NATURAL LAW MENS REA VERSUS THE

BENTHAMITE TRADITION

KEVIN L. FLANNERY, S.J.

I. INTRODUCTION
Mens rea cannot be a completely vai'te-free conception in natural
law theory—or, at least, not in a natural law theory such as that
presumed here.1 As the present writer understands it, mens rea

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involves the intention a person has in doing something2 and/or the
harm he is willing to tolerate in so doing. Since according to natural
law theory both intention and (more obviously) harm involve a
person's relationship to one or more of the basic human goods, mens
rea can never be completely separated from morality.3 It was this
aspect of the traditional understanding of mens rea that Jeremy
Bentham and several of his successors took exception to, as we shall
see.
Although in natural law mens rea will involve an intention that is
truly rea (at fault), this does not mean that a natural law understanding
of mens rea cannot be objective in the sense that a jury that considers
simply the facts connected with an alleged crime cannot determine
whether mens rea is present. On the contrary, as I shall argue, it is
those theories that have attempted to analyze mens rea by employing
(supposedly) morally neutral concepts such as "consequences" and
"foresight of consequences," etc., that have failed historically to
provide adequate objective guidelines for juries seeking to determine
mens rea.

1. See John Finnis, Natural Law and Natural Rights (1980); Germain Grisez,
The Way of the Lord Jesus; Christian Moral Principles (1983). For a more complete
bibliography, see Joseph M. Boyle, Jr., John Finnis, and Germain Grisez, "Practical
Principles, Moral Truth and Ultimate Ends," 32 Am. J. Juris. 1987, pp. 148-51.
2. It is thus to be distinguished from the intention with which a person acts
and also from his motives. See G.E.M. Anscombe, Intention (1957), pp. 17-20. As
Anscombe says, "a man's intention is what he aims at or chooses; his motive is
what determines the aim of choice."
3. According to Finnis, there are seven basic human goods: life, knowledge,
play, aesthetic experience, sociability (friendship), practical reasonableness, and
"religion" (understood as the object of a concern about "an order of things
'beyond' each and every man.") Natural Law and Natural Rights, pp. 86-90.

377
378 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
I shall begin by examining select arguments within the history of
mens rea in British jurisprudence. I shall consider remarks by Jeremy
Bentham, John Austin, and J.W.C. Turner, pointing to certain
difficulties in their accounts, which are all connected with the attempt
to analyze intention (or sometimes just "oblique intention") in terms
of desire and/or foresight of consequences. Next I shall consider
remarks by Lord Hailsham in the famous case Hyam v. Director of
Public Prosecutions, which remarks constitute a clear break with the
Benthamite tradition.
I shall argue that Hailsham's treatment of mens rea overcomes

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most of the problems inherent in the treatments of his three
predecessors, but that it also leaves, especially, one issue unaddressed:
What is within an agent's intention? This is an issue that has
continued to exercise legal philosophers since Hyam. I shall, therefore,
put forward a scheme by means of which we might determine what
a person has done intentionally. The scheme makes use of the
principle of double effect as traditionally conceived.

II. JEREMY BENTHAM

The remarks in Jeremy Bentham that are pertinent to our present

concerns are made with respect to oblique intention. Bentham defines
oblique intention by contrasting it with direct intention:
A consequence, when it is intentional, may either be directly so,
or only obliquely. It may be said to be directly or lineally inten-
tional, when the prospect of producing it constituted one of the
links in the chain of causes by which the person was determined
to do the act. It may be said to be obliquely or collaterally
intentional, when, although the consequence was in contemplation,
and appeared likely to ensue in case of the act's being performed,
yet the prospect of producing such consequence did not constitute
a link in the aforesaid chain.4
What Bentham says here about direct intention is fairly clear. A
person intends—is "determined to"—initiate a series of causes. If
the consequence in question is one of this series, it is directly intended.
When we turn, however, to his remarks on oblique intention, a
difficulty surfaces. Bentham appears to want to say three things: (1)

4. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation

(J.H. Burns and H.L.A. Hart, eds. 1982), p. 86; emphases Bentham's. In what
follows, unless otherwise indicated, it can be assumed that emphasis is attributable
to the author quoted.
KEVIN FLANNERY 379
that an obliquely intended consequence (or its "prospect") does not
"constitute a link" in the causal chain that the agent is determined
upon; (2) that an obliquely intended consequence is only "likely to
ensue;" and 3) that the agent is not "determined" to bring the
consequence about, but merely knows (has "in contemplation") that
it is likely to come about. A few pages after this definition, Bentham
gives an example. Suppose that King William II is riding past Sir
Walter Tyrrel just as a stag is also running past. Tyrrel wants to
shoot the stag and not the king, but knows that his shot is liable to
hit either. Nonetheless, he shoots, killing the king. "In this case the

