The Relevance of Intention to Criminal Wrongdoing
Dana Kay Nelkin and Samuel C. Rickless [to appear in Criminal Law and Philosophy]
Intentions are seemingly ubiquitous in the criminal law. Their presence can turn reckless
homicide into first-degree murder, reckless endangerment into attempted murder, violation of a
security clearance into treason, and inadvertent mistake of fact into perjury.
But should
intentions play the pivotal role that they do in determining the categorization of crimes?
Recently, there has been a lively debate about this question that mirrors, and at points
interacts with, a parallel debate in moral philosophy about whether intentions are relevant in an
important way to moral impermissibility.1 The latter debate focuses on the question of whether
what is permissible depends in part on what intentions the agent has in acting as she does. Can
the agent’s intentions ever change a permissible action into an impermissible one or vice versa?
In some cases, the arguments in favor of the irrelevance (or relative lack of importance) of
intentions to criminal wrongdoing have counterparts in the debate about moral impermissibility.
In other cases, the arguments include particular premises concerning the function and nature of
the law that lack obvious counterparts in the moral realm.
In earlier work, we have defended the thesis that intentions are relevant to moral
permissibility and impermissibility, and have developed a particular variant of the so-called
“Doctrine of Double Effect” that incorporates a role for intentions in the determination of moral
permissibility.2 In this paper, we extend this reasoning to the legal realm. We argue that
intentions are indeed relevant and important to criminal wrongdoing, although not in all the
particular ways that they have been taken to be in the law. We begin in section 1 by answering
some recent arguments, focusing on particular features of the criminal law, that advocate
1
marginalizing or eliminating the role of intentions as components of criminal wrongdoing. We
then turn in section 2 to more general arguments for the same conclusion, and show that while
they raise large and interesting questions about the nature of the law, they ultimately rely on
questionable premises. In section 3, we explain how intentions can properly be seen as relevant
in an important and basic way to the categorization of wrongdoing, and in section 4, appealing to
the general function and point of the criminal law, we explain why they are relevant to criminal
wrongdoing in particular.
1. Some Puzzles: Attempts and Endangerment
In a number of jurisdictions that follow the Model Penal Code, we find the following: reckless
conduct that risks with near certainty, but fails in the end, to cause harm is punishable mildly, if
at all; attempts to cause harm that fail receive significantly harsher sentences. 3 And yet if the
reckless conduct causes harm, in some jurisdictions it can be punished nearly as severely (and in
some cases as severely) as an attempt that causes the same harm.4 This poses a challenge to the
idea that intentions should be relevant to criminal wrongdoing because it reveals an “indefensible
gap,” as Chiao (2010, 38) puts it, in the treatment of different kinds of conduct; it should push us
to replace the current distinction in crimes between attempts that require intention and reckless
endangerment that does not. The reasoning seems to be that distinguishing crimes on the basis
of intentions leads to counterintuitive results. A system that does not do so can avoid such
results and should be pursued.
As LaFave (2010) describes the situation for various
jurisdictions,
2
If A, B, C, and D have each taken the life of another, A acting with intent to kill, B with
an intent to do serious bodily injury, C with a reckless disregard of human life, and D in
the course of a dangerous felony, all are guilty of murder because the crime of murder is
defined in such a way that any one of these mental states will suffice. However, if the
victims do not die from their injuries, then only A is guilty of attempted murder. (617)
To illustrate, consider Jones v. State (689 N.E.2nd 722 (Ind. 1997)). The defendant, Curtis Jones,
fired several shots into a home in which fifteen to twenty people were socializing. Three shots
hit one victim who then bled to death, and one hit the arm of another victim who survived. Jones
was convicted of murder in the case of the first victim, but acquitted of attempted murder in the
case of the second. Jones argued (unsuccessfully) on appeal that these results were inconsistent.
Given that the shots were fired in rapid succession, if he did not even attempt murder in the
second case, he could not have been guilty of murder in the other case, not having attempted it in
either.
A related puzzle meant to “illustrate the absurdity that the application of this distinction
[between intention and mere foresight] might have in the case of attempted murder” is presented
by Hart (2008), who in turn credits Glanville Williams:
Suppose one man is walking with another along the edge of a cliff and sees a diamond ring
on the path before him. Knowing that his companion also wishes to get the ring, he pushes
him over the cliff, believing that this will in all probability lead to his death, but, in fact, a
3
bush breaks his fall a short distance down the cliff, and he is unharmed. This, according to
the usual interpretation of the notion of an attempt, probably does not constitute an attempt to
murder, for A did not push his companion over in order to kill him, though he believed it
would cause his death; whereas if, in order to get the ring, instead of pushing the victim over
the cliff, A had shot at him to kill him but missed, this would have been attempted murder.
Yet the ultimate aim is the same in both cases. (126-127)
Hart concludes that no “intelligible theory of punishment,” based on either deterrence or
retribution, could justify the distinction. Both forms of behavior, being equally harmful, are
equally in need of deterrence by the law. And Hart expresses understandable skepticism of the
rationale that in the shooting case, the companion is “used” and so the agent has a special “evil
aim” in this case. Why should the attempt in the shooting case be treated as attempted murder
with a significant punishment while the push off the cliff that luckily does not lead to the death
of the companion receives at most a charge of assault?
Finally, add one more feature of the law to the mix to generate a third puzzle: killing
from reckless endangerment can receive a higher sentence than intentional murder that is
provoked. Here, contrary to the other cases, crimes with the intention to kill receive a lower
sentence than those without, and this is intuitively as it should be.5 Put all of these features of
the law together, and the challenge is to explain them with a consistent rationale. If the ultimate
ground for singling out criminal intention as a special factor in categorizing crimes is, say, that
criminal intentions always make the moral character worse, then the law seems incoherent. The
third puzzle is really then a challenge at a higher level, a challenge to explain the role of the
intentions as they appear in a variety of different contexts in the law in a consistent way.
4
Although we believe that each of these puzzles is interestingly different and requires a
distinctive response, our general approach to defending the relevance of intentions in the
criminal law will be the same in each case. First, we do not think that an account of the
relevance of intentions should be burdened with vindicating all aspects of the criminal law as
currently structured. The law may very well be in need of revision (and, indeed, we believe it
is). Second, none of the puzzles generates counterintuitive results for the claim that intentions
have relevance for criminal wrongdoing without appeal to a number of additional premises, at
least some of which might be questioned.
