Abstract
I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Efficiency is perhaps the only alternative norm that might conceivably be used to assess and evaluate the criminal law. For a cursory defense of an economic analysis of criminal law, see Posner (1985).
See Duff (2007).
See Bierschbach and Stein (2007).
See Husak (forthcoming).
See Husak (2005b, p. 65).
For example, Antony Duff contends that responsibility in morality, unlike responsibility in criminal law, is (almost always) strict. This claim, if true, would suggest a major structural difference between morality and the criminal law. For a defense of this claim and an explication of the contrast between responsibility and morality on which the claim depends, see Duff Op.Cit. Note 2. For a sympathetic but critical assessment, see Husak (forthcoming).
It is hard to see how all mental states could be irrelevant to the evaluation of actions, since actions must be voluntary to be appropriate objects of assessment, and voluntariness is often explicated in terms of the exercise of the will. Since I am interested only in the relevance of intentions to criminal liability, I leave such complications aside.
See Thomson (1992). Examples (such as Day’s End at p. 229) are designed to show that even beliefs do not matter to permissibility.
Both the name IIP as well as reasons to accept it can be found in Thomson (1991), especially p. 294.
They may differ, however, in exactly how they formulate the version of IIP that they accept. A majority of contemporary moral philosophers accept IIP in denying that intentions are intrinsically relevant to permissibility; they are not among the factors that are inherently relevant to determinations of permissibility. Everyone concurs, however, that intentions may be relevant extrinsically. Suppose, for example, that a terrorist somehow rigs a bomb to explode if and only if he forms the intention to eat chocolate ice cream. His forming of this intention clearly would be impermissible.
Perhaps debates about the relevance of intentions to permissibility should not focus on anything that should be called a doctrine. Instead, we might speak of “Double Effect Reasoning”. See Cavenaugh (2007).
Some theorists hold that intentions are relevant to permissibility after all, but only when they are of a certain type. For example, see Walen (2006).
Rogers v. Elliot, 15 N.E. 768 (1888).
Some philosophers claim “there is nothing particularly controversial about the claim that it is worse to aim at harm as an end than to bring about a harm as a foreseen side effect of promoting a good end.” See MacIntyre (2001).
Thus I do not try to resolve the “closeness” problem to decide what exactly persons intend rather than merely foresee. For a discussion, see Bennett (1995, pp. 203–213).
Scanlon (forthcoming, p. 6).
See Bratman (1987).
For example, see Nagel (1986), especially pp. 181–183.
Duff (1990, p. 113).
Moore (1997, p. 409).
For a recent attempt to provide cases in which intentions are intuitively relevant to permissibility, see Liao (forthcoming).
In claiming that the pairs of cases I discuss are among the most well-known, I do not mean to indicate that they are the best examples that might be offered to persuade respondents of the supposed relevance or irrelevance of intentions to permissibility.
Of course, far more would need to be said—and has been said by the many philosophers who have addressed these pairs of cases. In particular, no judgment about a single case could possibly prove that intention is never relevant to permissibility. In addition, we might be skeptical about the reliability of the intuitions on which these arguments rest. For an assessment informed by empirical findings, see the papers in Sinnott-Armstrong (2008)
Although he attributes this contrast to Alan Donagan, the distinction between first and second order morality is developed most thoroughly by Bennett Op.Cit. Note 16.
Thomson (1999).
The commentary on agents and action is overwhelming. For a small sampling of the complexity of the issues, see Hyman and Steward (2004).
Similar examples are provided in Raz (1990, pp. 181–182).
Notice that such examples (those in which the nature of the action performed depends on the attitude it expresses) are not unusual; they do not involve bizarre or unfamiliar scenarios that some philosophers are notorious for constructing. Nor do they involve a borderline case to which all distinctions are subject, where our judgments are tugged in different directions.
See his “Permissibility and Intent II: The Significance of Intent,” (forthcoming), p. 2.
The Model Penal Code, and state codes that adopt it, use “purpose” rather than “intention.” Any differences between these two concepts are too subtle to require treatment here.
See Horder (1996, p. 153).
The fact that some verbs imply intentionality is widely appreciated by philosophers. Presumably, such cases simply amount to an exception to IIP, which must be understood to apply only to cases in which it is possible to perform the act in question without the relevant intention.
Admittedly, case law is somewhat unclear about this issue. Cramer v. United States, 325 U.S. 1 (1945), clearly requires an intention to aid and comfort the enemy in order to convict a defendant of treason. On the other hand, the Court is hardly clear about what it means by intention, or whether it distinguishes intention from knowledge. For example, it assumes (at p. 31) that “every man intend[s] the natural consequences which ... would reasonably expect to result from his acts.”
