Harm and Culpability

By A. P. Simester; A. T. H. Smith | Go to book overview

4
Why Distinguish Intention from Foresight?

A. P. Simester*

Philosophers conventionally distinguish between intentional actions and actions which are merely foreseen. The criminal law endorses that distinction, and applies a condition of unreasonableness before any foreseen action is declared reckless. Why? If we search the law journals for a rationale, our quest is likely to be in vain -- a very odd situation indeed, given that the difference is so integral to our legal system. Perhaps there is so little discussion because lawyers simply assume the truth of the view explicated recently by Duff,1 that ceteris paribus intentional wrongdoing is inherently more culpable than advertently-risked wrongdoing (though I have not seen any argument to show, even were that view correct, why unreasonableness might therefore be a condition of culpability specifically for advertent wrongdoings). But in this essay I propose to deny the standard view that intention has moral primacy. Both intended and foreseen wrongful actions are chosen, and merit blame because their doing reflects bad deliberative preferences.

Which is not to say that intentional and advertent wrongdoing should be undifferentiated. I shall suggest that the difference between the two cases is not to be measured in degrees of culpability, but is instead worked out in terms of what actions may legitimately be invoked to justify wrongdoing. The central moral distinction between intended actions and those merely foreseen is that the foreseen do not lend any favourable weight to the justification of the intended. In essence, one cannot justify one's intentional doing of a bad action by appeal to the reasonableness of one's behaviour (and, in particular, by appeal to advertent good actions); whereas one may do so to justify advertent bad actions.

____________________
*
I am grateful for comments from participants in the Cambridge seminars, and to Peter Glazebrook, Jeremy Horder, Grant Lamond, Joseph Raz, and Bob Sullivan for their written remarks.
1
Intention, Agency and Criminal Culpability ( Oxford, 1990), 113.

-71-

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