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incident of his killing the king is intentional, but obliquely so." 5 The
difficulty with this definition of oblique intention is that it does not
succeed in excluding instances that clearly should not fall within its
ambit. True, it includes what we would want to include: the instance
in which Tyrrel, not to be deterred from his sport, puts the life of
the king needlessly at risk. But let us say that the stag is coming at
the king in such a way that it will kill him if not brought down.
Tyrrel shoots, trying to save the king's life, but instead hits him, as
he knew he very well might. Was it Tyrrel's intention in any sense
to kill the king? Surely not. And yet this example would fit Bentham's
definition: killing the king is not a link in the causal chain that
Tyrrel is determined upon; this is a consequence that is only "likely
to ensue"; Tyrrel is not determined to kill the king, although he
knows that this is likely to come about.
Why does Bentham steer the course he does? Why, that is, does
he seek out a definition of oblique intention that employs only
concepts such as probability, knowledge, prediction, etc.? As he
apparently saw it, otherwise he would have to go along with the
ancient Roman jurists and employ the traditional jargon (dolus and
culpa, culpa levis, culpa lata, etc.), whose use, in addition to leading
to great confusion, was suffused by the sentiment of moral judgments.6
He disliked especially any talk of "bad intentions," regarding it as
necessarily tied up with personal and societal prejudices about what
is "objectively" good or evil (tied up, in short, with claims about
the natural law).7

5. Ibid., p. 87.
6. Ibid., p. 94. He finds especially distasteful the Latin tag malo animo ("with
evil intent"); ibid., p. 95, note "g." See John Austin, Lectures on Jurisprudence
or the Philosophy of Positive Law (Robert Campbell, ed. 1885), v. I, pp. 432-33.
7. Bentham finishes the section on intention (i.e., chapter 8) by denying that,
properly speaking, there is any such thing as a good or bad intention; consequences
are what are good or bad. An Introduction to the Principles of Morals and
Legislation, pp. 88-89.
380 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
Again, as he saw it, if he could give an analysis that was neutral
in these respects, he could avoid talk of bad intentions as things that
exist in their own right.8 Morality would come in only at a later
stage, the stage of consequences, which consequences would take on
a moral character not because of anything that happens in human
beings or their consciences, but depending on the correspondence of
these consequences to the "greatest happiness principle." But it is
precisely the notion of bad intention—in the sense of willingness to
tolerate harm connected with one's actions—that would have allowed
Bentham to distinguish the two Tyrrel examples given above: that in

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which Tyrrel falls short in respect for the king's life and that in
which he is trying to preserve the king's life.9
In fact, as I shall argue more extensively below, this is the only
approach that might provide the required distinction. But this is not
to say that a jury's or judge's role is to import morality into legal
proceedings. A jury's role, for instance, is never to establish what
right and wrong are. When they begin their deliberations, such things
are already set: harm to a person is bad, protecting one's life is
good. The question before the jury is whether Tyrrel's act was wrong:
whether it did in fact unduly go against the good of the king's life.
But this can only be established after such considerations (and
especially harm as such) are in the picture.

III. FROM BENTHAM TO JOHN ASTIN

So Bentham is interested in locating morality not within the subject
or in his intentions, but in the consequences of actions. This causes
him to pen some remarks about intentions and consequences which
in themselves strain sense; moreover, were a person to try to develop
a theory on their basis, the theory would certainly be inconsistent.
For instance, although he rejects the idea that an intention might
in itself be good, Bentham says that an intention might be said to
be good—and this, even if the consequences are bad, provided its
consequences would have been good.10 But if this is so, then it would

8. Ibid.
9. There is perhaps a more charitable way to read Bentham's remarks on
oblique intention. That is, we could understand him to be speaking, throughout the
chapter on intention, about mens rea (culpable intention); i.e., to have excluded,
from the beginning, non-culpable cases such as the second Tyrrel example. (There
is perhaps some basis for this charitable reading, ibid., pp. 88, 92.) But it is not
easy to reconcile this reading with his eschewing of the notion of good and bad
intentions.
10. Ibid., pp. 92-93.
KEVIN FLANNERY 381
seem that there is after all such a thing as an intention that is in
itself good, for in this case there are no consequences other than
intended consequences from which the prospective act might take its
moral character.11 It was doubtless remarks like this that caused
H.L.A. Hart to complain: "Bentham confines his discussion of
consequences to the consequence of acts and says nothing about the
intentionality of consequences incorporated in the description of
acts."12
Perhaps it was the incoherence of Bentham's remarks that also led
the great nineteenth-century jurist John Austin, a great admirer of

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Bentham, to develop an even more radical theory about the relationship
between intention and consequence.13 For he preserves the idea that
intentions have no necessary or internal relationship with consequences,
and pushes it a bit further, so as to avoid the patent difficulties we
find in Bentham. That is, he removes any notion of volition from
intention, equating the latter with expectation (a purely cogiiitional
or intellectual faculty), and relegates the volitional to another category,
the will, the agent's "last desire," which has a bearing only on the
body or bodily movements.14 "To desire the act [says Austin] is to
will it. To expect any of its consequences, is to intend those
consequences."15
So, Austin will admit nothing having anything to do with volition
to any aspect of an action outside of the will to initiate bodily
movements; he then marks out another part of action, which he calls
intention, but to which he assigns only cognitional activity—in
particular, foresight of consequences. This in a way frees the willing
subject itself of things like guilt and virtue since it wills only the
bodily movement, all good and evil residing in "intention." But
since intention, according to Austin, is purely cognitional, it becomes

