Mind Association

Intention and Foresight in LawAuthor(s): Raymond LyonsSource: Mind, New Series, Vol. 85, No. 337 (Jan., 1976), pp. 84-89Published by: Oxford University Press on behalf of the Mind AssociationStable URL: http://www.jstor.org/stable/2253257 .

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DISCUSSIONS

Intention and Foresight in Law'

RAYMOND LYONS

At one time there was a presumption in English law that a person intends the natural consequences of his acts. Many lawyers and philosophers felt that this presumption was undesirable because it required verdicts and punishment which they thought were unjust. For example, a defendant would have to be convicted of murder in a case where the death of the victim was foreseeable (by a 'reasonable man') regardless of the fact that the death was neither intended nor foreseen by said defendant. The final decision in one such case (D.P.P. v. Smith [I96I], A.C. 290) provoked enough dissatisfaction to bring about a change in the law. The change came in the Criminal Justice Act of I967, which made the following clause into law: 'A court or jury, in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.'

In short, there has been a shift from an objective test for intent and foresight to a subjective one. This, of course, precludes some 'natural' consequences from being treated as if they were intended. It does not, however, preclude foreseen (as opposed to foreseeable) consequences from being so treated. That is a matter to which the clause in question does not address itself. Any jurisdiction which adopts the clause could, in addition, presume that a person intends any foreseen consequences of his acts. The fact that this is (or is not) presumed in present day English law is not of crucial importance to the philosophical points I wish to make in this paper. In the philosophical arena what is important is to see that there are good reasons for there not being such a presumption in the law of any jurisdiction.

One of the main arguments against the presumption (the only one I will defend in this paper) is that in many cases a clear moral distinction is obliterated by it. Anthony Kenny, for instance, has pointed out that 'there seems to be a moral difference between appointing the best man to the job knowing that this will pain the rival candidate, and appointing him in order to pain the rival candidate'.2 This kind of moral difference

I I am especially indebted to William Winslade for arousing my interest in this subject, and for criticisms of earlier drafts of the paper.

2 Anthony Kenny, 'Intention and Purpose in Law', Essays in Legal Philo- sophy, ed. Robert S. Summers (Oxford: Basil Blackwell, I968), p. I6o. This is a revised version of a paper which appeared in The Yournal of Philosophy (I966).

84

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INTENTION AND FORESIGHT IN LAW 85 also occurs in life and death matters in which the law is involved. As an example, Kenny gives the following:

Consider the case of two nurses, each of whom is in possession of a poison and a pain-killing drug which are indistinguishable to the eye and have in some way been mixed up in the medicine cabinet so that she does not know which is which. Nurse A gives a pill to her patient, whose money she stands to inherit, hoping but not knowing that it is the poison. Nurse B gives a pill to her patient, who is in great agony, hoping but not knowing that it is the pain-killing drug. Neither nurse is blameless; but most people, I imagine, would feel that there was an important moral difference between the actions of the two, even if the patient dies.'

Kenny apparently makes the reasonable assumption that when every- thing except the intentions and possible consequences are the same, acting with the intention of bringing about an evil consequence is always morally worse than acting with foresight of that possible consequence. Be that as it may, Kenny does conclude that the law ought to reflect the moral difference brought out by his example, and therefore the law should not treat foreseen consequences as if they were intended.

In a recent paper, Hans Oberdiek claims that Kenny's example fails to support the conclusion that the law should not treat foreseen consequences as if they were intended. He argues that a slight alteration in the circum- stances involved with the nurses' acts will lead to a different moral judgment. First, Oberdiek agrees that there is a moral difference between the actions of Kenny's two nurses. Then he says:

But this difference does not depend on intention and foresight alone, for we can easily make B's conduct appear worse than A's by altering the circumstances. Suppose that A's patient is a known Mafia leader who has cleverly avoided prosecution; Nurse A gives him a pill hoping but not knowing that it is the poison. Like the Mafia leader, B's patient is not mortally ill, though he is in agony. Unlike him, however, B's patient is a benevolent man who is a valued member of his community; Nurse B gives him the pill hoping but not knowing that it is the pain-killing drug. Again, neither nurse is blameless, but surely most people would feel that B's action was morally worse than A's even though A hoped to kill her patient and B did not. Intention is but one by no means simple factor affecting the morality of an act.2

Thus Oberdiek argues that acting with foresight of a possible conse- quence is, in this case, morally worse than acting with the intention of bringing about that consequence. But is this correct? I think not. And even if an example could be devised in which it would be correct, it would still, in my opinion, not justify the conclusion that the law should treat foresight as if it were intention. I hope to show this in what follows. I Kenny, p. i6o. It should be noted that Kenny (as well as Oberdiek) intends

the word 'hoping' to be read in the sense in which 'intending X' is implied by or is part of the meaning of 'hoping X'. I believe this is a perfectly legitimate use of the word and I see no need to argue for it.

