Tuesday, January 6, 2009


During law school, I entered an intellectual cocoon. For more than eight hours every day for three years, I exhaustively learned legal doctrine. At the time, I thought this was an immense accomplishment. I still feel some pride for having persevered through the curriculum, if for no other reason than to provide me with the mental discipline I need to methodically sift through arguments. But unlike before, I no longer put my undivided faith in law to answer questions. While studying law, I had very little exposure to other disciplines. Because I spent so much time reading judges’ words, I slowly began to think that judges knew everything. How wrong I was.

It took many months for me to “temper” my legal knowledge with insights from other fields. I have not forgotten the law. Far from it: I feel that I have situated my legal knowledge within the overall context of Western thought. Law fits into the immense historical discourse of our civilization, whether economic, social, moral or religious. Its doctrines make sense within that discourse, yet in law school we simply learned the legal doctrines. We did not learn about the historical and social context in which they developed. We learned what elements constitute burglary or negligence. We learned how to admit evidence in court. We learned how to form a corporation. But we did not learn how any of these things fit into the overall structure of our Western world.

Legal knowledge has a dangerous capacity: It can narrow the mind. It is easy to understand why this happens. We inhabit a world in which property and money seem to answer all our questions. We seek to make our bodies comfortable by obtaining things. The law prescribes rules and procedures for obtaining property and money, and for adjudicating the inevitable disputes that will arise over them. Governmental force backs these legal rules and procedures. When someone loses a legal case, the government forces him to pay money or surrender his bodily liberty. That is tremendous power. To that extent, it is easy to believe that by studying law, you are learning the only knowledge that “really matters.” After all, if the doctrines you learn can force someone to pay money or go to prison, why learn anything else? This explains why many lawyers have a smug attitude: They know things that can take away your property or bodily liberty. You don’t. So that makes them “better than the average man.”

Yet lawyers do not know everything. In fact, they know remarkably little. True, learning legal doctrine is an immense task, and I certainly do not fault anyone for undertaking it. But I have learned that law is merely one facet in a significantly more complex social construct. As mentioned, law derives its influence from its power to tangibly affect the body and property. After law school, I recognized that these are not the only things that matter in life. They are undoubtedly important (no one wants to be tortured, imprisoned or homeless), but they do not prescribe the limits of human existence. Rather, human existence involves individuals with individual thoughts, impressions and beliefs. Taken together, individuals comprise a society under laws. They depend on law to protect their property and to ensure their bodily safety. Yet the law has virtually nothing to do with their individual beliefs. In other words, the law has no power over the mind, apart from its power to induce people to refrain from actions that will result in punishment or a price.

Martin Luther’s treatise On Governmental Authority (1523) vibrantly illustrates the law’s limits. Luther’s essay arguably lays the groundwork for American notions concerning the separation between church and State, but it goes even further. It also delineates the limits of legal authority. Luther writes: “[T]he soul is not under the authority of Caesar; he can neither teach it nor guide it, neither kill it nor give it life, neither bind it nor loose it, neither judge it nor condemn it, neither hold it fast nor release it.” He later says that we owe the law our “obedience in body and property; command me within the limits of your authority and I will obey. But if you command me to believe or get rid of certain books, I will not obey; for then you are a tyrant and overreach yourself.”

Luther wrote about spiritual freedom. When he says “the soul,” he refers most directly to Christian faith and belief. But he means more than that. “The soul” refers to individual thought, conscience and impression. Luther draws a distinction between “the soul,” which cannot answer to the law, and “body and property,” which must answer to the law. This distinction makes perfect sense in light of my legal studies. Virtually all civil law dwells upon relationships over property, while all criminal law dwells upon bodily actions giving rise to bodily punishments. The law touches body and property, just as Luther explained. What about the soul? Does the law touch the soul, as well?

I have been grappling with this question recently. The more I think about it, the more I feel that the law oversteps its authority when it judges human thought, motivation and belief. After all, why should a person suffer greater punishment in body or property because the law finds fault in his soul? Are not the two spheres entirely distinct from one another? I think they are, but here the law engages in some schizophrenic discourse. In a word, the law does punish people more when it judges their intentions “bad” or “blameworthy” than it does when it judges them “innocent.”