11. Consistent with this, Bentham very sensibly says, "the consequences of an
act cannot be intentional, without the act's being itself intentional in at least the
first stage. If the act be not intentional in the first stage, it is no act of yours. . . ."
Ibid., p. 85.
12. Ibid., p. Iviii. See also his complaints about Bentham's act theory. Ibid.,
pp. lvi-lvii.
13. For other possible motivations, see Michael Moore, Act and Crime: The
Philosophy of Action and its Implications for Criminal Law (1993), p. 128.
14. Similarly, David Hume limits the influence of the will to "present actions."
Treatise of Human Nature (L.A. Selby-Bigg, ed. 1896), p. 516. Moore defends
Austin's conception in Act and Crime, pp. 78ff, although in Moore's account basic
actions are (in some sense) identical with complex actions which involve intention.
The literature on basic actions is, of course, vast. For a survey, see Jennifer
Hornsby, Actions (1980), pp. 33-88.
15. Lectures on Jurisprudence or the Philosophy of Positive Law, v. 1, p. 412.
382 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
quite unclear why the subject should be commended for good
consequences or held responsible for bad ones, since knowing or
believing something will happen is itself no reason to be praised or
blamed.
This position leads Austin to make some very implausible claims.
When he speaks for instance of a present intention to do something
in the distant future, he speaks, of course, of the agent's intellectual
activity, i.e., of the agent's beliefs. But, since for Austin the volitional
aspect can in no way be attached to an idea about the distant future
but pertains to bodily movements in the near future, it is impossible

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for an agent to intend now—in our sense of intend—that he do
something in the distant future.16 For when we intend to do something
in the future (or so I should argue), the volitional aspect is inseparable
from the cognitional and therefore extends as far as it does. But this
is not possible for Austin's agent; all he can have in the present with
respect to a future action is an especially strong desire—or perhaps
a succession of desires that trigger one another. How else, when he
gets to the appropriate time in the distant future, could there be a
volitional aspect left? This way of understanding intention might be
made to work in a legal setting (although modern crimes of conspiracy
would not be accounted for); but it does not, unfortunately,
correspond to common sense. For we do often intend to do things
in the future, and this is different from desiring to do them very
much or initiating a series of desires. As I shall argue below, an
agent can intend to do whatever he intends to do without any desire
at all.
This approach also makes it difficult for Austin to distinguish
direct and oblique intention, as Bentham had done. Austin uses an
example very much like the Tyrrel examples employed above. Imagine,
he suggests, that you are shooting at "Styles."
But when you shoot at Styles, I am talking to him, and am
standing close by him. And, from the position in which I stand
with regard to the person you aim at, you think it not unlikely
that you may kill me in your attempt to kill him. You fire, and
kill me accordingly. Now here you intend my death without
desiring it.17
One expects Austin to say, "you intend my death, although obliquely";
but no such qualifier is forthcoming. The reason is that Austin has
earlier equated intention with expectation. And as far as expectation

16. Ibid., pp. 438-39.

17. Ibid., pp. 424, 439.
KEVIN FLANNERY 383
goes, the "intention" to shoot Styles is not much different from the
"intention" to shoot Austin. Certainly the difference is not that the
agent wants to shoot Styles but not X (Austin), for wants and will
pertain only to the movement of the finger upon the trigger. So, we
have another implausibility: for it is clear that there is a difference
between the shooter's attitude toward Styles and his attitude toward
Austin.
The situation becomes more complicated once we realize that,
although in the Styles example Austin does not avail himself of the
direct/oblique distinction, elsewhere he does seem to distinguish the

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two. That is, Austin mentions both direct and oblique intention in
a chart that is included in his Lectures on Jurisprudence (which
lectures we have been considering).18 B since he nowhere discusses
clearly how the distinction should be made, the question arises how
he might have made it.
Perhaps we could employ to this purpose the notion that an
obliquely intended consequence is one that is only likely to ensue.
This approach looks promising as an interpretation of Austin since,
in the above example, one presumes that the agent thought that his
shot was more likely to hit Styles than X. But other remarks by
Austin go against this idea. He says at one point that "intention
. . . is a precise state of mind"; it is "incapable of blending" with
negligence, heedlessness, or rashness.19
Intention . . . is a state of consciousness. But negligence and
heedlessness suppose unconsciousness. . . . Now a state of mind
between consciousness and unconsciousness—between intention on
the one side and20negligence or heedlessness on the other—seems
to be impossible.
Austin's point is that negligence and heedlessness involve not-attending
to certain facts, but that if a person does attend to the facts, he
either does so or he does not: there is no middle ground. This seems
correct, as far as cognition goes. An agent either knows or he does
not; he either believes something or he does not. But if, as Austin
says here, intention is a state of consciousness, his approach is
impossible to square with the idea of probability as determining
intention as either direct or oblique, for probability (obviously) admits
of degrees. In the end the question for Austin remains: How can
something be indirectly foreseen?

