Should the law distinguish between intention and (mere) foresight?

Legal Theory

Volumn 2, Issue 4, 1996, Pages 359-380

  Gorr, Michael ^a  

^a ILLINOIS STATE UNIVERSITY   (United States)

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EID: 77950062141     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000574     Document Type: Article

References (43)

1. This terminology originated with Bentham. See An INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (J.H. Bums & H.LA. Hart eds., 1970), ch. 8.
2. From here on I shall generally drop the “merely.” It should he kept in mind, however, that I assume throughout that intended consequences are themselves always to some extent foreseen, so that the real issue is what has to be added to foresight in order to produce intention.
3. For a recent, sympathetic discussion of the DDE, see Joseph M. Boyle, Jr., Toward Understanding the IMnciple of Double Effect, 90 ETHICS 527-38 (1980). Among its more sophisticated critics are Jonathan Bennett, Morality and Consfqurncrs, in THE TANNER LECTURES ON HUMAN VALUES, vol. 2 (Sterling McMurrin ed., 1981); Nancy Davis, The Doctrine of Double Effect: Problems of Interpretation, 65 PACIFIC PHIL. Q. 107-23 (1984); and Shelly Kagan, THE LiMrrsoF MORALITY, ch. 4 (1989).
4. The distinction also appears to play a role in the civil law. For example, certain forms of governmental discrimination against a suspect class may be constitutional if the government acts knowingly but not if it acts purposefully; see discussion in Kenneth W. Simons, Rethinking Mental States, 72 B. U. L. REV. sec. I (1992).
5. For a concise summary of this debate and the confusion it has engendered in British criminal law, see Alan White, MISLEADING CASES, ch. 4 (1991).
6. Hyam [1974] 41 All E.R. In addition, physicians and other medical personnel (such as Dr. Jack Kervorkian) who have been accused of mercy-killing or assisted suicide often attempt to defend themselves by arguing that their actions were not motivated by an intention to cause death (even though that was certainly a foreseen consequence).
7. See Boyle, Hyam note 3, passim, for an extensive discussion of all of the relevant conditions.
8. Michael Bratman, INTENTION. PLANSAND PRACTICAL REASON 155-60 (1987).
9. Id. at 156.
10. See, e.g., Monroe C. Beardsley, Intending, in VALUES AND MORALS (Alvin I. Goldman & Jacgwon Kim cds., 1978), and Robert Audi, Intending, Intentional Action, andDesire, in THE WA\S OF DESIRE (|ocl Marks ed., 1986). Such a view has also enjoyed considerable support in legal circles. &*Joshua Dressier, UNDERSTANDING CRIMINAL IAW 98-99 (1987).
11. Additional criticisms of the desire model are found in Michael Moore, Intentions and Mens Rea, in ISSUES IN CONTEMPORARY LEGAL PHIIJOSOPHY 246 (Ruth Gavison ed., 1987) and Duff, Intending, in VALUES AND MORALS note 7, at 52-73.
12. A good example of this sort of strategy is Duffs “test of failure”; see Duff, Intentions and Mens Rea note 7, at 61-G3. Although I cannot argue for it here, I believe this proposal is also vulnerable to the criticism mentioned in the text.
13. This line of criticism is developed more fully in Bennett, A good example of this sort of strategy is Duffs “test of failure”; note 3, at 100-05. Further problems are noted in Alan W. Nome, Oblique Intention and Legal Ihlitics, CRIM. L. R. 795-96 (1989).
14. Bratman. This line of criticism is developed more fully in Bennett note 14, at 140-43.
15. Thomas Nagel grounds his account of the significance ot the intended/foreseen distinction in terms of a similar understanding of its nature; sreTiiz VIEW FROM NOWHERE 180-185 (1986). For some important objections, see Kagan, This line of criticism is developed more fully in Bennett note 14 note 3, at 166-70.
16. A somewhat similar case is discussed by Bratman, but his example is less extreme since he docs not suppose that the pilot is aiming ni the civilians. See Bratman, Thomas Nagel grounds his account of the significance ot the intended/foreseen distinction in terms of a similar understanding of its nature; note 14, at 191-92 (n. 6).
17. One might argue that there is some doubt as to whether TAB would fully exhibit the second (or even the third) of these dispositions with respect to the civilian casualties. For suppose that he has knowledge of a bomb shelter that the Chilians are unaware of and forms the intention of informing them of this (out of a humanitarian desire to minimize their losses).