Generally speaking, the criminal law inflicts harsher penalties on people when they act with “bad intent.” The word “intent” litters criminal codes. At the same time, the criminal law does not punish “mere thought.” The criminal law will only punish the body when “mere thought” crosses into physical action. In other words, a physical action may yield precisely the same result, yet the criminal’s mental state determines whether he suffers mild imprisonment or a death sentence. A farmer may leave a tractor running by mistake, allowing it to speed down a hill and kill someone crossing the street. Or he may know someone with a life insurance policy naming him as beneficiary will be crossing the street at a certain time, so he arranges for the tractor to go out of control at exactly the right moment to kill him. In the first case, the defendant may only go to prison for a year. In the second, he could be executed. Why? Because in the second case, the law judges the defendant’s “intention” to be “worse” than in the first.

What does it actually mean to “intend” something? Lawyers throw the word around all the time. Most likely they have an idea what it means, without knowing for sure what the concept involves. In most relevant part, the dictionary tells us that “intent” derives from the Latin verb intendere,” meaning to “stretch out for” or “aim at.” Webster’s New College Dictionary (4th Ed.). In English, it means “to have in mind as a purpose or plan.” Id. at Meaning 1. In essence, “intend” is purposive; it involves an individual’s mental goal or aim. It describes what the individual “aims at” in a particular action. And it begs an important inquiry: We must closely examine an individual’s mind to determine his precise “aim” at a unique moment in his life. We must ask: “What was this man’s purpose?”

Is this what the law should do? Can anyone other than the individual discover the contents of his own mind? Is not the mind analogous to the “soul” that Luther described in his treatise? If it is, the law has no authority to pass judgment upon it. Nonetheless, the law routinely evaluates individuals’ thoughts, motivations and even beliefs when determining whether they “intended” certain results. These inquiries have nothing to do with body or property, yet they can greatly affect the defendant’s body and property.

In my view, the law drifts into questionable territory when it does this. If anything, the law simply yields to intuitive moral outrage when it more severely punishes an “intentional killing” as opposed to a “careless” one. Human beings recoil when they know someone “deviously” commits a crime. They do not like it. It repels them on a basic, moral level. Morality effectively centers on the question whether an action arouses “disgust” in an “average member of society,” and when someone has a carefully constructed plan to kill another, it arouses more “disgust” in that “average person” than it would if the defendant was simply “careless” in allowing another to die. The law responds to society’s moral baseline. Legislatures incorporate their notions of disgust and outrage into their criminal codes. As a result, the law passes judgment on men’s minds. It punishes what society labels “bad thinking.” As a constitutional matter, people are essentially allowed to pass whatever laws they see fit to advance their interests. But as a philosophical matter, it is debatable whether the law has authority to pass judgment on men’s minds.

Criminal law is not the only legal field in which “intention” plays a substantial role. Even constitutional law makes distinctions based upon individuals’ mental aims. These distinctions have special resonance in cases involving racial discrimination. Over the last century, the United States has attempted—through law—to redress historical discrimination against African-Americans. Although these “legal methods” have proven unwieldy in practice, they at least represent a principled constitutional recognition that African-Americans suffered dreadfully unfair treatment as slaves. And that unfair treatment effectively eviscerated their opportunity to enjoy the benefits of American citizenship.

Congress granted African-Americans the right to sue the government for racial discrimination under the Civil Rights Act of 1871 (now 42 U.S.C. § 1983). To prove their cases, plaintiffs must prove that state actors violated the Equal Protection Clause housed in the Fourteenth Amendment (State) or implied in the Fifth Amendment (Federal). The United States Supreme Court, however, made this undertaking quite difficult by requiring plaintiffs to prove that state actors intended to discriminate against them on racial grounds. In Washington v. Davis, 426 U.S. 229 (1976), for example, the Supreme Court refused to find that the Washington police department discriminated against black police applicants even though they failed an entry test in much larger numbers than their white counterparts. The Court said that the test was “neutral in application,” and the plaintiffs failed to prove that the police force intended to discriminate against black applicants. The mere fact that the test had a “disproportionate impact” on black applicants did not reveal “invidious,” “intentional state action” to deny blacks the right to serve as police officers. Quoting an earlier case, the Court reasoned: “A purpose to discriminate must be present.” The Court allowed the possibility that the “totality of the facts” may permit an inference that state actors “intended” to discriminate, but it refused to make the inference.