18. Ibid., p. 434.

19. Ibid., pp. 428-30.
20. Ibid., p. 428.
384 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
In any case, it does not seem that the difference between the two
types of intention could conceivably depend solely on probabilities.
A machine-gunner defending his post fires off many bullets that he
knows will not hit an enemy. He may even know that in a particular
instance his chances of hitting an enemy are extremely small. But if
he does hit an enemy, he has done so intentionally—and in as strong
a sense of intention as we might want to assign to the action. (This
is not, however, to say that probability plays no role in the analysis
of action. It does play a role, as we shall see below, in conjunction
with intention.)

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It would seem then that we shall have to look elsewhere for
Austin's way of distinguishing direct and oblique intention. Austin
remarks to the imaginary agent in the story about Styles: "You fire,
and kill me accordingly. Now here you intend my death without
desiring it." Although he says simply that the agent intends his death,
perhaps he would want to say that, although to intend is simply to
intend, some intentions might be combined with a desire to bring
about an effect, and we can call these intentions direct, with all
others being oblique. But this does not help either. As we shall see
more clearly below, it is possible not to desire a foreseen consequence
and yet intend it in as strong a sense as you like.
I conclude therefore that Austin's development and radicalization
of Bentham's ideas is not successful.

IV. J.W.C. TURNER

Our third historical figure, J.W.C. Turner, published a long and
extremely influential essay in 1945 that in effect announced the return
of the question, how to characterize mens rea. In it, Turner displays
a strange combination of descriptivist zeal and evangelical concern
for the subjective.
He calls, in the strongest language possible, for "the complete
abolition of the outworn doctrine of constructive malice
aforethought," according to which the intention to commit murder
is attributed to a person who kills while committing a felony. He
objects that, according to this doctrine, "so long as the act which
the accused was engaged on [sic] was unlawful and likely to injure
another, it is immaterial what he contemplated."21 He puts forward
some absolutely compelling arguments against the preservation of

21. J.W.C. Turner, "The Mental Element in Crimes at Common Law," in The
Modern Approach to Criminal Law (L. Radzinowicz and J.W.C. Turner, eds. 1945),
pp. 230, 237-38.
KEVIN FLANNERY 385
this rule, including the following. Suppose that A is provoked by B
into an act that is intended to kill B but instead kills C. The act as
aimed at B would have been mere manslaughter, due to the
provocation; but, since it went awry and killed C, it would be
murder.22 It was arguments like this that no doubt led in 1957 to the
abolition of the category of constructive malice in Britain.
One would expect, then, that when Turner addresses the issue of
liability for crimes, he would want to make sure that those convicted
of crimes intend that for which they are being punished; but his
Benthamite baggage is too heavy.

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He sets out three "rules on which liability depends in crimes at
Common Law":
Rule I: It must be proved that the conduct of the accused person
caused the actus reus.
Rule II: It must be proved that this conduct was voluntary.
Rule III: It must be proved that the accused person realized at
the time that his conduct would, or might produce results of a
certain kind, in other words that he must have foreseen that
certain23 consequences were likely to follow on his acts or omis-
sions.
Rule III appears at first glance to be an attempt to capture intention
in other terms, so that only those who intend an actus reus might
be liable; but that is not the case. Later on in the article, while
reminding his readers of the three rules, he reformulates Rule III,
saying that the jury must know "[T]hat at the time [the accused]
either intended to inflict on someone a physical harm or that he
foresaw the possibility of inflicting a physical harm and took the
risk of it."24 And in another place he says quite unambiguously that
intention "denotes the state of mind of a man who not only foresees,
but also desires the possible consequences of his conduct."25 So,
since Turner states so categorically that "what is required to establish
liability is merely foresight of consequences,"26 it would be possible
for a person to be liable for something that he does not intend.
This problem in Turner's theory comes very much to the fore in
an example he uses. A mountaineer's life is threatened because two
other mountaineers are dangling below him from a length of rope
that also supports him and is attached to his person. The mountaineer

22. Ibid., p. 258.

23. Ibid., p. 199.
24. Ibid., p. 231, my emphasis.
25. Ibid., p. 206.
26. Ibid., p. 213.
386 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
cuts the rope and the other two plunge to their deaths. Turner
believes (correctly, I would say) that the surviving mountaineer is
not guilty in any way of killing the others, so he must show that
this mountaineer's action does not fall within the class of actions
circumscribed by his three rules.
He acknowledges that the one mountaineer acts voluntarily (Rule
II): he is not physically forced to cut the line.27 He acknowledges
too that Rule HI is satisfied, for he says that the one mountaineer's
defense will not "rest upon the absence of any necessary mental
element."28 He clearly does not mean that the one mountaineer

