Is Intent Constitutive of Wrongdoing?

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

Posted: 10 Sep 2011 Last revised: 9 Oct 2011

Peter K. Westen

University of Michigan Law School

Date Written: December 1, 2010

Abstract

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

Suggested Citation

Westen, Peter K., Is Intent Constitutive of Wrongdoing? (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. Available at SSRN: https://ssrn.com/abstract=1925101

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

3178 South Hall
701 South State Street
Ann Arbor, MI 48109-3091
United States
505 577-2855 (Phone)
505 992-6885 (Fax)

Paper statistics

Abstract Views
504