appreciate the explanations in this article for those of us who’s knowledge of the law comes from Demolition Man.

    • Alex Green said:

      Thank you Rudge, I’m glad the article helped in some way. On the issue of remoteness: I think it makes sense precisely because it is so often confused with forseeability. Of course I should not be responsible if the result of my action is so remote that I could not have been expected to foresee it.

      My main contention is whether remoteness adds anything to foreseeability that isn’t covered by that concept alone. Imagine a wrongdoer who plans so carefully that he is able to predict the outcome of his actions many years down the line, arranging things so that harm is done at very much more than ‘arm’s length’. Surely the causal remoteness of the harm does’t absolve him? Should the situation change in the case of careless behaviour? If so, how could we explain it without recourse to foreseeability?

  3. Rudge said:

    If one is remote of the consequence, one could perhaps foresee it happening but could one argue under remoteness that it is not guaranteed (maybe I am merely talking about foreseeability) and therefore as a man who loads a shooters gun knows it may be used to kill Bob, he can’t guarantee that and he didn’t do it with that intention.

    • Alex Green said:

      I think I see where you are going with this Rudge. I believe you are arguing that someone might deny responsibility on the basis that so much needs to happen between their action and the result that they play a very limited role. My concern with that idea is that by being aware of the possible result and choosing to act anyway they have breached the right of that individual by taking the risk.

      I admit that if the risk in question is so small that it is almost impossible that it would result in any harm, like for example shooting a gun on a practice range with proper safety procedures, then any harm that does result will most likely not give rise to a meaningful degree of responsibility. After all, life without some risk taking would be boring! That is why in the article I said that we must presume that the contribution to the risk was ‘material’ or ‘substantial’ – a major factor in causing the suicides.

      The likelihood of something occurring is not necessarily a remoteness issue however: if I throw a 300 sided dice then any result will have been at the odds of 1 in 300. That is not likely but neither is it causally remote to my throwing. To say that the number of things that need to happen between X and Y is in some additional way relevant to responsibility for Y seems arbitrary once this distinction is made clear. If remoteness was about the nature of the risk then it might add something. As it is it only serves to confuse, and be confused with, foreseeability.

      We should be concerned with the reasonability of the risk as a demonstration of concern and respect for others. That can encompass the extent of the risk and the nature of the possible consequence, but surely not the causal mechanics of how the risk materialises.

      As to arguing that there was no guarantee, a single man shooting at Bob with an RPG could take aim, fire and intend to kill, only to have an alien space craft fly in the way and preserve Bob’s life. That is logically possible: there is no guarantee that it wouldn’t happen. It is all a matter of the chance being taken and what is at stake. If you were the loader of a gun in the situation you describe, would you be happy with the absence of a guarantee?

  4. Kleptocratistan said:

    It’s great you’re picking up from Joshua’s article as I believe this a really important issue and deserves a lot of attention. You start by identifying politicians and bankers as the ones to blame for the conditions these unfortunate individuals find themselves in. Presumably in many cases these conditions involve perhaps being made unemployed, struggling with over indebtedness or relationship issues brought on by the financial stress of the downturn.

    So far so standard, but here comes the tricky part and forgive me if you think I’m being harsh but I will exaggerate to make the point. It is an economic downturn and your financial circumstances have deteriorated – perhaps collapsed. So what? Relative to the rest of the world or most of history we live in a pretty generous welfare state. Ok so you’re disposable income isn’t going to allow you to enjoy the same level of consumer delights as before. So what? There’s so much more to life than what you can afford to buy.

    When looking at how to distribute blame for the tragedy of rising suicides, simply blaming politicians and bankers for the immediate economic conditions doesn’t go far enough for me. Who is responsible for helping equate in our suicidal friend’s minds that economic failure = failure as a human being?

    What role has the media and celebrity culture played? So called sporting heroes reach the pinnacle of their game only to have the press speculate on what this could mean for their corporate sponsorship derived net worth. The nation is glued to adversarial TV programs where each week another round of hopeful underachievers are mercilessly booted off the show, leaving more room for eventual winners to display their god-given natural talent in our 21st century phone vote-rigged bear pits.

    The implicit message is “if you’re not a winner – you’re nothing” and it is relentlessly drilled starting with pushy parents, schools, the workplace, advertising, the media and vast swathes of cultural repeaters. We should all do our best to remind ourselves and others that whilst we must fight for our fair share of material fruits, this isn’t the main purpose of our lives. Have fun..

