Intention is a central concept in our system of criminal liability. And in recent years it has been much discussed, both by lawyers and philosophers. However, there remain disagreements, and some unclarity. My purpose in this paper is to examine, and propose solutions to, the main problems concerning the concept of intention in the criminal law.

Many political and moral theorists believe conceptual arguments about the nature of liberty, authority or power cannot be resolved independently of background normative theories. When this view is combined with the assumption that normative disputes are in some sense irresolvable—because, for example, reason fails us here—we have a partial account of the significance of controversy in moral and political argument. Controversy is significant because it is a manifestation of a deeper truth about reason and value. By contrast many would deny that controversy over such matters tells us anything important—it tells us merely what we already know, that disputants are stupid, self interested, in the thrall of an ideology, or informationally deprived.

In an Icelandic saga there is a story of Torgeir, a young man of high rank, who one day as part of his morning activities cut off the head of a serf. Asked why he did this, answered—and it sounds better in Norwegian—“Fordi han sto sa lagelig til for hugg”: because he stood there so well suited for a cut. That was the end of the story.

One episode, yet representative both for Viking-time and later epochs. Up until 1766 it was a matter of course that people of high rank received less severe punishments than those of low rank. Fragments of this basic principle are still preserved in the Norwegian constitution where it is explicitly stated the King cannot be blamed or brought before any court of law.

Criminal law defences may be classified as either “justification” or “excuse”. A justification negates the wrongfulness of the conduct. The following are considered justifications: law enforcement, self-defence and lesser evils. An excuse, on the other hand, negates only the culpability of the actor for wrongful conduct. Under special circumstances, such as extreme pressure, it is considered unfair to blame the actor for the violation of the norm. Insanity and duress are typical excuses.

Writing on punishment can be a punishing experience. We face two kinds of problems, each threatening to make penal reflection a futile exercise. Primarily, there is a body of research and literature which might be called hyper-critical; this research points to the weaknesses of all theories of punishment but fails to replace them by an adequate theory, either because it cannot solve the problems which it raises or because it does not want to, punishment being seen as a concept that is so fraught with difficulties of all kinds that it ought to be altogether rejected. There is, on the other hand, a second trend in the literature, which is more positive and which offers a new theory of punishment. However, what is gained at the level of theory is lost at the level of application: not only is current penal practice unrelated to the proposed ideal, but its proponents do not see at present how we should proceed in adjusting practice to achieve this ideal.

The first ten Amendments to the United States Constitution received final ratification on December 15, 1791. This year, then, marks the bicentenary of what is arguably the single most significant political event in my country’s history—the adoption of a Bill of Rights. So I write this essay in a celebratory spirit, to honor a most distinguished and influential U.S. Supreme Court Justice. Of the recently retired William J. Brennan, Jr.’s many outstanding contributions, his tireless promotion of human dignity as a preeminent legal principle stands out. Government should maintain and protect the dignity of those it serves, that the Constitution and Bill of Rights constitute nothing less than “a bold commitment by a people to the ideal of libertarian dignity protected through law”, are certainly attractive, even noble ideas. Yet, like so many abstract concepts, they are exasperatingly obscure.

Historically, discussions of the morality of punishment have been dominated by the conviction that punishment is an inescapable feature of social life. Thus it is widely believed that laws will not be respected unless those who break them are punished. Yet another view deeply entrenched is that avoiding or mitigating pain and suffering ought to be a fundamental goal of civilized societies. These two convictions are in obvious tension. Punishment requires the deliberated infliction of pain or suffering. How then can it be justified?

The proper jurisdiction of lawful authority has always been a central issue in Anglo-American jurisprudence. English and American legal institutions both grew out of a seventeenth-century British culture that valued liberty, and sought to defend it legally by carefully defining the scope and purpose of lawful authority. Yet after 1776 the two nations diverged. This paper will evaluate English conceptions of legal authority from an American perspective. My thesis is that English lawyers discuss the authority of law in language developed to counter seventeenth- and eighteenth-century European revolutionary thought. British reactions to the English, American and French Republics preserved Hobbesian conceptions of legal authority that still influence common-law jurisprudence today, and mislead English-speaking lawyers who have adopted British terminology. I will suggest a more precise vocabulary, and use it to criticise certain positivist conceptions of the authority of law.

Punishment consists in doing things to people which are expectedly undesirable from the point of view of the recipients. These have typically included the infliction of physical pain, deprivation of life itself, and, for long the standard form, deprivation of liberty of movement, in the form of a period in jail. We have a fairly strong prima facie duty to refrain from inflicting such things on anyone. (Some might even think that we have a rigorous, or “absolute” duty thus to refrain, but that would make punishment necessarily unjustifiable.) But if we accept any such duty—as we all do—then the question of justification for punishment obviously arises, for clearly we need to justify the doing of what is normally wrong. We need to show why certain kinds of non-normal behavior call for punishment.

My lack of training in the discipline of academic philosophy will be evident in the following comments on the Conference papers. Nonetheless, having been associated with criminal justice research and policy over many years, my thinking may serve as an example of what philosophers have to put up with if they attempt to communicate with persons of my background.

Are justice and mercy incompatible with each other, so that it is unjust for a judge to be merciful? In a recent article Jeffrie Murphy generates and explores some interesting paradoxes concerning the virtue (or supposed virtue) of mercy. Murphy argues for a skeptical position concerning mercy in relation to criminal justice: mercy has no place in the sentencing decisions of judges

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

The ideology of treatment, as well as confidence in the special preventive effects of punishment, was severely attacked in the late 1960’s. In Scandinavia, this criticism quickly led to a series of legislative reforms. The first target was the system of preventive detention. The lack of legal security was considered to be most obvious flaw here. After the reforms concerning the use of preventive measures—for example, for dangerous offenders—were implemented, attention shifted to the structure of the whole penal system. From the mid 70’s on, the Finnish criminal justice system was reformed in a “neo-classical” spirit. Instead of individualization and rehabilitation, the emphasis is now placed on legal security and the principles of proportionality, predictability, and equality. These ideas and principles received their most manifest expression in the 1976 reform of sentencing provisions (Chapter 6 in the Finnish penal code).

In the course of evolving an extensive theory of natural law, John Finnis declares that certain goods are self-evident. Among these basic values, the good of knowledge lends itself to a special argument—an argument directed against people who assail the ranking of knowledge as a good. Finnis maintains that anyone who seriously denies the goodness of truth or knowledge must contradict herself flagrantly in the act of putting forth her position. Skeptics therefore exclude themselves from participating genuinely in a debate over truth’s value. Although their self-disqualification never tout seul establishes the goodness of knowledge, it “should persuade the sceptic[s] to cut short idle doubting” (NLNR at 75; see also “Scepticism” at 267). Or so Finnis believes.

Women have largely been ignored in the criminal justice system and in discussions of sentencing in Canada. Existing theories of punishment and the underlying philosophy of sentencing have developed from essentially patriarchal models. As a result, the existing theory and the practice of sentencing in Canada is flawed both by the absence of a feminist theoretical analysis and the absence of a practical appreciation of issues which impact on sentencing female offenders. The framework of accepted sentencing theory and practice has been built upon particular conceptions about women which reinforce the oppression of women. This is evident when one focuses on the reality of the sentence imposed rather than on mere compliance with equal treatment.