What is so significant about this? Again, it shows the law deeply investigating men’s minds. It reflects a judicial tendency to label certain actions “good,” “bad” or “neutral” depending upon the mental state that accompanies them. In the discrimination cases, we see another moral judgment: That it is worse to intentionally discriminate than to incidentally discriminate. It is more morally wrong to have “invidious” mental attitudes toward a race than it is to merely exclude them through “neutral measures.” Interestingly, the Supreme Court revealed a major problem with all legal discourse involving individual intention: It is profoundly difficult to prove. After all, we cannot see the contents of a man’s mind. In law, proof depends on the senses, and there is no direct way to perceive another person’s mind. He can only convey what he intends through language, and even then he may not be telling the truth. Most often, the law must infer intent from external, perceptible facts. It is an imperfect enterprise at best. And there is always more than one way to interpret a physical action.

I venture that proving intent is difficult because intent does not really fit in the pantheon of legal subject matter. As Luther said, the law best applies to body and property. We can see the body and its physical actions. We can see property, or at least physically account for it. But intention is generally invisible. It lives within the mind. It is individual. While intention certainly motivates bodily activity relevant to the law, intention itself does not fit easily in legal discourse. And it baits the law to roam into territory where it traditionally has no place: Individual outlook, belief, thought and personality.

We punish men’s minds because it feels good. If we think we see a no-good backstabber who has bad intentions, we focus our outrage on him, even if we must assume what motivated him. We have precious little power to understand an individual’s unique mental processes. Yet morality compels us to try to understand them as much as we can. In a way, human beings relish feeling disgusted so they can train their anger on the deviant. This is the nature of moral judgment. And it is also the root of all legal preoccupation with intent.


SteveW said...

I had an entirely different law school experience - probably in one part from some exceptionally philosophically and historically grounded professorst, and in a second part because I went to law school 15 years out of high school.

There are at least two angles to the "intention" thing that I think are justified in the law, although perhaps not practical to apply.

First, if the law does not feel "just" then people will be inclined to operate outside of the law. Therefore, if there is a human compulsion to punish someone to a greater degree, the law must acknowledge this to at least some degree. Court cases that do not result in "just" outcomes degrade the ability of the legal system to operate as a legitimate authority.

Second, the law is a forward thinking instrument in addition to other aspects. For example, slavish devotion to precedent is not truly respect for the past, it is in place to create a predictable future. Likewise, the use of intention is an attempt to guide behavior in the future. In that sense, it is indeed worse to do something and intend to do it, on the presumption that a greater number of people in the future will succeed at doing the bad thing if they intend to do it rather than doing it as mere accident.

However, intention is indeed a nightmare to gauge in practice. Since intention is measured by objective behavior, but is really a subjective concept, what are we truly measuring by intention? We are looking at outward behaviors that are simply part of the underlying bad action. So it becomes: it is worse to do action X' rather than action X, where the prime is behavior that may otherwise be innocent but is indicative of an intent to do X under the circumstances. Perhaps if we could imagine the entire subset of primes, we could just make a list of Xs and 's and stipulate the entire list while ditching the intention bit.

I'm beginning to think there is a judicial efficiency argument in here somewhere as well. Those types of arguments always give me a warm-and-fuzzy feeling.

Truly dizzying (Princess Bride reference FTW) - excellent choice of topic.

Balthazar Oesterhoudt said...

Thank you for that comment. Again, I tend to overpolemicize my arguments for rhetorical force, knowing full well there are other considerations.

There was one big issue I did not discuss here, namely, the law's interest in preventing people from having certain "bad thoughts." Bad intent gives birth to bad action, and the law wants to discourage bad action as much as possible for "utilitarian reasons." If fewer people act badly, fewer people will be robbed, murdered or even suffer discrimination. By making "intent" an element to these misdeeds, it sends a message that "bad intent" can lead to physical consequences. People being what they are, they will see those consequences and refrain from acting in the "bad" way that gave rise to them.

This is the classic "deterrence" rationale for criminal sanction. Deterrence works as long as someone out there modifies his behavior so as not to injure another person. By punishing intent, the law at least potentially dissuades people from forming the thoughts that lead to crimes. That said, it is almost impossible to measure how well deterrence works, because its success depends on people not doing things; and how do you measure how often someone privately chooses not to do something?

Thus, I recognize that the law has a utilitarian interest in punishing intent so as to prevent others from hatching dangerous mental designs. Even if individual thought control is not within the law's province, society--through law--may nonetheless attempt to curb so-called "bad thoughts" by making examples out of those who have them--and acted on them.

SteveW said...

I agree with your latest comment, although I was focusing on angles to intention that squared with me. I believe the law has no business in naked thought crime, but then again few people ask me.

Deterrence is just as easy to measure as retribution, so it's all good. :P