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Intention & Double Effect: Theoretical and Practical Challenges

Notre Dame University, South Bend, IN | March 6-8, 2014

This Experts Meeting brought together a group of scholars from North America and Europe to discuss the role that intention, foresight, and proportionality play in theoretical and practical determinations of moral or legal fault.

In contemporary discourse, the notion of intention tends to be utilized in determinations of motive, and derivatively in determination of innocence and guilt or fault. It is worth noting, however, that the significance of the notion of intention is not restricted to discussions of moral or legal responsibility. To describe an action as intentional is to describe it as goal-oriented and (hence) in some way intelligible. Considered as such, intentional actions are not the sole province of rational agents—for it is undeniable that plants and non-human animals engage in goal-oriented behavior. Indeed, to the extent that the lives of both human and non-human animals are marked by a pursuit of similar ends or goals (e.g. nutrition, reproduction, pleasure etc.), one can understand the notion of an ‘intentional act’ as answering our need to be able to describe both human and non-human agency. This is why the notion of intention has been of special interest to theologians and philosophers working in the domain of metaphysics or philosophy of action; it provides them with a useful way of describing the causal relations that permeate the world.

Social Trends Institute - Intention & Double Effect: Theoretical and Practical Challenges in the Notre Dame UniversitySo, the notion of intention, while helpful in determining moral responsibility, is not conceptually dependent on notions of moral responsibility. We can speak of goal- oriented actions in non-human animals without ever wondering about their moral responsibility for engaging in such actions. By contrast, the notion of praise and blame (moral responsibility) does seem to be intrinsically linked with the everyday life of human beings. Perhaps the most promising evidence for this linkage is the fact that notions of praise and blame (moral responsibility) play some efficacious role in the regulation of human behavior. The actions of human beings, unlike non-human animals, can proceed from a concern to be praised or to avoid being blamed. Yet, even in the domain of praise and blame we encounter another distinction –that between moral and legal responsibility. One might not be legally at fault (or blameworthy) for a particular action, but nonetheless could still be morally blameworthy. Contrariwise, one could be legally at fault for an action, and not morally blameworthy.

Double Effect Experts MeetingThis social fact naturally gives rise to questions of the relationship between positive law and morality and how political authorities should frame positive law in light of that relationship. While not discounting the great difficulties involved in parsing the distinction between positive law and morality, we can at least note that the former is more contingent and relative in scope, since it is concerned with the flourishing of human beings as members of this or that political community rather than the flourishing of human beings as such. The aim of the legislator is practical and more constricted than the aim of the moral philosopher, which is speculative and entirely general. Given this difference in aim, one should not be surprised at some divergence in judgments of fault or blameworthiness between lawyers and moral philosophers.

For instance, legal regulations of warfare arise in response to the reality of warfare as well as to its perceived necessity for a host of contingent objectives. As a consequence, while military protocols or international law regulating the use of lethal force between states do aim to limit the scope of warfare, they are not, by definition, in the business of eliminating warfare through legislation. Lawmakers are limited in what they can prohibit precisely because they are only aiming to regulate already established practices of war and mitigate the social disutility they effect. Moral philosophers and theologians, by contrast, should ask whether or not war and its associated practices are commensurate with authentic human flourishing. In light of these facts, one might ask to what extent the distinct social functions of lawyers and moral philosophers influence the descriptions they give of particular human actions—that is, as intentional or unintentional. Put another way: do the distinct social functions of lawyers and moral philosophers condition the way they understand the moral principle that undergirds laws regulating the use of lethal force –mainly, that the intentional killing of an innocent person is malum in se? 

 

Principal Inquiries

  1. What role does intention play in the determination of legal or moral fault? What other factors play into the determination of legal or moral responsibility and how do they relate (either conceptually or in terms of priority) to the category of intention as a marker of legal or moral responsibility?
  2. What are the theoretical underpinnings of “double-effect” reasoning in moral and legal contexts? How helpful is such reasoning as a guideline for moral action? What are some of the continuities or discontinuities between “double-effect” reasoning and the legal categories of intention, distinction, or proportionality in domestic and international law
  3. What existing legal norms or precedents presuppose some version of the principle of double-effect and how has it been utilized in concrete cases? What are some of the positive and negative implications of the incorporation of double-effect reasoning into law and policymaking?
  4. Is intention an accompanying mental act of an agent’s action (like a motive), a constitutive feature of the agent’s action, or both? Is intention akin to a mental state, a guilty mind? What is the relationship between intention (however understood) and individual or collective (moral or legal) fault?
  5. How do current regimes of international or domestic criminal law and military protocol (especially with respect to targeting) track the moral prohibition of intentional killing of innocent persons? From a legal or moral perspective, what would it mean to kill an innocent person “intentionally” in contexts of war? How does the law treat the distinction between intentional and unintentional killing in therapeutic contexts?

Academic Leader

John P. O'Callaghan - University of Notre Dame

Speakers

Public Lecture:

Cardinal Francis George - Archbishop of Chicago
Mercy in the Teaching and Ministry of Pope Francis

Speakers:

Ken Pennington - Catholic University of America
Moderamen Inculpatae Tutelage: The Jurisprudence of a Justifiable Defense

Peter Clarke - University of Southampton
Legitimate Self-Defense in Medieval Theory and Practice

Stephen Brock - Pontifical University of Holy Cross
Per se Effects and the Scope of Intention

Kevin Flannery, SJ - Gregorian University
Double Effect and the Formulations of Justice

Craig Iffland - University of Notre Dame
Just and Unjust Killing

John O'Callaghan - University of Notre Dame
On How (Not) to Do Action Theory

Jennifer Frey - University of Chicago
Practical Knowledge and Double Effect

Thomas Cavanaugh - University of San Francisco
Abuses of Double Effect and a (Sound) Account of Duplex Effectus

Carl-Friedrich Stuckenberg - Universität of Bonn
The Role of ‘Intention’ in National and International Criminal Law

Mary Ellen O’Connell - University of Notre Dame
International Law and Morality Restricting the Use of Force

Joe Capizzi - Catholic University of America
Intentionality and Killing in War

Daniel H. Weiss - Cambridge University
Intention, Jurisdiction, and Killing in Classical Rabbinic Literature and in Thomas Aquinas

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