Begin with the first puzzle, and focus on Jones. It is true that there is something
problematic about Jones’ receiving a heavy sentence for murder on the one hand, and, at most, a
light sentence for reckless endangerment on the other. (The Model Penal Code has it that the
latter is a generic one-year sentence.) In particular, it seems odd that it is sufficient for murder
that one act either with the intention to kill or certain foresight; but to receive the sentence of
attempted murder, one must have an intention that one need not have to be convicted of murder.
If one gets lucky enough, due to factors entirely out of one’s control, that the person merely
endangered survives, one gets a very light sentence; whereas were the endangered person to die,
one would get the same sentence as one who intended to kill. Intention seems to make no
difference if harm befalls the victim, but it is given significance if harm does not. Here is the
picture:
(A) Foresight with No Intention + Death Caused = Murder (heaviest sentence H)
(B) Intention + Death Caused = Murder (heaviest sentence H)
5
(C) Foresight with No Intention + No Death Caused = Reckless Endangerment (light
sentence L)
(D) Intention + No Death Caused = Attempted Murder (relatively heavy sentence RH)
Notice, though, that to get this result we need not only the distinction between crimes that require
intention to harm and crimes that require only foresight; we also need a significant difference in
the associated sentences.6 And also notice that at least some of the absurdity in this case comes
from the distinction between two crimes and their corresponding sentences, neither of which
requires intention to harm, namely, reckless endangerment that results in harm and reckless
endangerment that does not (that is, between A and C). Why should the fact that the world
cooperated or not, in ways that are completely out of the control of the agent, have any bearing at
all on the agent’s degree of culpability? Many have denied that such factors should have any
such bearing at all on culpability—on moral blameworthiness on the one hand, and on legal
responsibility on the other. To deny that such factors have any role in determining moral or legal
culpability is to deny the existence of “moral luck” or “legal luck”. This particular absurdity can
be avoided by removing a role for outcome luck in our categorization of crimes. Now there may
be good practical reasons for the law to continue to preserve some role for outcomes, and we will
not enter into this debate here.7 Our point here is simply that insofar as the problematic outcome
in the Jones case depends on the acceptance of outcome luck, it can be avoided by rejecting such
luck, leaving intact any assumption that intentions ought to play a role in the categorization of
crimes.8 For example, we could bring the sentences for A and C into line with each other and
thereby remove at least one aspect of the absurdity in this case. (Consistency would also
6
recommend doing the same for B and D.) But this leaves open whether the pair of A and C
ought to be treated exactly as B and D, or differently. We will return to this question shortly. 9
In the meantime, turn to the second puzzle, set out by Hart. One nice feature of the
diamond case is that it sets aside outcome, and focuses strictly on the comparison of attempt with
reckless endangerment to generate an absurdity. As Hart observes, whether the agent shoots to
kill or pushes his companion off a cliff believing with near certainty that he will die seems
irrelevant to judging either the agent’s “wickedness” in acting or the dangerousness of his action.
Walen (2009, 75) brings out the apparent absurdity even more vividly by imagining that the
agent would shoot to kill if the companion were not near the cliff and push if he were; the choice
is determined entirely by convenience. What reason could there be for treating these cases
differently, or as separate crimes?
Our response to this case has multiple parts. First, we note that in Hart’s original case,
for the point to go through, the shooting must be a shooting with an intention to kill (a feature of
the case that Walen helpfully emphasizes). But the case as described does not make such an
intention plausible; for shooting to disable for long enough to have an opportunity to secure the
diamond ring would suffice for achieving the ultimate aim. Hitting the companion’s foot would
do just as well as hitting the heart for this purpose. Thus, it may be that the force of the intuition
that the cases ought to be treated similarly rests on our failure to successfully imagine what we
must in order for the intuition to show what it purports to show. It is natural to think that both
cases really are similar, even in respect of intentions—in both cases, the person’s intermediate
aim is to get the person “out of the way” for long enough to allow the collection of the ring. We
could, of course, change the case to make the features sought more salient. It is not immediately
obvious that changes wouldn’t change our intuitions. For example, if we imagine that when the
7
agent shoots, his companion’s death is necessary for his plan in some way (e.g., it is only by
using his companion’s dead body as a counterweight to pull himself up to the location where the
diamond is), then it is possible this would seem to be more culpable than pushing him over the
cliff without the intention to kill. But we are willing to agree for the sake of argument that in this
case—or another, better, and easily conceivable one—both are equally “wicked.”10 Let us grant
this conclusion. Does it follow that the two kinds of behavior ought to be captured in a single
crime of endangerment? We do not believe that this follows. For intentions to be relevant, they
can be one factor, but not necessarily the single decisive factor, in determining degree of
culpability.
In fact, they need not always make a positive contribution to the degree of
culpability when all else is equal. The fact that they can make such a contribution in some
circumstances when all else is equal is enough to bring out their relevance.11 Turning to the
moral sphere for a moment, it seems that there are circumstances in which someone’s intentions
regarding harm can make a difference to moral permissibility.
For example, consider the
difference between the terror bomber who aims at children’s deaths and the strategic bomber
who merely foresees them in his aim to destroy a munitions factory.12
This idea also allows us to address the third puzzle. While it is true that some crimes that
require the intention to harm are associated with a lower sentence than some crimes that are
missing any intention to harm but that result in the exact same harm (as when we compare killing
with provocation vs. recklessly killing), and true that at other times intention seems to be
invoked as a justification for increasing culpability, this does not preclude a perfectly consistent
rationale. For intentions are but one of several factors that determine culpability. Notably, in the
case of killing with provocation and reckless killing, not all else is equal. So we should not be
surprised that other factors, such as provocation, can be mitigating. This is not to endorse the
8
treatment of reckless killing as any particular part of the current categorization. However, it
shows that even if it were the job of advocates of the relevance of intentions to justify the current
system, they have the resources to consistently justify the fact that crimes with intentions
sometimes receive higher sentences than ones without and sometimes lesser ones.13
At this point, we take ourselves to have shown that the advocate of the relevance of
intentions for criminal wrongdoing can offer solutions to a set of puzzles used to challenge the
view. But this is not to have fully defended the relevance of intentions either. Two tasks remain.
The first is to address more general arguments in favor of irrelevance (or relative unimportance).
The second is to explain why intentions should in fact have a role in the categorization of crimes,
and in particular what that role should be. In section 2, we turn to arguments in favor of
irrelevance, and in answering these arguments, we believe a more positive argument for a role
for intentions emerges. We explain why in sections 3 and 4.