He purports to identify six different ways that intentions matter to permissibility in Walen “Intentions that Matter for Permissibility,” (forthcoming).
Sexual offenses may be dissimilar. The law does not categorize as rape an act of sexual penetration in which the perpetrator lacks the intention on which the victim conditions her consent. For a useful discussion of the contrast between rape and nonconsensual sex, see Duncan (2007).
These same points about attempts can be made about criminal solicitation. A defendant who sells a pipe to a customer, for example, is guilty of soliciting a drug offense only if he acts with the intention to facilitate a criminal act. Knowledge that the pipe will be used in the commission of a crime is insufficient to ground penal liability.
Williams (1961, p. 625).
The opening paragraph in Antony Duff’s masterful treatment describes the centrality of intention to the law of attempts as “commonplace.” See Duff (1996, p. 5).
See Alexander et al. (2008).
See Husak (1992).
See Husak (2008).
I omit even a casual mention of some of the candidates alleged to account for our intuitions while accepting IIP because they already are incorporated into the law (perhaps imperfectly). Thus I do not discuss the distinction between action and omission, for example.
Distinctions among causal paths from agent to harm may or may not be a different way of distinguishing intention from foresight. See Hart (1968, pp. 122–125).
See McCarthy (2002).
See Scanlon (2000).
See Parfit (forthcoming).
Op.Cit. Note 13, pp. 23–30.
See the “appropriate question test” introduced by Enoch (2007).
That is, these criminal acts are wrongful in the absence of justification. I put aside the complexities that justifications pose to my account.
Defendants should not always be guilty of a criminal attempt simply because they would be guilty if the facts were as they believed them to be. A number of cases reveal the kernel of truth in theories that require an objective risk in order to impose liability for attempts. When a defendant’s act fails to engage in the world in the appropriate causal way—as when he sticks pins in a voodoo doll in an effort to poison his enemy—we should not convict him of a criminal attempt.
Op.Cit. Note 30, p. 3.
In conversation, Alec Wallen has questioned my intuition. After all, he points out, one can change one’s mind about his intention to kill, but one cannot change the mind of an accessory as easily.
Ashworth (2003, pp. 89–90).
Bennett (1981, p. 97).
For some complexities about how the distinction should be drawn, see Husak (2005a).
For an apparent exception to what I claim that “everyone concedes,” see Westen (2006).
At the very least, excuses would no longer have the practical significance they currently are afforded in criminal procedure. In existing law, the categorization of an issue that pertains to liability as a defense has important consequences for allocations of the burdens of proof. Surely we would not want to infer that states could place the burden of proof for intention on the defendant because we had categorized the absence of intention as an excuse instead of treating the presence of intention as an element in the definition of treason. For a pioneering discussion of some of these issues, see Fletcher (1978, §7.4).
See Ashworth and von Hirsch (2005).
See Lee (2005).
Elsewhere, I have argued that proportionate punishments cannot be imposed on drug offenders because we lack good reason to believe that many of the offenses they perpetrate are wrongful. See Husak (1998, p. 187). The general point remains true even if one disagrees with my judgment about drug offenses.
Some legal philosophers go further, and regard this claim as literally incoherent. See Zaibert (2006, p. 27).
For a rare exception, see Mabbott (1969, p. 39).
Thus I have argued that all plausible justifications of punishment impose constraints on criminalization. See Husak Op.Cit. Note 42, Chapter Two. Again, mala prohibita offenses are not exceptions to this generalization. See Op.Cit. Note 5.
See Tadros (2005).
Id, p. 74.
References
Alexander, L., Ferzan, K., & Morse, S. (2008). A culpability-based theory of criminal law. Cambridge University Press.
Ashworth, A. (2003). Principles of criminal law (4th Ed.). Oxford: Oxford University Press.
Ashworth, A., & von Hirsch, A. (2005). Proportionate sentencing. Oxford: Oxford University Press.
Bennett, J. (1981). “Morality and consequences,” The Tanner lectures on human values III. Salt Lake City: University of Utah Press.
Bennett, J. (1995). The act itself. Oxford: Clarendon Press.
Bierschbach, R. A., & Stein, A. (2007). Mediating rules in criminal law. Virginia Law Review, 93, 1197–1258.
Bratman, M. (1987). Intentions, plans, and practical reasoning. Cambridge: Harvard University Press.
Cavenaugh, T. (2007). Double effect reasoning. Oxford: Oxford University Press.
Duff, R. A. (1990). Intention, agency & criminal liability. Oxford: Basil Blackwell.
Duff, R. A. (1996). Criminal attempts. Oxford: Clarendon Press.