    • Alex Green said:

      Thank you for your comment Kleptocratistan. You raise a very interesting point and one that I am afraid I might not be able to do justice in reply. Firstly and by way of recapitulation, I would like to say that nothing in my analysis excludes the possibility of further responsible agents. After all, I freely acknowledge that committing suicide involves moral responsibility for the act: think of who you might be leaving behind and in what state.

      Having said that, when we get into the area of expressive harm and societal conditioning it becomes much harder to select responsible parties from the many possible candidates. Certainly we may cite ‘the media’ as responsible, but you can’t attach agency to a culture; culture and media exist in a fluid equilibrium. There is far less conscious choice making there I think, at least outside the realm of the mass media mogul.

      On the other hand, I completely agree that there is something very wrong with how we view success and ‘the good life’ (if you will tolerate an unashamed pop-philosopher using this term) these days. Whilst I believe in the importance of risk taking, courage and independence to a great human life, there is nothing about those traits that links success to the material. The Neo-Marxists have some very interesting stuff on consumer fetishism in relation to this. I am as others see me, others see me as my possessions, therefore I am my possessions, therefore my future is my capacity to acquire possessions, therefore my future is my earning capacity and so on.

  5. Joshua Mellors said:

    Thank you Alex for your excellent consideration of the question of moral responsibility surrounding this issue.

    I probably agree that it would be difficult/unworkable to attempt to bring a lawsuit on this specific issue. But there are actually many crimes that have been committed whose prevention would have probably prevented this situation: principally massive mortgage fraud, but also God knows what else.

    In 2004 the FBI warned of an ‘epidemic of mortgage fraud’, which would lead to a financial crisis if it wasn’t addressed, and of course it never was. There have been no real prosecutions of major institutions since the crisis began.

    I really recommend that anyone interested in this issue checks out William K. Black’s work. Black is I believe the world’s leading expert in white-collar and financial crime. He was central to the investigations of the US Savings and Loans crisis in the 1980s, where his team managed to prosecute and send away around 1000 bankers for fraud and other offences. They accomplished this is in face of overwhelming political pressure from the Reagan Administration, lobbying from members of congress like the ‘Keating Five’ – a group of five senators including John McCain who were specifically trying to prevent prosecution of Charles Keating, head of one of the worst fraudulent institutions, Lincoln’s Savings and Loan Association – as well as, famously, death threats (“get black – kill him dead”).

    Black has been very vocal during the current crisis – which is of course much bigger and where he asserts there was far more crime – and is probably the best placed person to offer explanation and experience of these issues. Here are some great interviews:

    I think we would get a long way but simply enforcing the law and investigating these major institutions. Governments have not only failed to do so, but have blocked the attempts of those who have. A significant number of attorneys general in the US attempted to prosecute the big banks, for example, but were blocked by the Justice Department. The SEC also seems to be doing its best to avoid prosecuting anyone. While around 1000 people were prosecuted in Savings and Loans, there have been no major prosecutions this time round except for that of Bernard Madoff, who turned himself in!

    This is why it is politicians who I hold ultimately responsible. If you deregulate, take all the cops off the beat, make it well-known in the industry that crime isn’t really punished – and is in fact rewarded through bailouts – then of course it will be committed! In economics we call it ‘moral hazard’ 🙂 Essentially crime is both decriminalised and incentivised. In fact, Black shows – following the paper ‘Looting: The Economic Underworld of Bankruptcy for Profit’ by Nobel prize winner George Akerlof and Paul Romer – that making really bad fraudulent loans, and many of them, is one ingredient of a recipe which guarantees that a CEO will get rich while the institution will eventually suffer massive losses

    So a good place to start would be just to prosecute the crime that has been committed. Black says that the paper trail is generally there, all we need is political will. Remember, this is the main problem – why would you seek to prosecute your major campaign contributors? And this is not a partisan issue; in the US case the Democrats and Republicans are as bad as each other.

    • Alex Green said:

      Thank’s Josh, I quite agree with you about the related crimes. It seems to me that the important thing is to get the general public to engage with the responsibility of these people in a meaningful way. Exposing them as targets to a law suit or prosecution would be an excellent way to at least open those floodgates.

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