2 Hans Oberdiek, 'Intention and Foresight in Criminal Law', Mind, lxxxi (1972), 399-400.

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86 RAYMOND LYONS:

To make a comparative moral assessment of the nurses' acts (or even of the characters of the nurses in view of the acts they performed), one must first describe the acts in question. Given a legal-moral context in which we want to justly charge, convict and sentence, how should the nurses' actions in Oberdiek's example be described? For example, how should the prosecutors and defence attorneys, who by hypothesis seek nothing more than that justice be done, describe the acts in question? Should both acts be described merely as the giving of a pill to a patient? Or should they both be described as the giving of a pill to a patient by a nurse who did not know whether the pill was a poison or a pain-killer? Under either of these descriptions nurses A and B did the same thing, and if we ignore further possible consequences of their acts, they are equally morally at fault. It could then be argued that each is guilty of nothing more than gross recklessness-they both recklessly disregarded the very serious risk that a patient might die as a result of their acts.

This analysis, however, is inadequate, and for more than one reason. The major defect is its unwarranted failure to take into consideration the intentions with which the pills were given. In the case of Nurse A, it is stated that the pill was given to the Mafia leader with the hope (intention) that it would kill him. In the case of Nurse B the pill was given to the benevolent man with the hope (intention) that it would relieve his pain.

Put into the language of attempts (because we do not know what finally happens to the patients) it would be appropriate for the prosecutor and defence attorney to describe B's act as an attempt to relieve her patient's pain. This description would be appropriate in spite of the fact that the bizarreness and stupidity of Nurse B's action would make any description which includes her intention appear odd. At least for B, then, I would agree with the proponents of the earlier inadequate analysis when they say that B is guilty of gross recklessness. That is, it was grossly reckless of her to attempt to relieve her patient's pain in the way she did. As for Nurse A, it would be appropriate to describe her act as an attempt to kill the Mafia leader. After all, that is what she sought to do by giving him the pill. She intentionally tried to kill her patient, and she should be charged with attempted murder if the Mafia leader lives, and murder if he dies.

Consequently, in Oberdiek's (and in Kenny's) example what we have to do is compare the morality of an act of gross recklessness with the morality of an act of attempted murder (there is more to it than this, but the rest will come later). Normally an act of murder is more serious, legally and morally, than an act of recklessness, and I for one see no good reasons for thinking the nurses' acts are exceptions.

Now, assuming that Oberdiek was aware of what each nurse would actually be guilty of, why would he conclude that the reckless act was morally worse than the act of attempted murder? He does not deny that the nurses' intentions are relevant. But he apparently feels that the characters of the patients are significant factors which outweigh the importance of the intentions. A consequentialist approach to morality seems to be behind this. No matter what happens to the patients, there will on balance be more good than harm done as a result of A's act of attempted murder, whereas with nurse B the opposite will be the case.

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INTENTION AND FORESIGHT IN LAW 87 A consequentialist approach such as this, however, leads to difficulties.

For, as stipulated by Oberdiek, the comparative moral assessment must be made prior to knowing what most of the actual consequences of the acts are. What we have for the most part are possible (or probable) consequences. Thus the consequentialist would have to claim that one good consequence of A's act of attempted murder is that it brings about more good possible consequences than bad. And similarly for B, except that in her case more bad possible consequences are brought about than good. For Nurse A with her Mafia leader, for instance, the possibility now exists that there will be less underworld activity in the community, which is good. As for Nurse B's benevolent man, the possibility now exists that there will be fewer good works done in the community, which is bad. After adding up all the goods and bads it turns out (I am granting this for purposes of argument) that more good is on the side of Nurse A who attempts to murder her patient than is on the side of Nurse B who reck- lessly attempts to relieve pain. The evil outweighs the good in both cases, though less so for A than for B. If Oberdiek followed this sort of approach we could at least understand why he concludes that both nurses are blameworthy and that Nurse 'B's action was morally worse than A's even though A hoped to kill her patient and B did not'.'

