Is Intent Constitutive of Wrongdoing?
Peter K. Westen
University of Michigan Law School
December 1, 2010
CRIME, PUNISHMENT, AND RESPONSIBILITY: THE JURISPRUDENCE OF ANTONY DUFF, pp. 193-214, R. Cruft, M. Kramer, Mark Reiff, eds., Oxford University Press, 2011
U of Michigan Public Law Working Paper No. 253
Conventional wisdom has it that criminal conduct consists of two inculpatory elements: wrongdoing, which is a function of socially-undesirable harms and risks that can be defined independently of an actor’s subjectivity; and culpability, which is a function of an actor’s subjectivity. Antony Duff challenges this paradigm by advancing thesis that some commentators equate with the much-mooted Doctrine of Double Effect. Beginning in Intention, Agency and Criminal Liability (1990) and continuing in Criminal Attempts (1995) and Answering For Crime (2007), Duff argues that an actor’s intent to inflict harm (as opposed to his willingness to harm or to endanger) can affect not only the actor’s culpability in acting but also the wrongfulness of what he does.
As part of a volume in honor of Duff, I examine Duff’s thesis, distinguishing it from the much-criticized Doctrine of Double Effect, while at the same time questioning whether Duff shows that intent is constitutive of wrongdoing sufficient to justify the normative weight he accords it and, if so, whether he also shows that an actor’s willingness to inflict harm differs significantly in that respect from intent to inflict harm.
Keywords: Intent, Wrongdoing, Culpability, Double Effect, Endangerment
Date posted: September 10, 2011 ; Last revised: October 9, 2011