Why intentions matter to the criminal law

The intentions with which you acted matter to the law in a couple of different respects:

(1) The fact that D had a particular intention in acting as he did can make his conduct unlawful, when if he did not have that intention his actions would have been perfectly lawful. In such a case, we can say that D’s intention was wrong-making.

(2) The fact that D had a particular intention in acting as he did can make his conduct more seriously wrongful than it would have been had he not had that intention. In such a case, we can say that D’s intention was aggravating.

Wrong-making intentions

Consider the following two cases. In both cases, Patient is terminally and is in crippling pain.

Allowed: Dr Good gives Patient a dose of morphine that is sufficient to relieve his pain, realising at the same time that if Patient receives a dose of morphine of that quantity, then Patient’s death is likely to be significantly accelerated. There is no other means of relieving Patient’s pain. Patient subsequently dies from the dose of morphine that he received.

Not Allowed: Dr Bad gives Patient a dose of morphine of exactly the same quantity as that administered by Dr Good. But when Dr Bad administers the dose, he intends that the dose that Patient receives will kill him, thereby ending his torment. Patient subsequently dies from the dose of morphine that he received.

(It should be noted that there is actually no medical evidence that doses of morphine administered in sufficient quantities to relieve pain can actually accelerate people’s deaths; but that does not affect the discussion below.)

The only difference between these two situations is that in Allowed, Dr Good does not intend (in the sense of acting with a particular aim or purpose) to kill Patient, whereas in Not Allowed, Dr Bad intends to kill Patient.

In every other respect, the situations are identical. Both doctors act with the ultimate intention of relieving Patient’s pain (note that you can have more than one intention in a given situation because you can have more than one aim or purpose in acting in a particular way) – it’s just the means by which they intend to relieve Patient’s pain differ. And in terms of the doctor’s physical actions, they are identical: both administer the same dose of morphine, and both bring about Patient’s death at the same time.

So the only difference between the two situations is what is running through the doctors’ heads at the time they inject the morphine into Patient. But that difference is enough to make Dr Bad a murderer, while Dr Good is not guilty of any offence and is regarded as having acted perfectly legitimately, indeed laudably. Why does the difference in the two doctors’ intentions matter so much to the criminal law? We can consider a number of different explanations:

(1) Usurpation. Probably the most historically accurate explanation of why Dr Bad’s intentions make what he did unlawful is that in deciding to kill Patient, he is ‘playing God’ – usurping a decision (as to when Patient will die) that it was for God to make. However, in a secular society, such an explanation is regarded as illegitimate. However, is it possible to argue that Dr Bad’s decision to take Patient’s life was wrongful because it involved Dr Bad in usurping a decision that was for Patient to make? The answer must be ‘no’ because Dr Bad would still be regarded as murderer even if he was simply carrying out Patient’s instructions in injecting him with morphine. We have to look elsewhere for explanations as to why Dr Bad’s intentions make him a wrongdoer.

(2) Patients’ interests. Maybe we could argue that it is in the interests of patients for the law to say that their doctors are not allowed to act with the intention of killing them. The idea is that patients would do worse under any other alternative rule, such as ‘A doctor is allowed to act with the aim of killing one of his or her patients if conditions x, y and z are satisfied.’ Four arguments might be made for saying that patients would be worse under an alternative rule. (i) A slippery slope argument that once we drop the bar on doctors’ intentionally killing their patients by adopting an alternative rule, various institutional and political pressures will result in that alternative rule being gradually reformed and relaxed, and patients will do worse under those successor rules than they would have done had the original bar on intentional killing been retained. (ii) A pessimistic argument that while patients might do better under the alternative rule, if the alternative rule is applied correctly, human error means that the alternative rule will not be applied correctly, and patients will consequently do worse under the alternative rule than they would have done under the original rule which barred intentional killing under any circumstances. (iii) A psychological argument which observes that human beings do not cope well under circumstances of cognitive dissonance – where they are subjected to two conflicting emotions or reactions. In such a situation, human being resolve the dissonance by changing the way they look at the situation that is triggering their emotion or reaction so as to ‘mute’ one of the dissonant emotions or reaction. A doctor who intentionally kills a patient under an alternative rule might well experience a period of cognitive dissonance where his training makes him think ‘It will be a bad thing if this patient dies’ and the law (which gives effect to the alternative rule) makes him think ‘It is okay to bring this patient’s life to an end’. The doctor might well resolve this dissonance by beginning to downgrade the importance of saving his patients’ lives. In other words, he will become desensitised – with sinister implications for his other patients. So the doctor’s patients will get worse treatment from the doctor under the alternative rule than they would have done had the doctor been forbidden from ever intentionally killing a patient. (iv) A combined argument, which says – on the basis of points (ii) and (iii), above – that under an alternative rule, patients will become scared to consult their doctors and will be especially scared to go into hospitals, and will as a result do worse than they would have done had the bar on intentional killing of patients been retained.

I think that all of the arguments (i) – (iv), above, have something going for them, and help to justify the continued existence of a rule barring doctors from intentionally killing their patients, while at the same time doctors are allowed to do things that they know will result in their patients’ dying, so long as doing those things is a necessary and proportionate means of treating their patients’ conditions.