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intends the death of his companions, for although he foresees, he
does not desire their death; thus, his action satisfies Rule III insofar
as this consequence is merely foreseen.
Realizing then, of course, that if his theory is to work, this case
must be excluded under at least one of the three rules, Turner says
the one mountaineer does not cause their deaths: "he does not cause
their death, for they are doomed and he cannot save them."29 But
this is surely wrong. If this case is interesting at all, it is so because
the one mountaineer does cause the death of his companions.30
So then, since the action of the one mountaineer clearly satisfies
both Rule I and Rule II, the problem (as far as Turner's theory
goes) must be in the disjunctive Rule HI. As long as he maintains
that liability might attach to a consequence merely foreseen, the
surviving mountaineer is going to be guilty. If he deletes this clause,
he alters his theory, but at least he excludes the action performed
by the mountaineer from the class of liable actions since he holds
that an intended consequence must be desired, and the mountaineer
does not desire the death of his companions. I shall argue below (in
connection with Hyam) that an analysis of intention in terms of
desire is wrong; but at least it is evident that a clear contradiction
in Turner's theory would be removed if he abandoned the foresight
clause. To do so would also be more consistent, I would argue, with
his concern to ensure that those charged with crimes be truly liable.
To move on then to one final, very telling inadequacy in Turner's
theory, we might note that he says that an actus reus is simply that

27. Ibid., p. 204.

28. Ibid., pp. 204-05.
29. Ibid., p. 204, note 8.
30. As will become more clear below, I am not saying that the mountaineer
directly causes the deaths of the others but that their deaths are side-effects of his
action. As side-effects, however, they must have a cause, which is the action of the
mountaineer.
KEVIN FLANNERY 387
which the governing power in a society has declared to be illegal.31
In places, indeed, he goes even farther than that, suggesting that it
is purely a matter of convention what is to count as an intention in
law. That thing that we identify as the necessary mental element in
crime, he says, changes over the centuries; moreover, he says, the
legal language used to describe it lags behind.32 Sound jurisprudence
with respect to intention therefore is not a matter of coming to
understand intention but of catching up with grass-roots legal practice.
This general positivistic approach leads Turner to say that the
actus reus of applying physical force is "removed" in the case of

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recognized sports such as boxing, in surgical operations, and in
"friendly intercourse" (presumably, pats on the back, etc.).33 But
surely a surgical operation is not the same sort of thing as, for
instance, a case of assault and battery. Physically perhaps the two
actions could in certain instances bear a resemblance to each other;
but, as human actions, the fact that the one is intended for the good
of the person and the other for his harm puts them in radically
different categories. The same obviously goes for pats on the back,
etc. The traditional way of referring even in law to evil intent, mala
in se, etc., had at least this advantage: that people were not led to
believe that a medical operation and a stabbing were one thing that
might arbitrarily be described as either reus or benign depending on
the conventions of society. I shall return to this issue also, in the
course of looking at Hyam.

V. HYAM V. DIRECTOR OF PUBLIC PROSECUTION

Not surprisingly, mens rea continued to be a jurisprudential crux

even after Turner's article. The high point in these respects came
thirty years later with the famous case Hyam v. Director of Public
Prosecution, which was heard in the House of Lords.34 It was not
the last word on this issue: as is well known, even after Hyam,
debate about the nature of mens rea continued both in law courts
and in academic circles. But-with Hyam, and particularly Lord
Hailsham's speech, for the first time the idea that intention might

31. Ibid., p. 221.

32. Ibid., pp. 195-96, 230, 238, 246. On the other hand, with respect to the
issue closest to his heart (the abolition of constructive malice aforethought), he says
that this doctrine is "repugnant to the minds of those who think that a system of
criminal law should be shaped by reason. . . ." Ibid., p. 261.
33. Ibid., p. 222.
34. Hyam v. Director of Public Prosecutions (1975) A.C., pp. 55-99.
388 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
be equivalent to foresight or even foresight with desire was called
seriously and officially into question.
The case was an appeal against the conviction for murder of a
woman (Pearl K. Hyam) who went to the house of the intended
bride of her former lover, "poured petrol through the letter box,
stuffed newspaper through and lit it."35 She gave the woman no
warning, but drove off in her van, leaving the house burning. The
woman escaped death, but her two daughters died of asphyxiation
in the blaze. Hyam's defense was that she only wanted to frighten
the other woman so that she would leave the neighborhood. The