2. Unification Arguments
One kind of argument that is initially suggested by the particular deployment of the puzzles
discussed in section 1 is that we ought to dispense with intentions in carving out categories of
crimes for the reason that intentions do not make a difference to degree of culpability. (It is easy
to read Hart’s remarks, quoted above, as suggesting this kind of reasoning, for example.) But by
itself, we believe that this cannot be a good rationale for sidelining intentions. We argued above
that intentions can make a difference to degree of culpability, but also that they do not
necessarily always increase that degree. Here we point out that even if it turned out to be true
that, say, attempted murder and recklessly endangering lives with near-certain foresight were
associated with equal degrees of culpability across extenuating circumstances, it would still not
9
follow that these ought not to be treated as separate crimes. To see why, simply imagine other
pairs of crimes with similar sentences which there seems to be good reason to treat separately:
e.g., in Connecticut, importing child pornography and robbery with a deadly weapon, two
distinct crimes, have the same minimum and maximum sentences.14 Abstracting from the
question of what the punishment range should be in any particular cases, this example and others
like it should suffice to show that the inference from appropriate degree of punishment to
“should be the same crime” is unsound.
A better argument, and one that is more charitable to Hart, relies on the inference not
from equal degree of culpability, but from sameness of reason why the behavior is criminally
wrong and punishable. That is, if the reason why the behavior is criminal is the same in both
cases, then there should be just one crime. As Hart also points out, the two crimes in question
seem to be equally wicked, and the agent in both cases has the same “ultimate aim”. So if our
ultimate aim in the criminal law is retribution, it makes sense to treat these in the same way and
punish equally. They also appear to be equally dangerous, creating equal risks of the same
particular outcome, namely, death. So if our ultimate aim is deterrence, we also get the same
result. In what we think is a similar vein, Chiao (2010) suggests that
the boundaries between attempt and endangerment in the law are essentially arbitrary,
and do not mark anything of great independent moral significance. Both attempt and
endangerment exist to regulate unreasonably dangerous conduct, and that this function
happens to be divided over two legal categories may be of historical or political, but not
philosophical interest. (48)
10
This form of argument is more subtle than the first with which we began. The idea is to identify
a common reason for prohibition of the two kinds of behavior, thereby showing that the
distinction between them is arbitrary.
At this point, however, the question naturally arises at what level we ought to seek a
common reason in classifying crimes. If we turn to the justification or purpose of the criminal
law itself, it would seem to follow that there ought to be only a single crime: don’t do things that
the state is justified in prohibiting, or don’t do things that unreasonably endanger people or
interfere with their interests, for example. We will soon turn to a position that approaches
acceptance of this kind of view. But it is also worth noting that an alternative position is to
appeal to purely practical reasons for distinguishing between crimes; for example, people can
respond better to more specific directives than to a general one.15 Setting aside practical reasons
for arbitrary classifications, we are persuaded that one can find principled reasons to categorize
crimes that are at a level different from the level of the reasons that justify the existence of the
criminal law as a whole. In the final sections, we explain why and how we believe that
intentions are relevant to criminal categorization. At this point, we simply aim to emphasize that
this second argument that appeals to underlying reasons in the categorization of crimes goes only
so far; which reasons there are remains an open question, and thus so does the corresponding
categorization.
Let us turn to a final and intriguing argument in favor of the irrelevance of intentions for
categorization. Alexander and Ferzan (2009, 38) (drawing on Alexander (2000)) argue for the
view that “as a conceptual matter” and as a normative matter, acting with intention is just a
“species” of recklessness and can be “reduced” to it. To begin, they explain the grounds for
criminalizing reckless behavior. There are two “axes” on which to evaluate any behavior that
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risks harm: the degree of risk perceived by the actor, and the reasons the actor has for imposing
the risk. More specifically, the risk in question is the risk believed by the agent to exist (not the
God’s-eye perspective); and the reasons in question are the reasons for the agent’s “choice to
impose this risk.” Evaluating culpability depends on an assessment of both of these factors. For
example, it may be that if one has very bad reasons for imposing even a small risk, one might
have a high degree of culpability. Suppose that one fires bullets from a great distance into a
sparsely populated square; the odds of hitting a person are small (say, less than .1%). But one
does it simply for fun. Intuitively, this seems like it should be prohibited, and punished with
relative seriousness. On the other hand, taking a greater risk, but for good reasons, may make
one less culpable. For example, suppose one drives well over the speed limit in order to defuse a
ticking bomb in a crowded market.
One risks hitting other cars and harming drivers and
passengers, but it might even be justified in such circumstances to take such a risk. This is, at
least initially, a plausible analysis of recklessness: whether acting while perceiving risks of harm
should be criminalized depends on the two factors of perceived risk and the agent’s reasons.
With this framework in place, Alexander and Ferzan argue that acting with knowledge is
just a limiting case of recklessness, since they understand the case to be one in which the
perceived risk is simply 1. Then they go on to argue that acting with purpose, or intention, is
also just a case of recklessness, and this will be our focus here. In order to kill with (criminal)
purpose, one must believe that one imposes a risk of death on the one hand, and, on the other,
one’s reasons are “presumptively” unjustified. Thus, they conclude, the culpability of an agent
acting with purpose “ultimately turns on both his reasons for acting and his belief as to the
likelihood of success” (38). Since “purpose and knowledge require that we look to both risks
12
and reasons…they function in exactly the same way as does recklessness” (42). Thus, purpose
reduces to recklessness, and is just a species of it.
We believe that even if we accept the premises of this reasoning, the conclusion does not
follow. For the defender of the relevance of intentions can agree that determining culpability for
those acting with purpose requires looking at both perceived risks and reasons, as Alexander and
Ferzan contend. But the question is not whether looking to these two factors is necessary for
determining culpability; the question is whether it is sufficient for doing so. Alexander and
Ferzan clearly believe that it is; but the reasoning provided in favor of this conclusion at most
supports the necessity claim, not the sufficiency one.
Is there more to be said in support of the sufficiency claim? It is possible that Alexander
and Ferzan simply think no more argument is needed.
For in the course of arguing that
culpability for acting with purpose depends on the two factors, risk and reason, they write:
Our culpability assessment evaluates the defendant’s choice to impose this risk for these
reasons. (38)
This way of putting the point suggests that the two factors are all there is to determining
culpability. Further, this seems intuitively plausible, for what else could there be? Let us assess
what might be seen as a straightforward and reasonable appeal to intuition.
