57 Pages Posted: 26 Jun 2007
The conventional view is that a result is intended if it is motivationally significant - i.e., if it is why the person acted. However, inseparable effects cases place pressure on this conventional view for we intuitively reject the claim that, for instance, one can intend to decapitate without intending to kill. These cases therefore threaten an important border in both law and morality - the distinction between what we intend and what we foresee.
In resolving the problem of inseparable effects, this article challenges the conventional view that intentions are co-extensive with motivational significance. Drawing on philosophy of mind literature, I argue that intentions are not one-dimensional propositions, but rather, intentions are multi-dimensional and multi-meaning. When an actor intends "to kill Sally," she does not merely intend to kill five letters, but rather "Sally" in the many meanings that the actor ascribes to Sally. All of these meanings are what the actor intends.
Recognizing the multi-dimensionality of intentions explains how it is that we can classify an intention to do one act ("kill Sally") as the intention that the statute prohibits ("kill a human being"). This multi-dimensionality also reveals why our proximate causation doctrines yield that an actor has done what she intended to do, even if the result the actor causes is not precisely the result at which the actor aimed. Intentions are broader than one specific description.
However, this deeper understanding of how our criminal law actually employs intentions reveals a fundamental problem. If intentions are broader than motivational significance, if they do more than reveal why the actor did what she did, then intentions are not the windows to human agency. Intentions are broader than an agent's reasons for acting. Thus, to the extent that we care about reasons because reasons are what separate the permissible from the impermissible, or the significantly culpable from the less culpable, then we must abandon our reliance on intentions.
Keywords: criminal law, intentions, doctrine of double effect, inseparable effects
Suggested Citation: Suggested Citation
Ferzan, Kimberly Kessler, Beyond Intention. Cardozo Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=996475