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question before the House of Lords was whether the woman had
rightly been convicted of murder (which would include intending to
cause serious personal harm) since the original judge's instructions
to the jury had strongly suggested that intention was equivalent to
foresight of the consequence of an action. Although Lord Hailsham
voted to reject the appeal, he agreed with the appellant's counsel's
contention that intention cannot to be reduced to foresight or to
desire of foreseen consequences.
Hailsham's position, in outline, is as follows:
(1) Intention is not equivalent to foresight of consequence;
(2) nor is it equivalent to desire of consequences; so liability
cannot be reduced to either, nor to their combination.
(3) Liability depends, rather, immediately upon intention itself,
although
(4) intention sometimes includes more than what is included in
a person's proposal (i.e., within his reason for acting).
Hailsham's argument for (1) consists basically in his pointing out
that:
the surgeon in a heart transplant operation may intend to save his
patient's life, but he may recognize that there is at least a high
probability that his action will kill the patient. In that case he
intends to save his patient's life, but he foresees as a high degree
of probability that he will cause his death, which he neither intends
nor desires, since he regards the operation not as a means to
killing his patient, but as the best, and possibly the only, means
of ensuring his survival.36
Employing an argument similar to one used above, Hailsham points
out too that "a murderer who takes a very long shot at his victim
and kills him" intends to kill or, at least, to do grievous bodily

35. Ibid., p. 55.

36. Ibid., p. 74.
KEVIN FLANNERY 389
harm.37 Against these examples demonstrating that intention is not
equivalent to foresight, there is not much that can be said. His
argument is decisive and important.
Hailsham's argument for (2), contained in the same example of
the surgeon, is not quite as decisive but it can be tidied up. Intention,
he in effect argues, cannot be equivalent to desire since the surgeon
does not desire the (extremely likely) death of his patient. On this
general point, Hailsham receives support from a number of writers
including the philosophers R.A. Duff and Alan White, who point to
the obvious fact that one can intend to do unpleasant things: e.g.,

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go to the dentist.38 However, in reply to this type of argument,
Glanville Williams argues that although visiting a dentist involves
intending something we do not necessarily desire (i.e., pain), this
does not show that the "package" "going-to-the-dentist" is not
desired. Making the appropriate applications to Hailsham's argument,
Williams might argue that, just because the surgeon does not desire
the likely death of his patient, this says nothing about the relationship
between desire and intention, for the surgeon could desire to perform
the operation. Williams is certainly on firm ground here: Hailsham
does not prove his point.
But Williams' point does not undermine Hailsham's important
insight that intention is not logically equivalent to desire of
consequences, however inadequately he might argue for it.39 For
although certainly the surgeon's not desiring his patient's possible
demise does not show that he does not intend to perform the
operation, nothing that Williams says proves that every intention
involves desire. It is of course possible that the surgeon does desire
to heal patients and this patient in particular—but we can also
imagine a case in which a surgeon performs an operation without
desiring to do so.
Or consider this case, which perhaps makes the point more clearly.
A head of state is being sworn in for the tenth or twelfth time. He
intends to take office, and yet he experiences no desire marked (or

37. Ibid., p. 77.

38. R.A. Duff, "The Obscure Intentions of the House of Lords," Criminal L.
Rev., pp. 771-81; Alan R. White, "Intention, Purpose, Foresight and Desire," 92
Law Quart. Rev. (1976), pp. 569-90. See also Donald Stuart, "Mens Rea, Negligence
and Attempts," Criminal L. Rev., pp. 647-62.
39. By denying that they are "logically equivalent," I am not only denying that
they are the same thing as one another but also that when one occurs the other
also necessarily occurs. For a rigorous statement of what is at stake here, see
"Intention, Purpose, Foresight and Desire," p. 575.
390 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)

even pertaining to) "intend to take office." His intention to take

office is simply made manifest in his going through whatever ceremony
is involved. He does this in absolute calm, simply because he has
reason to do so. If there is any sense in which he or the surgeon
desires to do what he does, it is a sense that is distinct from the
usual meaning of the term and one that is simply synonymous with
intention.
Why are these two points of Lord Hailsham's so important? They
are such because they help us to see intention itself as the true
criterion of liability, that is, his point (3). Hailsham makes the

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following remark (part of which we have already seen):
. . . I do not think that foresight, as such, of a high degree of
probability is at all the same thing as intention; and, in my view,
it is not foresight but intention which constitutes the mental
element in murder. It is the absence of intention to kill or cause
grievous bodily harm which absolves the heart surgeon in the case
of the transplant, notwithstanding that he foresees as a matter of
high probability that his action will probably actually kill the
patient. It is the presence of actual intention to kill or cause
grievous bodily harm which convicts the murderer who takes a
very long shot at his victim. . . .40
We have here the antithesis of Turner's position that the actus reus
of applying physical force is "removed" in the case of surgical
operations. Hailsham holds that it was never present: that a stabbing
and an operation are in their very specification different types of
acts.41 This accords well with natural law theory. An intention
"latches o n " to something in reality—and latches on to it as a good
to be chosen or as a reason for acting.42 It does not first pick out