In our view, whether their claim fully captures the factors of our culpability assessment is
not obvious, because it depends on what the object of the choice in question is and what the
reasons in question are reasons for. To see why, note that there is an ambiguity in “the agent’s
choice to impose this risk” and a parallel ambiguity in “the agent’s reasons”. On one reading,
13
call it the “de dicto” reading, the choice is to impose the risk, and the reasons are reasons to
impose the risk. On the “de re” reading, the choice is to behave in a way that happens to present
a risk, and the reasons are reasons to behave in that way. To put the point another way, the
imposition of risk is part of the intensional content of the choice and reasons on the first reading,
but not on the second. It is consistent with the second reading that the agent chooses to behave
in some way while knowing that a risk is presented, but the choice is not to impose the risk but
only to act in a certain way. As applied to the case of intentional harming, it makes sense that we
would evaluate the agent’s reasons for harming (understood in the de dicto way). Perhaps in the
case of a reflective actor who realizes that there are no guarantees in life, it might even make
sense to evaluate the agent’s reasons for choosing to impose the risk of harming, stilted though it
might sound in many situations. And in the case of the shooter aiming at the sparsely populated
square, it may make sense to evaluate the reasons for imposing the risk, since the existence of the
risk may be precisely what is attractive to the agent about the activity. But in other cases of
recklessness, this will not make sense. The agent might have no reasons at all for imposing a
risk; he may simply have reasons for engaging in behavior that happens to present a risk.
Consider a case in which an agent enjoys driving fast on joy rides. It is entirely conceivable that
imposing a risk, let alone harming, plays absolutely no motivational role whatsoever in his
behavior. He has no reasons for imposing a risk. But he does have a reason for doing something
that he may know imposes a risk. In this same sense, he also has a reason for doing something
that he may know will cause him to replace his tires earlier than he otherwise would. It would
sound odd to say that he has a reason for causing an earlier tire replacement. But we can say it if
we like, as long as we understand it to mean that he has a reason to do something which happens
to have that effect.
14
Now if Alexander and Ferzan are to be consistent, they must choose one reading of
“reasons for imposing a risk” or the other, and apply it to both recklessness without intention and
recklessness with intention. The problem for their reasoning is that seeing “imposing a risk” as
part of the intensional content of the choice and corresponding reasons fits naturally with
intentional harm or risk of harm (as in “he has reasons to see his enemy dead”), but not at all
with merely foreseen harm (as in “he has reasons to increase the risk that strangers die while he
is driving fast”). Part of the initial intuitive plausibility of the idea that acting with intention is
just a species of recklessness, then, seems to trade on this ambiguity. For we might agree that
the evaluation of acting with purpose depends on evaluating the choice to “impose this risk for
these reasons” (38), agree that recklessness, too, is “about both risks and reasons” (39), but deny
that we have a univocal sense of “reasons” in the cases, and so deny that the evaluation of
purposeful action aimed at harm is the same as the evaluation of reckless behavior. In sum, it
may be that there is nothing more to the evaluation of intentional (risk of) harm than choosing to
harm or risk harm for these reasons. But it would not follow that this is a species of recklessness
since recklessness is not an act that involves that sort of choice. Thus, we believe that the
argument is at best incomplete.
We find one other way that Alexander and Ferzan might support their claim to reduction.
After drawing their conclusion based on the reasoning already adduced, they elaborate on what
they take to be an advantage for the reductionist view they adopt, and perhaps this can be seen as
independent support for the sufficiency claim. That advantage is the ability of the view to be
flexible in not always associating intentional or purposeful behavior with a higher sentence, and
this flexibility helps explain our comparative intuitions about sentences. However, the advantage
identified takes us back to the kinds of claim we explored in section 1. But as we have seen, this
15
kind of reasoning needs to be evaluated alongside competing explanations that are equally
flexible and also find a principled role for intentions. We now turn to this positive project.
3. A Role for Intentions and the Revised Doctrine of Double Effect
As promised, we now defend the relevance of intentions to moral and criminal wrongdoing. But
we share this much with Hart and others moved by examples like the one he offers: it isn’t clear
to us that the intention to harm per se is defining of a morally—or legally—significant class, and
a fortiori that the intend harm/foresee harm distinction should be central.
To see this, a bit of history will be helpful. The Doctrine of Double Effect in its
traditional form is the most well known principle that makes use of intention in determining
moral permissibility:
(DDE-A) Agency in which harm arises, at least in part, from the agent’s intention to
harm either as an end or as a means to a good is always impermissible; agency in which
harm is merely foreseen is sometimes permissible.
This version of the principle is absolutist, enjoining us never to harm as an end or as a means to a
good end. But in this form, it has seemed to many to be too strong, as surely sometimes it is
permissible to cause a slight harm in order to achieve a massive good (for example, it is
permissible for me to step on your foot to defuse a bomb that would otherwise kill one hundred).
A more defensible version is non-absolutist:
16
(DDE-NA) The pursuit of a good tends to be more difficult to justify when a resulting
harm is intended as an end or as a means than when it is merely foreseen.
This version of the principle has the flexibility to handle a variety of the puzzles described
earlier. Consistent with the principle is recognition of equal culpability for intentional and
merely foreseen harm in some circumstances, as well as the idea that though it may be harder to
justify intentional harm all other things equal, in cases in which everything is not equal (e.g., one
is provoked), intentional harm may be less culpable than in a case of reckless behavior engaged
in just for fun.16 But the principle faces what we have concluded is an intractable challenge.
That challenge is provided by the so-called “closeness problem”. The problem is that one
can re-describe cases that seem to require the intention to harm as a means in such a way that the
intention is not really the intention to harm. For example, the terror bomber mentioned earlier
might plausibly be described as really only intending the appearance of the deaths of innocent
civilians; he needn’t intend the actual deaths for his ultimate plan to be realized. The two
intentions—to harm and to create the appearance of harm—are “close”, but not the same. Thus,
as long as one were sophisticated and creative, one could seemingly always avoid behavior in the
category disfavored by the DDE-NA. There have been numerous ingenious attempts to solve
this problem on behalf of the DDE-NA. But we believe that they cannot ultimately succeed.17
And the reason for this is important. It is that the most plausible rationale for a principle that
explains the moral difference between the cases does not fit well with the DDE-NA itself.
Two rationales have been offered in support of the DDE. One is the Kantian idea that
persons have a right not to be used as a means without their consent (see Quinn (1989)); the
other is the idea that there is something especially morally problematic about aiming at evil (see
17
Nagel (1986)). In the end, we believe that the “aim-at-evil” rationale does not ultimately capture
something of moral significance. Among the reasons is that “aim-at-evil” can be understood as
either aiming-at-bad or aiming-at-wrong.