Such an analysis appears to conflate two fairly distinct kinds of moral judgment, i.e. judgments of acts and judgments of actors. Although con- sequences are of prime importance in the former, they are of much less importance in the latter. To embellish the point, my claim, following Frankena, is that we make moral judgments of the rightness or wrongness of acts, not persons. And, except in a derivative sense,2 we judge the moral goodness or badness of intentions, persons and/or characters but not of acts. Moreover, we do not go around blaming things called acts. Rather we blame persons for performing wrong acts in certain circumstances. Acts per se are blameworthy only in a derivative sense.

Now the fact is that consequences have overwhelming importance only in the area of the moral judgments of the rightness and wrongness of acts. Intentions in the latter area are not as important because they generally do not mitigate moral wrongness very much. We say 'It was wrong, but don't blame her too much-she had good intentions'. In most cases (there are exceptions) a person is bad and/or blameworthyfor performing a wrong and/or illegal act. Consequences do play a role in determining the extent of a person's blameworthiness, but that role is never overwhelming. The extent of the person's blameworthiness is determined by weighing many complex factors. These include such things as consequences, the agent's awareness of the consequences, the seriousness of the consequences, the agent's awareness of their seriousness, the duty to be aware of these things, the agent's overall character and conduct now and in the past, and, most

I From Oberdiek's example, p. 3 of this paper. 2 An act is morally good (or bad) only in virtue of the good person who

performed it and/or in virtue of the good intention with which it was performed. This is what I mean by 'derivative'. Similarly, an act is blame- worthy in a given instance only in virtue of the blame we put on the person who performed the act.

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88 RAYMOND LYONS:

importantly, the intention with which he or she performed the act in question.

In any case, since there are these two kinds of moral judgment, it will not do to conflate them and let consequences have too much say in judging character or persons. For from the fact that the consequences of an act are morally horrible, it does not follow that the actor is always 'morally worse' than one who performs an act with somewhat less horrible con- sequences. The person who shoots and kills the Mafia leader simply for monetary gain may be judged to be the most despicable assassin, whereas the person who in a fit of rage shoots and kills a benevolent man may, in comparison, be judged to be a much better human being.

Though it is difficult to be sure about what underlies Oberdiek's position, it appears that he takes a consequentialist approach to the moral assessment of the nurses' actions, and does not see that this is not the same thing as assessing the characters of the nurses or the nurses them- selves ('Neither nurse is blameless.' But 'B's action was morally worse.'). Thus he does not see that although the consequences may be the primary factors in the moral judgment of an act, it is the intentions which are of prime importance in the judgment of the person performing the act. With this in mind there seems to be good reason to think that 'most people' would say one of two things: (i) Feeling worse about the loss of a benevolent man than I do about the loss of a Mafia leader does not imply that I feel that the act which led to the former is 'morally worse' than the act which led to the latter. Nurse A's act is morally worse and so is she. Or, (2), I think that though the act of bringing about the serious possibility of the death of the benevolent man is morally worse than the same possibility with the Mafia leader, the character of the would-be killer in the latter case is morally worse than the character of the reckless person in the former case. Under both (I) and (2) intentions are by far the most important factors in judging persons who act wrongly.

But where does this leave the question we began with, i.e. should the law treat foreseen consequences as if they were intended? Kenny claimed that one reason the law should keep them separate is the moral distinction involved. Oberdiek tried to show that the moral distinction could be used both for and against separation. But if my analysis is correct his example is far from convincing. Moreover, my analysis of Oberdiek's example makes it evident that if foreseen consequences are treated as if they were intended, we are going to have to be willing to charge and convict people like Nurse B with crimes of which they are not guilty (attempted murder or murder when what she is guilty of is gross recklessness). I believe this is something we should not be willing to do unless there is an extremely good reason for doing so, which there is not.

Nevertheless, I admit there is at least a remote possibility that a case might arise or be devised in which an actor who merely foresaw a given consequence is rightly judged to be 'morally worse' (and more blame- worthy) than his counterpart who intended the consequence. If so, it might once again be thought that Kenny's example fails to adequately support his position that the law should not treat foreseen consequences as if they were intended. But, given the patently obvious distinction

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INTENTION AND FORESIGHT IN LAW 89

between the act and the actor, this would be a mistake. For as Oberdiek himself points out, conviction for committing a criminal act is one thing and the sentencing of the actor is another. Therefore an actor who foresaw a consequence could, independently of treating foresight as if it were intention, be punished just as severely as an actor who intended the consequence. There seems to me to be every reason to have this kind of flexibility in legal systems.

Thus in this particular case Oberdiek has failed to provide a good reason why we should treat foresight as if it were intention. Kenny's example, on the other hand, gives us a fairly good reason for not doing so.

SAN BERNADINO VALLEY COLLEGE

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