Oldal 74 [74]
JAVID GADIROV
REINTERPRETATION IS SOCIAL BUT NOT JOINT
Reinterpretation of lawfulness of action by perpetrators is not individual or private.
It is social, and not merely in the sense that for example language is social and not
private." An idiosyncratic view of ‘higher law’ held by a psychopathic individual
would not be sufficient to characterize a murder done in its pursuance as a crime
against humanity. It is rather a shared set of criteria for validity of rules and orders
that is maintained by committed participants of the actions that is referred to as
a part of intention here.
Requirements for sharing intention in this sense are less demanding than in,
for example, Bratman’s account of meshed or interlocked plans. Bratman proposes
a definition of shared intention as “a state of affairs that consists primarily in
attitudes (none of which are themselves the shared intention) of the participants
and interrelations between those attitudes”, or else a “web of attitudes of individual
participants”.*”’ Thus in a joint action /:
“We intend to J if and only if
1. (a) I intend that we J and (b) you intend that we J
2. intend that we J in accordance with and because of 1a, 1b, and meshing subplans
of la and 1b; you intend that we J in accordance with and because of 1a, 1b, and
meshing subplans of la and 1b.
3. 1 and 2 are common knowledge between us.”*®
Firstly, such an account would leave out non-joint individual actions done
pursuant to a shared commitment to enforce a parochial understanding of law.
Furthermore, extending the number of perpetrators and scale of atrocity would
make meshing of subplans less significant. Other things being equal, the ratio, or
rather marginal share of meshed section of a common plan would decrease with
each perpetrator and individual episode of a crime.
Moreover, joint plan account is also over-inclusive with regards to crimes
against humanity, as it applies to ‘ordinary’ organized or joint crime in the
same way as to crimes in question. The concern about limited reach of strict
requirements of shared intent is not just about excusing too many participants.
36 As Wittgenstein puts it is not possible to ‘privately’ follow rules or obey orders, because
obeying rules and following orders is a practice (Wittgenstein, Investigations, 199, 202).
Hence, even a complete stranger would be able to learn a strange language since “The
common behaviour of mankind is the system of reference by means of which we interpret
an unknown language.” (Wittgenstein, Investigations, 206).
37 Bratman, Shared Intention, 107-108.
38 Bratman, Shared Intention, 106.
+ 72e