If the former, then there simply does not seem
anything inherently bad about aiming at bad for a larger good; if the latter, then the principle will
contribute to an explanatory circularity in using the concept of “wrong” to explain why a certain
behavior is wrong (or harder to justify as right). Further, the “means” rationale seems to situate
the moral problem where it ought to be—in the wrong done to the patient, rather than in a
sullying of the mind of the agent. In other words, the “means” rationale is patient-centered,
whereas the “aim-at-evil” rationale is agent-centered. Intuitively, an agent-centered rationale
seems oddly self-indulgent in its locus of wrongdoing. We have argued elsewhere that the
“means” rationale also fits better with more of the cases thought to support the Doctrine of
Double Effect, and that it is itself an intuitive and plausible idea.18 But this rationale does not fit
well with the DDE-NA or with the idea that the key distinction is between intended harm and
foreseen harm. For one can use people in a way that brings them harm without going so far as to
intend the harm. One must have intentions with respect to them to use them, but one need not
have the specific intention to harm. All of these considerations taken together suggest a variation
on the DDE-NA. It requires making a distinction between two kinds of agency. Following
Quinn (1989), we distinguish between harmful direct and harmful indirect agency:
Harmful Direct Agency
Agency in which harm comes to some victims, at least in part, from the agent’s
deliberately involving them in something in order to further his purpose precisely by way
of their being so involved.
18
Harmful Indirect Agency
Agency in which harm comes to some victims, but in which either nothing in that way is
intended for the victims or what is so intended does not contribute to their harm. (343)
We are now in a position to state the principle that fits best with the independently more
plausible “means” rationale and that explains our intuitions about morally significant distinctions
between cases:
(DDE-R) In cases in which harm must come to some in order to achieve a good (and is
the least costly of possible harms necessary), the agent foresees the harm, and all other
things are equal, a stronger case is needed to justify harmful direct agency than to justify
equally harmful indirect agency.
We can see that this principle has the benefit of avoiding the problem of closeness because it
does not require that harm itself be intended for the behavior to be in the disfavored category.
Intentions are required, however, insofar as harmful direct agency entails deliberate involvement
by the agent of someone in a plan.19
With this principle and its rationale in mind, let us return to Hart’s pair of cases. In one, a
man pushes his companion off the cliff, and in the other a man shoots his companion instead,
both with the ultimate end of obtaining a diamond ring in the path on which they are walking.
After asking whether any intelligible theory of punishment could make sense of distinguishing
the cases, Hart (2008) goes on to speculate that what might have been thought to be behind the
distinction is the Doctrine of Double Effect:
19
The distinction seems to make its appeal to a feeling that to use a man’s death as a means
to some further end is a defilement of the agent: his will is thus identified with an evil
aim and it is somehow morally worse than the will of one who in the pursuit of the same
further end does something which, as the agent realizes, renders the man’s death
inevitable as a second effect. (127)
Hart immediately goes on to dismiss this suggestion, offering these last words on the subject
before moving on to another:
If this is the basis of the distinction we may well ask whether the law should in such cases
give recognition to it, especially where, as in the attempt case, recognition will lead to an
acquittal, except on a relatively trivial charge of assault. (127)
We have a great deal of sympathy with Hart’s conclusion. But we find that he has mixed the two
rationales associated with Doctrine of Double Effect here. If instead we focus only on the first—
the idea that one must not use others as means without their consent—along with the distinction
between direct and indirect harmful agency that it supports, then we will see that this distinction
is not applicable in Hart’s cases. For in both cases, we have direct harmful agency. In both
cases, the agent involves his companion in his plans precisely in a way such that harm comes to
him (though perhaps not as much harm as might have, as the cases have it). In both cases, the
agent uses his companion insofar as he involves him without his consent to advance the agent’s
end of obtaining the diamond.
20
Insofar as we ought not to use others without their consent, and insofar as we violate their
right not to be so used when we do, the reason why both pushing and shooting are wrong is the
same. Thus, what is crucial here is not the intend harm/foresee harm distinction, but the fact that
in both cases, harm comes to the companion because he is involved by the agent in the plan
without his consent. This feature of both cases makes the behavior harder to justify than if the
companion played no role in the plan, for example, and, given the circumstances, it seems safe to
conclude that it is in fact unjustified. This is not to say that intentions are not relevant. To the
contrary: the intentional involvement of the companion is essential. What is not essential is that
the harm be intended.
We do not mean to claim that the Revised Doctrine of Double Effect is the only principle
that gives intentions a role in determining permissibility.
But we believe that it marks a very
important and fundamental moral distinction. It allows us to agree that the intend-harm/foreseeharm distinction is not the key distinction, and thus, the near exclusive focus on distinguishing
attempts from recklessness is misplaced.
At the same time, the case for the relevance of
intentions to moral permissibility has only been strengthened.
IV. Intentions and Criminal Wrongdoing
Now we come to the question of whether intentions should have a central place in defining what
is legally impermissible, at least in the criminal law. We believe that there is good reason to
think that they should. We will set aside important general questions that intersect with this
question, such as how fine-grained laws ought to be, whose answers ultimately depend on a
number of factors. We focus here simply on the question whether there is good reason to include
intentions in the definitions of criminally prohibited behavior.
21
Answering this question requires consideration of the nature of the criminal law. This is
itself a rather large question, and we do not have the space here to consider a large number of
detailed arguments for and against various approaches to defining what is distinctive or defining
of criminal (il)legality. But given that different approaches will deliver different verdicts about
the relevance of intentions to criminal wrongdoing, it is important for us to identify what we take
to be the most plausible approach or range of approaches.
Moore (1997, 19-20) helpfully identifies three possible types of kinds into which the
criminal law might fall: nominal, natural, or functional. Nominal kinds (e.g., “statue”) constitute
a unity by convention, natural kinds (e.g., “gold”) are unified by sameness of essence or
structure, and functional kinds are unified by sameness of function or purpose. As Moore points
out, the criminal law is clearly not a nominal kind: it isn’t just that we have, by some accident of
history, agreed to call these forms of conduct, but not those forms of conduct, “crimes”.
Something more than the mere decision to classify under a common name underlies the decision
to identify certain sorts of conduct as criminal. And, as Moore also points out, the criminal law
is not unified by the kinds of sanction (namely, degrees of deprivation of life or liberty) that are
typically used to punish criminal activity as contrasted, say, with tortious behavior. For it is
always possible to ask why such-and-such sanction is appropriate for so-and-so activity, and
answering this question requires that one already have some conception of the function or
purpose of the activity’s criminalization.