Duff, R. A. (2007). Answering for crime. Oxford: Hart Pub. Co.,
Duncan, M. J. (2007). Sex crimes and sexual miscues: The need for a clearer line between forcible rape and nonconsensual sex. Wake Forest Law Review, 42, 1087.
Enoch, D. (2007). Intending, foreseeing, and the state. Legal Theory, 13, 69–99.
Fletcher, G. (1978). Rethinking criminal law. Boston: Little, Brown and Co.
Hart, H. L. A. (1968). Punishment and responsibility. Oxford: Oxford University Press.
Horder, J. (1996). Crimes of ulterior intent. In A. P. Simester & A. T. H. Smith (Eds.), Harm and culpability. Oxford: Clarendon Press.
Husak, D. (1992). Drugs and rights. Cambridge: Cambridge University Press.
Husak, D. (1998). Desert, proportionality, and the seriousness of drug offences. In A. Andrew & W. Martin (Eds.), Fundamentals of sentencing theory. Oxford: Clarendon Press.
Husak, D. (2005a). On the supposed priority of justification to excuse. Law and Philosophy, 24, 557–594.
Husak, D. (2005b). Malum prohibitum and retributivism. In G. Stuart & R. A. Duff (Eds.), Defining crimes: Essays on the special part of criminal law (p. 65). Oxford: Oxford University Press.
Husak, D. (2008). Overcriminalization. New York: Oxford University Press.
Husak, D. (forthcoming). Answering Duff. Law and Philosophy.
Husak, D. (forthcoming). The De Minimis ‘Defense’ from criminal liability.
Hyman, J., & Steward, H. (Eds.). (2004). Agency and action. Cambridge: Cambridge University Press.
Kamm, F. M. (2007). Intricate ethics. New York: Oxford University Press.
Kugler, I. (2002). Direct and oblique intention in the criminal law: An inquiry into degrees of blameworthiness. Burlington, VT: Ashgate Pub. Co.
Lee, Y. (2005). The constitutional right against excessive punishment. University of Virginia Law Review, 91, 677–745.
Liao, M. (forthcoming). Intentions and moral permissibility.
Mabbott, J. D. (1969). Punishment. In H. B. Acton (Ed.), The philosophy of punishment. Macmillan: St. Martin’s Press.
MacIntyre, A. (2001). Doing away with double effect. Ethics, 111, 219–255. doi:10.1086/233472.
McCarthy, D. (2002). Intending harm, foreseeing harm, and failures of the will. Nous (Detroit, Mich.), 36, 622–642. doi:10.1111/1468-0068.00404.
Moore, M. (1997). Placing blame. Oxford: Clarendon Press.
Nagel, T. (1986). The view from nowhere. New York: Oxford University Press.
Parfit, D. (forthcoming). Climbing the mountain.
Posner, R. (1985). An economic theory of the criminal law. Columbia Law Review, 85, 1193–1231. doi:10.2307/1122392.
Raz, J. (1990). Practical reasons and norms (2nd Ed.). Princeton: Princeton University Press.
Scanlon, T. M. (2000). What we owe to each other. Cambridge: Harvard University Press.
Scanlon, T. M. (forthcoming). Permissibility and intent I. The Illusory Appeal of Double Effect.
Sinnott-Armstrong, W. (Ed.). (2008). The cognitive science of morality: Intuition and diversity. Cambridge: M.I.T. Press.
Tadros, V. (2005). Criminal responsibility. Oxford: Oxford University Press.
Thomson, J. J. (1991). Self-defense. Philosophy & Public Affairs, 20, 283–310.
Thomson, J. J. (1992). The Realm of rights. Cambridge: Harvard University Press.
Thomson, J. J. (1999). Physician-assisted suicide: Two moral arguments. Ethics, 115, 497–518.
Walen, A. (2006). The doctrine of illicit intentions. Philosophy & Public Affairs, 34, 39–67.
Westen, P. (2006). An attitudinal theory of excuse. Law and Philosophy, 25, 289–375. doi:10.1007/s10982-005-8756-2.
Williams, G. (1961). Criminal law: The general part (2nd Ed.). London: Stevens & Sons.
Zaibert, L. (2006). Punishment and retribution. Burlington, VT: Ashgate Pub. Co.
Acknowledgements
I offer special gratitude to Alec Walen, who provided detailed criticisms of a previous version of this paper that are not included in his response that follows. Peter Westen also made extensive suggestions I have tried to incorporate. Thanks also to Jeff McMahan for his help with an earlier draft.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Husak, D. The Costs to Criminal Theory of Supposing that Intentions are Irrelevant to Permissibility. Criminal Law, Philosophy 3, 51–70 (2009). https://doi.org/10.1007/s11572-008-9065-2
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-008-9065-2