Aggravating intentions

Consider the following two situations. In both cases, Parents have a two-month old Baby.

Useless: Parents neglect to feed Baby because they are spending all their money on drugs; as a result, Baby dies.

Evil: Parents neglect to feed Baby because they resent having to spend any money on her, and hope that she dies; Baby does eventually die.

Parents will be guilty of gross negligence manslaughter in Useless; while they will be guilty of murder in Evil. This is because Parents acted (or, more accurately, failed to act in breach of their duty to feed Baby) with the aim or purpose of killing Baby in Evil, while they had no such aim or purpose in Useless. (I disregard the possibility that Parents might be ‘held’ to have had an intent to kill in Useless under Woollin, on the basis that they foresaw that death was virtually certain to occur. If this troubles anyone, just assume that Parents were so high all the time in Useless that they thought Baby wouldn’t die even if he wasn’t given anything to eat.) Why does the fact that Parents had an intent to kill in Evil make their offence much more serious than the offence committed by the Parents in Useless, who had no such intent? A couple of different explanations can be given:

(1) Character. The Parents in Evil have worse characters than the Parents in Useless. The Parents in Useless did not care enough about the value of their Baby’s life. The Parents in Evil did not care at all about the value of their Baby’s life. This difference in character may lead us to want to stigmatise the Parents in Evil and the Parents in Useless in different ways – by giving them different names (murderers in Evil; manslaughterers in Useless) – so  that people will know what sort of characters they are dealing with when they come across them.

(2) Danger. Because the Parents in Evil have worse characters than the Parents in Useless, the Parents in Evil are more dangerous than the Parents in Useless. The Parents in Evil have proven themselves willing to kill other people, when the Parents in Useless have not provided any evidence that they are willing to do the same. Given this difference in dangerousness, we might want to lock up the Parents in Evil for longer than the Parents in Useless, both to prevent the Parents in Evil doing any more harm to anyone else, and to provide greater opportunities for their rehabilitation.

Maths for Lawyers

Click on the link below:

Maths for Contract Lawyers

to access part of a bigger project I am working on (called ‘Maths for Lawyers’) which may or may not become a book one day. The excerpt above is intended to help contract law students understand the maths behind working out what remedies the victim of a breach of contract is entitled to, as well as various other related subjects.

Roman Law Timelines

In 2012-13, I set my first year students at Pembroke College, Cambridge a competition to create a Roman Law timeline, that would enable them to keep track of all the historical and legal developments that they would have to become familiar with in studying Civil Law I for Part IA of the Cambridge Law Tripos. Click on the links below to access the two winning entries, by Ben Harrison and Mairi Innes, reproduced here with their permission, and subject to their copyright:

Ben Harrison Timeline 1

Ben Harrison Timeline 1

Ben Harrison Timeline 2

Ben Harrison Timeline 2

Ben Harrison Timeline 3

Ben Harrison Timeline 3

Mairi Innes Timeline


It seems to me that there are two big objections that can be made to prisons being run by private companies:

(1) The law is very averse to someone putting themselves in a position where it is in their interests for someone to break the law. This is part of the reason why the law objects to people inserting penalty clauses in contracts – the presence of a penalty clause gives a party to a contract a reason to hope that the other party will breach the contract. But if private companies are allowed to run prisons, they will then have a very substantial commercial interest in people breaking the law – if people don’t break the law, they go out of business. This interest that private companies that run prisons have in people breaking the law is personally corrupting, and potentially anti-social as it means private companies could make more money encouraging their prisoners to pursue lives of crime than they could (through incentive payments from the government) by rehabilitating their prisoners. (No company would ever want to invent a light bulb that never breaks, or a razor that never gets blunt.)

(2) Equity categorises certain categories of people as ‘fiduciaries’ and prevents them making a profit from the decisions that they make where the prospect of making a gain for themselves might have an adverse effect on their ability to properly discharge their duties. So, for example, a trustee who invests money for a client will not be allowed to invest that money in companies that the trustee owns (thereby boosting the share price of the trustee’s companies) because if he were allowed to do so, the prospect of the gain he would personally make by investing the trust money in his companies would subconsciously tempt him to think that investing the money in his companies would be in his client’s best interests when it might actually be a disastrous investment. So in order to make sure that the trustee does a good job of investing his client’s money, the law requires him not to invest the money in any companies in which he has an interest. It seems to me strongly arguable that those who run our prisons should be categorised as ‘fiduciaries’ and required not to make a profit from the way they run the prisons. If they were allowed to make a profit from the way they ran a particular prison, there would be a too much of a danger of their being subconsciously influenced by the gains they might make for themselves into thinking that ‘we only need a certain number of warders on duty at night’ or ‘the food supplied by Slop Co [the lowest bidder for the catering contract] is perfectly adequate for the inmates’ or ‘we only need to provide two computers in the prison library’. Of course, there might be ways of dealing with these temptations, if acted upon – for example, regular independent inspections by regulators empowered to order the prison to come up to certain standards. But such inspections would only be necessary because we have created a problem in the first place by allowing private companies to run prisons, and would not necessarily prove effective at solving the problem, as independent inspectors cannot see everything and might lose their independence by coming into contact with the people they are supposed to regulate.