Abstract
Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are not made, some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something.
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Notes
Husak (2008, n. 10).
Husak cites her in n. 8 of his article in this issue (Husak 2008).
She starts one of her influential articles on the limited relevance of intentions to permissibility, one discussing physician-assisted suicide—an action defined by the intention to empower another to kill himself—by saying: “Many people oppose the legalizing of physician assisted suicide on the ground that (as they think) there is no way of constraining the practice so as to provide adequate protections for the poor and the weak. They may be right, and if they are, then all bets are off.” Thomson (1999) 497–518, 497. This is clearly an acknowledgment that intentions can make an action impermissible for consequentialist reasons; in this case, rule-consequentialist reasons.
Id, p. 515. Husak may have overlooked this because he thinks that supporters of the IIP think intentions can be relevant only to “second-order morality”—i.e. judgments about agents. He cites Thomson, in the same article I just cited, speculating that the appeal of the Doctrine of Double Effect persists because people confuse “the question whether it is morally permissible for a person to do a thing… [with] the question whether the person who does it is thereby shown to be a bad person.” (in Husak 2008—citing Thomson, “Physician-Assisted Suicide,” p. 517) But Thomson does not mean to deny what she said just two pages earlier, that intentions are relevant to the culpability of an act. Thomson’s target is only the thought that acting on a bad intention is intrinsically capable of turning an otherwise permissible action impermissible.
Husak gets the point wrong when he describes her position as one according to which “no mental states of agents—not even beliefs—are relevant to the moral evaluation of their actions” (Husak 2008). Thomson does not take this position with regard to evaluations in general, but only with regard to permissibility.
Husak cites Bennett for the proposition that morality, as a guide to conduct, does not tell one what to intend (see Husak 2008). As far as I can tell, Bennett may actually have overlooked the ways in which it does tell one what to intend, at least for extrinsic reasons (See Bennett 1981, p. 97). Finally, Husak also mentions, in note 45, McCarthy (2002). McCarthy comes close to embracing the IIP, but he qualifies his position more as less as Scanlon does, claiming that intention is not relevant to permissibility in “an interesting way.”
Following W.D. Ross, I use “act” here, rather than “action,” to describe what an agent performs abstracting from the intention with which it is performed. See The Right and the Good (Hackett 1988), p. 7.
Anscombe (1968, p. 200).
Husak mentions two: Michael Moore and Anthony Duff (see Husak 2008).
I develop these views in “Intentions that Matter for Permissibility,” which Husak cites in note 35.
I developed this idea in a paper presented at the criminal law section of the IVR in Krakow, Poland (2007).
Id, at 540.
Hart (1968), pp. 126–127.
Id, at 127.
Id.
Id.
What if A believed that there was no danger to C because he thought the cliff was over deep water, and that C could swim, when in fact there was no water under the cliff, and C was incredibly lucky to be saved by a bush? In that case A would not have believed that he was endangering C, and he should be guilty of a lesser crime of negligence for not ensuring that it was safe to push C before doing so. I am grateful to Husak for helping me distinguish this sort of case.
Failure to see this is one of two mistakes in a paper I present at the IVR conference in Krakow, to which Husak was initially responding. The other mistake was deeper and not worth describing here.
Some attempts to murder are more culpable because they reflect a malicious end (a good end mitigates the culpability of a vicious means), or because the person manifests an intention to kill wrongly across a range of possible circumstances—a matter I describe as the scope of the intention (See Walen 2006).
I am grateful to Anthony Duff for pushing me to recognize this distinction after my presentation in Krakow.
References
Anscombe, E. (1968) Modern moral philosophy (Reprinted in Ethics, pp. 186–210, by J. Thomson & G. Dworkin, Eds., New York: Harper and Row).
Bennett, J. (1981). Morality and consequences, the tanner lectures on human values III (pp. 46–116). Salt Lake City: University of Utah Press.
Hart, H. L. A. (1968). Intention and punishment, reprinted in Punishment and responsibility. New York: Oxford University Press.
Husak, D. (2008). The costs to criminal theory of supposing that intentions are irrelevant to permissibility. Criminal Law and Philosophy, this issue, doi:10.1007/s11572-008-9065-2.
LaFave, W. (2000). Criminal law, 3rd edn. St. Paul, Minn: West Group.
McCarthy, D. (2002). Intending harm, foreseeing harm, and failures of the will. Nous, 36, 622–642.
Ross, W. D. (1988). The right and the good. Indianapolis, IN: Hackett (originally published in 1930).
Thomson, J. J. (1999). Physician-assisted suicide: Two moral arguments. Ethics, 109, 497–518.
Walen, A. (2006). The doctrine of illicit intentions. Philosophy and Public Affairs, 34, 39–67.
Walen, A. Intentions that matter for permissibility (unpublished manuscript).
Acknowledgements
I would like to thank Doug Husak for inviting me to give this response and for the discussion of the issues raised in it; the participants at the Rutgers Conference on the Evolution of Criminal Law Theory; and my wife, rachel somerville, for her helpful comments on the final draft.
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Walen, A. Comments on Doug Husak: The Low Cost of Recognizing (and of Ignoring) the Limited Relevance of Intentions to Permissibility. Criminal Law, Philosophy 3, 71–78 (2009). https://doi.org/10.1007/s11572-008-9064-3
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DOI: https://doi.org/10.1007/s11572-008-9064-3