So associated-sanction-type does not adequately
identify the essence of crime, and we are left to find the nature of crime in the function of the
criminal law.
Popular theories of the function of the criminal law largely mirror the popular theories of
the function of criminal punishment. This is no accident, of course, given that the very concept
22
of criminalization requires the readiness to impose sanctions for noncompliance.
Broadly
speaking, there are consequentialist theories and non-consequentialist theories of the function of
the criminal law. The most popular consequentialist theory, derived from the work of John
Stuart Mill, is that the function of the criminal law is the prevention of harm. There are two
versions of this theory, depending on whether the relevant harm to be prevented is conceived of
as harm to individuals or as harm to society. Another consequentialist theory is that the criminal
law by its nature aims at the establishment or maintenance of social cohesion. One popular nonconsequentialist theory, derived from the work of Immanuel Kant, is that the function of the
criminal law is to exact retribution, by punishing all and only those who deserve to be punished.
Another non-consequentialist theory, derived from the work of John Locke and other natural law
theorists, is that the criminal law by its nature aims at the protection of stringent rights (such as
the rights to life, health, security, liberty, and property).20
There are several reasons for thinking that it is not possible for the non-Lockean theories,
alone or in combination, to pick out all there is to the function of the criminal law. Consider, for
example, the Millian theory. (Similar arguments apply to the social cohesion theory.) If the
function of the criminal law were to prevent harm, then there would be a strong push in all or
most polities for criminalizing the refusal to rescue others at little or no cost to oneself. But
although the failure to rescue has been criminalized in a very small number of jurisdictions, there
is, generally speaking, little appetite for duty-of-rescue statutes. Another problem with the harmprevention theory is that in most jurisdictions many laws criminalize conduct that does not lead
to cognizable harm. For example, the act of funneling $1000 from a billionaire’s bank account
into one’s own bank account without her permission, when the billionaire would not miss the
money, is typically criminalized even though there is no cognizable harm to the billionaire.21
23
Consider now the Kantian theory. It might be held, as Moore (1997, 28) does, that the
aim of the criminal law is “the achievement of retributive justice”, that is, the punishment of
moral wrongdoing. But if this is the aim of the criminal law, then it is unclear why many very
clear and occasionally deeply harmful wrongs are not standardly criminalized.
Repeatedly
insulting someone, betraying a friend, cheating in love, or expelling someone from a very tightknit community out of spite or jealousy is morally wrong, and can result in the victim’s life
spiraling downwards into depression or suicide.
And yet no-one, so far as we know, has
suggested that these morally outrageous activities be criminalized (unless, as in the case of some
insults, they are likely to provoke imminent violence). Moore (1997, 186-187) claims that the
reason for this is that sometimes “other goods [such as liberty, fairness, equality, and utility]
override the achievement of retributive justice”. But this merely raises the question of why such
goods do not outweigh retributive justice in other cases that are typically criminalized, especially
when the criminalized conduct does not conduce to serious harm. For example, if the value of
liberty speaks so strongly in favor of shunning, or cheating, or betraying, even when the latter
activities are egregiously wrong, why does it not speak just as strongly in favor of stealing from
the super-rich to give to the poor, or trading on inside information in order to benefit a charity?22
The one theory that can explain the typical criminalization of some non-harmful conduct,
as well as the typical non-criminalization of some harmful or morally wrongful conduct, is the
(Lockean) view that at least one of the major functions of the criminal law is the protection of
rights. There are rights the violation of which would not cause harm (of any significance); on the
Lockean theory, but not on the Millian theory, the criminalization of such rights-violations is
understandable. There are harmful or seriously wrongful actions or omissions (e.g., refusals to
rescue) that do not violate rights; on the Lockean theory, but not on the Kantian theory, the non-
24
criminalization of such actions or omissions is understandable. On balance, then, there are
powerful reasons for thinking that the Lockean theory identifies at least one important function
of the criminal law, and thereby contributes to the identification of the nature of crime. This is
not to say that Millian or Kantian rationales for criminalization have no role to play in explaining
the nature of crime. Hybrid accounts of the function of the criminal law might even be easier to
justify than monistic accounts. What we emphasize here, and all we need for the purposes of our
argument, is that the rights-protecting function of the criminal law is one central and
ineliminable component of the proper account of its nature.
Return now to the Revised Doctrine of Double Effect. According to this doctrine, when
harm to some victims is foreseen and necessary (though the least costly of the harms necessary)
to achieve a good, then, all else being equal, it is more difficult to justify harmful direct agency
than it is to justify harmful indirect agency. We have argued that the best rationale for this
doctrine is the “means” rationale, according to which it is wrong to use others as means without
their consent. But, in previous work, we have also argued that the “means” rationale is itself
grounded in the fact that persons have a right not to be caught up, to their disadvantage, in the
harmful direct agency of others.23 If the nature of the criminal law is defined by its function, and
if the function of the criminal law is, at least in large part, to protect rights, then it follows
directly that, under the circumstances specified in the Revised Doctrine of Double Effect, it can
be a crime to engage in harmful direct agency. But harmful direct agency, by definition, requires
the intention to involve others in a plan to further one’s purposes precisely by way of their being
so involved. Therefore, certain kinds of intentions are directly relevant to criminal wrongdoing.
In saying this, we do not by any means take ourselves to have provided the final word on the
subject.
We are keenly aware that more argument might be needed to defend both the
25
importance of rights-protection to the nature and function of criminalization and the importance
of grounding the Revised Doctrine of Double Effect in the right not to be caught up, to one’s
detriment, in the harmful direct agency of another. But in the absence of good reasons to reject
these ideas, we conclude that there are powerful, principled reasons to treat the intention to
involve others in a plan to further one’s purposes precisely by way of their being so involved as
partly constitutive of some forms of criminal wrongdoing.
ACKNOWLEDGMENTS
We are very grateful to Alec Walen and Doug Husak for organizing the Workshop on
Deontology and the Criminal Law and for the opportunity to think and write about these issues.
We owe many thanks to Larry Alexander, Alex Guerrero, Heidi Hurd, Doug Husak, Matthew
Liao, Jeff McMahan, Jonathan Quong, Victor Tadros and Ralph Wedgwood for their questions
and suggestions, to all of the conference participants for thought-provoking discussion, and to
Alec Walen for very helpful written comments on the paper. We are grateful to Chirag Barai for
his exceptional research assistance. Finally, we are indebted to Michael Moore for his excellent
commentary.