18. Gerald Dworkin, Intention, Forestealnlity, and Responsibility, in REsroNsmiLTTY, CHARACTER, AND THE EMOTIONS 348 (Ferdinand Schoeman cd., 1987).
19. Id. at 351.
20. Id. at 352.
21. Id. at 352 (emphasis added).
22. Moreover, some of Dworkin's suggestions seem premised upon a misunderstanding of what is required to defend the direct/indirect distinction. For example, the claim that, in cases of indirectly intended harm, the agent is more able to alter his plans than in cases of directly intended harm, would seem to be true only if everything is not equal, i.e., only in cases where the indirectly intended consequence is not required for the achievement of the agent's goal.
23. Glanville Wlliams, Oblique Intention, 46 CAMBRIDGE L. J. 436 (1987).
24. See, e.g., J.F. Lever, Means, Motives, and Interests in the IMW of Torts, in OXFORD ESSA\S IN JURISPRUDENCE, First Series (A.G. Guest ed., 1961).
25. “An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant and the actor's conduct is (a) for the sole purpose of causing harm to the o t h e r…” (SECOND RESTATEMENT OF TORTS sec. 829 (emphasis added).
26. In fact, the criminal law does evince a concern with a person's intrinsic objectives, as is evidenced (for example) by the general willingness to classify reckless homicide as murder where the conduct involved has no redeeming social value; see George Fletcher, RETHINKING CRIMINAL LAW 265 (1978).
27. [1915] 1 K.B.616.
28. Williams, RETHINKING CRIMINAL LAW note 29, at 437.
29. Id. at 437.
30. Oilier important issues that need to be addressed in cases of this sort are discussed by Duff, Intentions Legal and Philosophical, 9 OXFORD J. LEGAL STUDIES 84-85 (1989).
31. Williams, Intentions Legal and Philosophical note 29, at 425-30.
32. Id. at 426.
33. Duff, Id. note 7, at 176.
34. Duff, Id. note 7 note 7, at 113 (emphasis in original).
35. Charles Fried, Ricirr AND WRONG 40-41 (1978).
36. Sanford Le\y, ThePrintipbof DoubU'Effect, 20 J. VALUE INQUIRY37-39 (1986). Bennett seems to be making a similar point when he asserts that “[t]hc concept of intention has a role [only] in second-order morality, i.e., in guiding judgments on people in respect of past actions,” and that “it is a mistake to think of first-order morality-morality for the guidance of deliberating agents-as making any use of the concept of the delibcrator's future intentions” (Bennett, Ricirr AND WRONG note 3, at 97).
37. Boyle, for example, argues that the DDE is best construed as a principle at justification rather than a principle of excuse. See Boyle, Sanford Le\y, ThePrintipbof DoubU'Effect note 3, at 529-33.
38. Duff Boyle, for example, argues that the DDE is best construed as a principle at justification rather than a principle of excuse. note 7 at 112. He seems to assume, however, that consequentialists cannot recognize such harms; for a criticism of this assumption, see Gorr, Motiws and Rightness (forthcoming in PiiiLOSoruiA).
39. Gorr, Motiws and Rightness note 47.
40. I should note that while I am an “objectivist” with respect to questions of liability (since I hold that the latter is not determined exclusively by the agent's psychological states) I am a “subjectivist” with respect to culpability (which I maintain is so determined). Duff is an objectivist with respect to both since he has argued that “What relates me to a criminal harm as a responsible agent is partly the subjective connection of my action to that harm, and partly its objective connection.” (Duff, Motiws and Rightness note note 7, at 204fi). For a rigorous defense of a thoroughgoing subjectivist account of culpability, see Michael Zimmerman, AN ESSAY ON MORAL RESPONSIBILITY (1988).
41. GofT, I should note that while I am an “objectivist” with respect to questions of liability (since I hold that the latter is not determined exclusively by the agent's psychological states) I am a “subjectivist” with respect to culpability (which I maintain is so determined). note 40, at 57.
42. As Gilbert Harman has observed, side effects will normally not be as salient as means or ends, a fact that is of considerable importance in a theory of rational decision making. Set Harman, CHANGE IN VIEW, ch. 9 (1986).
43. R.G. Collingwood, AN ESSAVON-METAPHYSICS 285-327 (1910).