The Relevance of Intention to Criminal Wrongdoing
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In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan (Crime and culpability: a theory of criminal law. Cambridge University Press, New York, 2009), Chiao (Crim Law Philos 4:37–55, 2010), Walen (Crim Law Philos 3:71–78, 2009)]. We then turn to some influential theories that articulate a direct role for intentions [e.g., Duff (Answering for crime: responsibility and liability in the criminal law. Hart Publishing, Portland, 2007), Husak (Crim Law Philos 3:51–70, 2009)]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing.
KeywordsDouble effect Intention Intend/foresee distinction Means principle Criminal law
We are very grateful to Alec Walen and Doug Husak for organizing the Workshop on Deontology and the Criminal Law and for the opportunity to think and write about these issues. We owe many thanks to Larry Alexander, Alex Guerrero, Heidi Hurd, Doug Husak, Matthew Liao, Jeff McMahan, Jonathan Quong, Victor Tadros and Ralph Wedgwood for their questions and suggestions, to all of the conference participants for thought-provoking discussion, and to Alec Walen for very helpful written comments on the paper. We are grateful to Chirag Barai for his exceptional research assistance. Finally, we are indebted to Michael Moore for his excellent commentary.
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