26
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30
FOOTNOTES
1
For recent contributions to this debate, see Husak (2009), Walen (2009), and Chiao (2010). In
what follows we sometimes abbreviate “relevant in an important way” as “relevant.” In this we
follow at least some who argue that intentions are not relevant in a “basic” or “non-derivative”
way to moral permissibility (e.g., Scanlon (2008)). While we do not think it is obvious what the
distinction is between “derivative” and “non-derivative,” we will not focus on it unless important
to the argument. For more discussion of this point, see Nelkin (2011) and Nelkin & Rickless
(2014).
2
See Nelkin & Rickless (2014) and Nelkin & Rickless (forthcoming).
3
According to the Model Penal Code, reckless endangerment is treated as a misdemeanor with a
maximum sentence of one year (§210.2); an attempted crime is categorized in the same way as if
the attempt had succeeded, except in the case of an attempt of a capital crime or a first degree
felony, in which case it is treated as a second degree felony, receiving a sentence of 10 years
maximum as opposed to a sentence of up to life in prison (§5.05). In some states, the sentence
ranges for attempted murder are significantly higher than the sentence ranges in the Model Penal
Code itself. (For example, in New York, an attempt of a first degree murder is itself a Class A
felony with a minimum sentence of 20 years and a maximum of life in prison (§70.00 of the New
York Penal Code).)
31
4
According to the Model Penal Code, criminal homicide is murder when it is “committed
purposely or knowingly,” or when it is “committed recklessly under circumstances manifesting
extreme indifference to the value of human life” (§210.2). The Model Penal Code does not
distinguish between degrees of murder, and so treats reckless endangerment with extreme
indifference in the very same way as killing with intention where death is caused in both cases,
with the same sentence ranges. In some States such as New York, killing with recklessness and
a further condition such as extreme indifference is treated as second degree murder, where
second degree murder has a maximum sentence of life in prison and a minimum of either fifteen
or twenty years, the same range as in the case of first degree murder (§70.00 of the New York
Penal Code).
5
See Chiao (2010, 44), and Alexander & Ferzan (2009, 42 and 286).
6
We note here that we take the question of legal impermissibility or wrongdoing to be distinct
from that of legal responsibility or culpability, which is in turn associated with sentences. (The
distinction parallels the moral distinction between moral impermissibility and moral
blameworthiness.) While we sometimes find these different judgments made at different stages
in the process of determining legal guilt (e.g., insofar as conviction and sentencing are
separated), they are not always clearly separated (e.g., the insanity defense, which might be
thought to primarily concern responsibility, if successful, can affect judgments of guilt or
innocence).
In theory, justification and excuse correspond to the distinction between
permissibility and responsibility: justifications show that the agent did not act impermissibly,
while excuses show that, though the agent acted impermissibly, he or she was not responsible.
32
However, as Dressler (2006, 221) describes the situation, “justified and excused actors are
treated the same by the criminal courts: Each is acquitted of the offense and neither is punished
for her conduct. As a result, many courts, legislatures, and commentators are inattentive to the
inherent differences between the two classes of defenses.” Our focus here is on the claim that
intentions are relevant to criminal wrongdoing, but given that criminal responsibility depends on
wrongdoing, our argument has implications for responsibility.
7
See Nelkin (2012) for an overview of considerations, both practical and theoretical, in favor
and against the existence of moral luck, and some discussion of its relationship to legal luck.
8
Chiao (2010, 39) explicitly points out (and we agree) that the problem for the relevance of
intentions is distinct from that of outcome luck, but he does not ultimately make use of this
distinction in making his case against the relevance of intentions. For example, he seems to
require that the advocate of the relevance of intentions explain why intentions can “offset” the
absence of harm in generating the result that attempts (implying the intention to harm) should
have higher sentences than reckless endangerment (45-46). But this is to burden the advocate of
the relevance of intentions with having to validate all aspects of the law, including its current
incorporation of luck in outcomes.
9
Interestingly, as Yaffe (2010, 47-48) notes, in some other jurisdictions, the problem that arises
in the Jones case from Indiana’s statutes is sidestepped in a different way. For example, in
Colorado, “[a] person commits criminal attempt if, acting with the kind of culpability otherwise
required for commission of an offense, he engages in conduct constituting a substantial step
33
toward the commission of the offense” (Col. Rev. Stat. §18-2-101 (1)). As applied, this has the
consequence that as long as someone acts with whatever mental state would have sufficed for
manslaughter had the agent’s action resulted in harm, he is thereby guilty of attempted
manslaughter (see People v. Thomas (729 P.2d 972 (Colo. 1986))).
In effect, this is to
appropriate the term “attempt” and give it a non-standard meaning, but one that applies not only
to intention to harm, but also to willingness to behave in a way that risks harm as a side-effect.
This is one way to solve the problem of differential sentences in this case. Yaffe rejects this kind
of move because he argues that what attempts really are include intentions; and in order to figure
out the application of the Transfer Principle (“if a particular form of conduct is legitimately
criminalized, then the attempt to engage in that form of conduct is also legitimately
criminalized”) we need to work with the right understanding of what attempts are. We agree that
attempts as a class are not as inclusive as the class defined as “attempts” in the Colorado statute.
But we also believe that a more generic transfer principle is just as interesting as the one Yaffe
proposes, and it may turn out that in place of “attempt” in that principle, a more inclusive class of
conduct makes it true.
10
This term is sometimes associated with what Dressler (2006, §10.02) calls the “Culpability” or
“Broad” meaning of “Mens Rea”.
11
Compare the debate between Rachels (1975) and Foot (1984) over the moral distinction
between actions and omissions. Rachels argues that because in a single pair of cases in which
the only difference is that one acts and one omits, there is no difference in permissibility or
seriousness, there is no moral difference between action and omission. Foot argues persuasively,
34
in part by appeal to other examples, that there is a moral difference between the two, but one that
makes a difference in permissibility or badness under some, but not all, circumstances. As she
points out, the inference from “no difference between some instances of X and Y in moral
feature M” to “no moral difference of any kind between the types X and Y” is invalid. It is
important to note that Moore (2009, 48) recognizes the possibility of giving the general sort of
response we favor here, namely, that there can be a moral difference without its showing up as a
difference of culpability in all cases, and he takes it to constitute a logical possibility. But he
ultimately rejects the view, writing that he thinks that there is a difference in culpability in all
pairs of cases where one of the pair includes intended harm and the other reckless conduct that
results in harm (see also Moore 1997, 408-409). Further, he suggests that if one takes the view
that the moral difference does not always show up as a difference in culpability, it will be a
puzzle why the difference sometimes shows up as a difference in permissibility (2009, 48). We
believe that this puzzle can be answered. See note 16.