40. Hyam v. Director of Public Prosecutions, p. 77, my emphases.

41. Despite Hailsham's clear assertion that "it is the absence of intention to kill
or cause grievous bodily harm which absolves the heart surgeon," he goes on to
speak of the surgeon's having a "lawful excuse." Ibid. Anthony Kenny, in an article
in which he comes out largely in favor of Hailsham's position in Hyam, criticizes
him on this point: "This move seems both unnecessary and dangerous. It is
unnecessary because once it is recognized that the surgeon does not directly intend
the risk to the patient's life, there is no need to ask whether he has an excuse or
not. It is dangerous, because if it is admitted that there can be a lawful excuse for
intentionally creating a risk of life, the question must be raised what such excuses
are and how far they extend. . . . " Anthony Kenny, "Intention and Mens Rea in
Murder," in Law, Morality and Society: Essays in Honour of H.L.A. Hart (P.M.S.
Hacker and J. Raz, eds. 1977), p. 169. Although Hailsham mentions "lawful
excuse," his argument is basically that the surgeon's action is characterized by his
intention.
42. The issue of reasons for action and their ultimate connection with moral
judgments about actions is a complicated one. For a clear exposition of the position
sketched out here, see Robert P. George, Making Men Moral (1993), pp. 8-18.
KEVIN FLANNERY 391
an object in a non-practical way, which object is only subsequently
or in an accidental way characterized as a good to be pursued.
Between the good in intention and the good (or evil) in the world
there is an internal relation. That is why people are held responsible
for their actions: they (that is, the people) are good or bad according
to whether they choose well or ill.
Williams takes exception to Hailsham's position, calling it "an
example of the judicial tendency . . . to bring in [sic] defences under
the heading of lack of intention." His argument betrays the influence
of Turner—if not his more general Benthamite presuppositions. He

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says that "a surgeon wounds his patient when he inserts the scalpel,"
although he does not commit a crime since "he has the justification
of consent."43 As proof of this, he argues, "In the unlikely case of
a surgeon kidnapping his recalcitrant patient and making various
incisions in him, entirely for the patient's benefit, the surgeon would
be guilty of the offence of wounding with intent; yet his intention
to make the incisions would be the same as in an ordinary medical
operation."44
Williams is clearly wrong to identify legal surgery as in any sense
wounding. Our linguistic intuitions tell us as much. Considering
simply the purely physical actions involved in such an operation,
there is no reason at all to say that the more basic of two further
descriptions of these actions is "wounding" rather than "making an
incision." But neither does his point go through with respect to the
illegal operation he describes. If I enter your house without permission
in order to leave you a birthday present, if I am to be charged with
a crime, it will not be my leaving you a present, but my trespassing.45
The application to the illegal operation is straightforward: the crime
is not the incision but the kidnapping. The object of the surgeon
remains, by Williams' own stipulation, the good of his (kidnapped)
patient.
Wrong as he is, however, Williams helps us to see the larger issue
that concerns us here. Hailsham's identification of intention itself as

43. Glanville Williams, "Oblique Intention," 46 Cambridge L.J. (1987), p. 420.

44. Ibid., p. 420.
45. A critic might insist on drawing an analogy here between trespassing and
the surgeon's operation, arguing that it is the trespassing and not the lack of
permission which is liable to judgment. But it is not entering your house that is
wrong but the fact that I do so without permission. We might imagine that the
summer before you gave me your key and I entered your house quite often without
any hint of culpability whatsoever. Of course, in order to trespass I must enter the
house—so trespassing is house-entering; but this does not mean that what I did the
previous summer was in any sense house-breaking.
392 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
the determining factor brings into play the object of the intention,
which object is either good or bad. Did Hyam mean well or did she
not? Was the surgeon seeking to heal or (acting not as a doctor) did
he intend to kill another by cutting him open?46 If with the Benthamite
tradition, we break an intention in two and examine only the initial
part as if it were the intention itself—if, that is, we separate off
from intention the "mental element" or the "basic action" (considered
as the will to initiate bodily movements), saving the "consequences"
for later and independent analysis—we are quite likely to end up
with implausible claims such as those of Williams and Turner that

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the actus reus of surgery or boxing is "removed" by law.47 We also
make ourselves incapable of distinguishing (to use Bentham's example)
Tyrrel's falling short in respect for the king's life and his trying to
preserve the king's life. This is not because intention is in any way
to be identified with morality but because intention has to have an
object. When we cut this off, we are left with a maimed and (for
legal purposes) useless remnant: one cannot truly specify acts—
because acts are specified by their objects.

