essays on intention in criminal law

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First page of “Codifying the Meaning of ‘Intention’ in the Criminal Law”

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Codifying the Meaning of ‘Intention’ in the Criminal Law

2009, The Journal of Criminal Law

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Mod. L. Rev., 1995

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 (2009), Chiao (2010) and Walen (2009)). We then turn to some influential theories that articulate a direct role for intentions (e.g., Duff (2007), Husak (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.

Criminal Law and Philosophy , 2016

The paper attempts to bring to the surface the obvious question associated with the fault element of the offence of murder and culpable homicide, regarding its unsettled position and the consequent obvious liberty of which the courts take benefit of in interpreting the presence or absence of fault element in a particular set of circumstances. The reasoning behind the importance of this interpretation is the dependency of the culpability of the accused in a given case on the presence or absence of the fault element. Therefore, understanding the importance of the fault element of intention, it is necessary to understand its anatomy. The absence of any definition of the primary fault element(s) makes the interpretation cumbersome and let the courts adopt a comfortable posture in interpreting the fault element, especially intention; in the offences of culpable homicide or murder.

Diritto Penale XXI Secolo, 2016

For more than thirty years the English law established that whenever two defendants had a common intention to commit a particular crime, but one of them committed another crime, the other party was criminally liable for the acts by the primary offender if he had foreseen the possibility that he might have acted as he did. The principle was based on the equation between foresight and intent. The recent decision of the UK Supreme Court in the joint cases Jogee and Ruddock changes the law, by restating the older principle according to which the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. Foresight is not equivalent to authorisation. This decision has the effect of bringing the mental element of the secondary party back into broad parity with what is required of the principal and of narrowing the scope of criminal law. It can also stimulate Italian lawyers and law-makers to start a thorough rethinking of the law of the much-debated concorso anomalo.

The current legal system is derived from a public attribution of guilt that is based upon a lack of properly understanding intention. This is indicated by a predilection towards retributive justice which is itself based on a view of free will that is scientifically untenable, that of libertarian free will and the non-contextual formation of intention. The improper understanding is tied to psychology’s lack of formally defining intention in a consistent fashion both for legal matters and in the study of psychology. This inconsistency is based upon a continued adherence to the structure of Cartesian dualism, in keeping the nature of a disembodied mind but applying the attributes of such to the brain. Solving the problem of wrongful justice begins with a rewriting of the philosophical underpinnings of intention via the work of Maurice Merleau-Ponty and subsequently creating a system of justice that is restorative.

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