12
Some have argued that intentions are irrelevant for crimes of certain kinds (e.g., of the greatest
seriousness), but not necessarily that they should have no role. For example, Walen (2009, 7678), in appealing to Hart’s case, argues for a reduced, but not non-existent, role for intentions. In
particular, he argues that while it does not make sense to distinguish intention from certain
foresight in the case of killing, the presence of an intention can make a difference to culpability
when the odds of death go down. Suppose, for example, that two people engage in behavior that
has a 5% chance of killing someone unjustly, and in each case, no one is ultimately harmed. In
one case, the person acts negligently and in the other intending to kill. Walen suggests that the
one who intends is more culpable. He then goes on to argue, however, that though a criminal
35
system could fairly implement a distinction for some crimes and not for others, there is no
unfairness in not doing so, as long as we punish no one more than they deserve. We take issue
with this latter claim, because we recognize at least two dimensions of fairness. There is, as
Walen points out, fairness in distributing no more deprivation than is deserved. But there is also
fairness in treating those who are equally deserving equally. Tadros (2005, 235) similarly argues
that “[w]here we are dealing with a principal offence and the harm which the offence deals with
is very great, the distinction between direct and oblique intention [=certain foresight of harm] is
not sufficiently significant in moral terms to distinguish between offences”. However, he goes
on to conclude that in other contexts in which the stakes are not as high as they are in the case of
murder, the distinction may very well have moral significance (236).
13
Dolinko (2012, 98) partially bases his disagreement with Alexander and Ferzan on the
relevance of intentions on the fact that, in his view, Alexander and Ferzan have unfairly
burdened their opponents with the view that intending harm while imposing even a small risk is
always more culpable than risking harm without intending it when the risk is much greater. In
addressing the third puzzle, we hope to bring out our agreement that this view is not a burden a
defender of the relevance of intention bears.
14
See Reinhart (2008).
15
Robinson (1997, chapters 7 and 10) suggests that practical reasons take us in exactly the
opposite direction, arguing that a single prescription is actually easier for people to understand.
Interestingly, Chiao (2010, 49) acknowledges that for reasons of “fair labeling” we might want to
36
distinguish attempts from endangerment if they really are “the worst of the lot” and so deserving
of more punishment. But this comes in the context of a hypothetical that he seems to want to
reject, namely, that attempts really do have a worse moral character than do endangerments.
Further, Chiao (helpfully) distinguishes between the level of criminalization and the level of
punishment. The reason to criminalize is still the same for Chiao, even if an argument could be
made that attempts should be punished differently from endangerments.
16
Moore (2009, 47-51) defends what might be thought a variant of this principle. But as
mentioned in note 11, he takes it not that it is simply harder to justify intended harm, but also
that it is always more culpable, than merely foreseen harm. We believe that the concept of
difficulty of justification helps solve a puzzle that he sees for the type of view we defended
earlier. The fundamental moral difference in question is at the level of permissibility, not
culpability, and it is one factor among many in the calculus of justification. There is nothing
puzzling about its making a difference sometimes to the bottom-line question of whether an
action is sometimes permissible and sometimes not; and similarly, about its making a difference
sometimes to the degree of culpability and sometimes not. For difficulty of justification does not
map directly onto degree of blameworthiness. We note that Duff (1996, 368), and also possibly
Husak (2009, 64), among others, share Moore’s view that the difference in intention always
makes some difference, however small, to culpability. More recently, Duff (2007, 152) seems to
have distanced himself from this commitment, arguing only that the difference between intended
harm and foreseen harm is morally significant. In what follows, we explain why we think that
while all of these authors are right to see moral significance in intentions, they make a natural
mistake in the way they take them to be significant.
37
17
See Nelkin & Rickless (forthcoming).
18
See Nelkin & Rickless (2014). We also note here some recent attempts to defend alternative
principles that, like ours, appeal to the “means” rationale, but that, unlike ours, do not take this
rationale to have any implications for a role for intentions in moral principles. (See, for example,
Walen (2013) and Alexander (2014)). We believe that while these principles are intriguing, they
do not capture relevant cases as well as the DDE-NA, and that while they are correct in being
“patient-focused,” they err in not properly identifying the content of patients’ rights. A full
explication of our reasoning awaits another occasion (see Nelkin and Rickless (in preparation)).
19
It may not be obvious from the (DDE-R) principle itself that its rationale is patient-centered,
but, as we explain below, the rationale we favor appeals to patients’ rights, and in that sense is
patient-centered.
20
It has also been argued (e.g., by Duff (2001, 81)) that at least one of the functions of the
criminal law is to communicate community norms of conduct. But communication of these
norms is surely itself only conceived of as a means to some other purpose, whether this be the
actual conformity of conduct to norms, harm-prevention, respect for rights, or some combination
thereof. So any communicative theory of the function of the criminal law is parasitic on a theory
that identifies something more basic as the purpose of criminalization.
38
21
It might be argued, in reply, that the kind of harm that the criminal law is designed to prevent
is not harm to individuals, but harm to society. It might also be argued that only a harm-tosociety-prevention theory can explain why the killing of those who consent to be killed (or the
hazing of those who consent to be hazed) is generally criminalized (see LaFave (2010, 381)).
But such a theory is fraught with problems, not the least of which is that it is unclear how there
could be harm to a collective that does not reduce to harms experienced by its individual
members. And if the worry is not that individual acts of theft harm society as a whole, but rather
the idea that society would be harmed by the universalization of any maxim of theft, then it is
misplaced. For it is arguable that society would be much better off (by any measure of collective
well-being), at least in situations with a vast underclass and a small, lazy, unproductive upper
class luxuriating in inherited wealth, if the wealth of the rich were coercively funneled to the
poor. As for why the killing of those who consent to be killed (or the hazing of those who
consent to be hazed) is typically criminalized, alternative explanations abound. For example,
given that death is the most serious and irreversible harm, it makes sense to worry that evidence
of free, informed consent to being killed will never be sufficient to overcome the general
presumption that free, informed consent is lacking in such cases; and given the strong social
pressure exerted on those who consent to be hazed, it makes sense for the law to treat all
apparent consent to (serious) hazing as tacitly coerced, and hence unfree.
arguments against the harm-prevention theory, see Moore (1997, 29).
22
The latter case is a variant of an example provided by Dolinko (1991, 557).
23
See Nelkin & Rickless (2014).
39
For additional