Intention in Criminal Law: The Challenge from Non‐Observational Knowledge

• Published date: 01 December 2017
• Author: Bebhinn Donnelly‐Lazarov
• Date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12187

Intention in Criminal Law:

The Challenge from Non-Observational

Knowledge

BEBHINN DONNELLY-LAZAROV

Abstract. Intention is at the heart of criminal law. If it is not the mens rea require-

ment found most often in offences, it is still t he standard against w hich other

grades of fault tend relatively to be judged. It has generated much controversy,

as the crucial ques tion, “Did the defen dant intend X?” is res istant to clear

answers. This pape r argues that intenti on-questions are difficult because int en-

tion is not the thing law takes it to be: Importantly, contrary to law’s assump-

tions, it is neither a state of mind nor is it connected in an exclusive manner to

the reasons for which we act.

1. Introduction

Intention is at the heart of criminal law. If it is not the mens rea requirement found

most often in offences, it is still the standard against which other grades of fault

tend relatively to be judged. The concept has generated much controversy, as the

crucial question, “Did the defendant intend X?” proves strongly resistant to clear

answers. This paper makes the case that the intention-question is a difficult one

because intention is not the kind of thing law takes it to be. Most importantly, and

contrary to law’s assumptions, it is neither a state of mind, nor is it connected in an

exclusive manner to the reasons for which we act.

What is intention like? An answer to this question must have something to say

about action. Law’s prohibitions are concerned with intentional actions, with inten-

tions that are acted on, not with those that stay “within” us. Notice that even our

pure, pre-active intentions are about action: We act intentionally and we intend to

act. As a result, the need to focus on intention in its relation to action is a concep-

tual one: It is not a necessity that simply derives from the contingencies of criminal

law practice.

The paper proposes that intention and action can be conceived of (and interre-

late) in the following terms: Our actions are constituted by the objects of purpose-

ful, interacting human capacities; we know our actions, thus constituted, non-

observationally; “intention” is the concept we have for this knowing; there is noth-

ing to intention other than this. These claims present a fundamental challenge to

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C2017 The Author. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 4 December 2017 (451–470)

law’s conceptions of action and intention. The paper makes the challenge and con-

siders how law might respond.

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2. Dominant Accounts of Intentional Action: Philosophy and Criminal

Law Practice

Law’s understanding of intentional action has normative authority: This is to say

that the legal meaning of the term is generated by the practice itself, and, so, the

decision as to whether a defendant intended to kill (say) is informed by law alone.

Its conceptions of our world may be erroneous, but, with them, and from them,

law rules.

Philosophy scrutinises phenomena like intentional action in a way that law can-

not, offering the kind of intellectual authority that the practice lacks. As a result, if

we wish to know whether law really understands the essence of human behaviour,

it is to philosophy that we must turn. Should it turn out that law’s terse commit-

ments about intentional action mirror philosophy’s extensively elaborated commit-

ments, any flaws in the latter will certainly disclose flaws in the former. In the case

of intentional action, this is the relationship that holds: Law’s concept of intentional

action is largely in keeping with paradigmatic philosophical approaches (that now

face fundamental scrutiny). Where these are flawed, so must law be.

2.1. Philosophy’s Commitments about Intention

In dominant accounts of intention, two commitments are taken to be

uncontroversial:

(a) Intentions do not need actions: I can intend now to make pancakes at the

weekend. This intention is pure: It does not require me to be doing anything

in advance of the end that I set.

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(b) These pure intentions can be contrasted with intentional actions themselves.

These do involve action. When I intentionally make pancakes, I am certainly

acting.

Clearly, both (a) and (b) involve intention; I intend to make pancakes before

doing so and I intend to make pancakes in doing so. It follows that the phenomenon

of intention should be observable in (a) and (b) alike. (If not, there must two differ-

ent kinds of phenomena entirely.) There is considerable disagreement about how

this can be, about what this thing in common is (see Bratman 1984). Moreover, the

need to resolve the matter has become so central to theories of intention that the

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The account of intentionto be proposed is broadly Anscombian, drawing on but significantly

extendingaspects of her account of intention, a positionthat is witnessing a welcome renewalof

interest bothwithin and beyond the philosophyof action.

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It should be noted that criminal law theory cannot comfortably jettison pure intention. Gard-

ner and Jung (1991)wonder why Antony Duff addressesthe category at all since it is not a phe-

nomenon that the practiceencounters. This should not matter; if pure intention is “there” to be

explained itmay very well give character to intention in its other manifestations; if it isnot there

to be explained then findingout this much is likely to be indispensable to an understanding of

intention generally.

452 Bebhinn Donnelly-Lazarov

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