VI. WHAT IS WITHIN AN AGENT'S INTENTION?

That brings us to the final point in Hailsham's position, that
intention sometimes includes more than what is included within a
person's specific proposal. Hailsham sees clearly that the surgeon
who performs a heart operation, knowing that the chances are very
strong that the operation will kill his patient, in no way intends that
death. This sort of situation is easily distinguishable from one in
which death is clearly part of a person's proposal: as when, for
instance, Mr. G walks into a restaurant and shoots down Mr. H
because he wants him dead. But the case of the surgeon is not so

46. Paul Mankowski has pointed out to me the interesting fact that if a surgeon
drops his scalpel during an operation, thereby cutting his patient, he does wound
him. This is because in dropping the scalpel he is not functioning qua doctor.
47. It is not clear why, according to Turner and Williams, we must always start
with the presumption of an evil, possibly to be removed. But even if consequences
are considered in some neutral way, there are problems for the Benthamite tradition.
Demonstrating this, however, would require demonstrating the problems inherent in
non-realist systems of ethics, which is beyond the scope of the present essay. See,
however, Michael Moore, "Moral Reality," Wis. L. Rev. (1982), pp. 1061-1156;
"Moral Reality Revisited," 90 Mich. L. Rev. (1992), pp. 2424-33. See also the
criticism of moral realism in Jeremy Waldron's "The Irrelevance of Moral Objec-
tivity," in Robert P. George, Natural Law Theory: Contemporary Essays (1992),
pp. 158-87; and see finally Moore's "Comment: Waldron on Realism" in the same
volume.
KEVIN FLANNERY 393
easily distinguishable from the case of a person who places a bomb
on an aircraft with the purpose of collecting insurance money on the
destroyed plane.48 Like the surgeon, the "aircraft bomber" adopts a
proposal to pursue a good. It is not part of this proposal that anyone
be killed: he would be perfectly content if the passengers could be
saved, as long as he collects the money. Is the aircraft bomber to
be put in the same category with the good surgeon taking a risk?
Or is he to be put rather with Tyrrel, who, not to be deterred from
his sport, shoots in the direction of the king? But then why not put
the good surgeon taking a risk with fun-loving Tyrrel? They both

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pursue a good and both take a risk.
Hailsham does not give any sort of answer to these questions, so
I shall try to provide one.49 That is, I shall offer a scheme by means
of which we can classify these various types of acts for legal purposes.50
I shall also identify the factors that determine that the seams are
where I locate them. The scheme is, I believe, a plausible one; I
shall not, however, mount a detailed defense of it here, other than
to explain why acts are assigned to the categories they are and to
suggest that the scheme corresponds to our intuitions.51

48. Hyam v. Director of Public Prosecutions, p. 74. This example, which is

cited constantly, began its life in Glanville Williams, The Mental Element in Crime
(1965), pp. 34-35. Over the years, its details changed in significant ways. It is only
in a later version, for instance, that the person who puts the bomb on the aircraft
does so in order to collect insurance. "Oblique Intention," pp. 422-23 (including
note 32). It is clear in neither the later Williams article nor Hailsham whether the
insurance money is to be collected because the person in question is the beneficiary
of an insurance policy taken out on one (or more) of the passengers (whom I
understand to include the crew) or an insurance policy taken out on the aircraft.
In what follows, I assume that the latter is the case. Otherwise, it seems to me,
killing the passengers is part of the bomber's proposal insofar as what he proposes
to do is identical with killing: he kills at least one passenger in order to collect
insurance money. See Kevin L. Flannery, "What Is Included in a Means to an
End?" 74 Gregorianum (1993), pp. 499-513.
49. Neither does Anthony Kenny. See "Intention and mens rea in Murder," pp.
169-74. See also Anthony Kenny, "Intention and Purpose in Law," in Essays in
Legal Philosophy (Robert S. Summers, ed. 1970), p. 156.
50. We need not be concerned here with the type-token distinction, a distinction
that often cuts through muddled thinking (see Acts and Crime, p. 295), but also
sometimes causes it, insofar as it is sometimes overlooked that tokens are instances
of types. The present author inclines to Aristotle's idea of "particular forms"—i.e.,
the idea that tokens are (in some sense) the types to which they belong. See A.C.
Lloyd, Form and Universal in Aristotle (1981), pp. 24-27; also Michael Frede and
Gunther Patzig, Aristotle, "Metaphysik Z": Text, Ubersetzung und Kommentar
(1988), v. 1, pp. 47-57.
51. I argue for important elements of the scheme in "What Is Included in a
Means to an End?"
394 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
The two factors (or, here, rules) that serve to produce the scheme
presume, as I have been suggesting all along, that certain things are
good to do, other things bad. They are both derived from the
principle of double effect as traditionally conceived. The first states
that an act that is intended to go directly against a basic human
good cannot be moral; the second that, in order for the toleration
of a bad second effect to be justified, the agent must be forced by
circumstances to perform the action if he is to protect and promote
the good instanced by the first effect.52

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The use of these rules is best illustrated by an example taken from
moral philosophy. The example is used solely as an illustration: it is
a further question (not to be considered here and not necessarily to
be answered in the affirmative) whether the moral position implicit
in the example should find its way into law.53 Suppose that a woman
is in early pregnancy and also has a cancerous uterus. If a hysterectomy
is urgent—that is, if the woman will not survive if she waits until
after giving birth to have the hysterectomy—it is permissible, according
to the principle of double effect, to perform the hysterectomy, which
will have the secondary, non-intended effect of aborting the (early)
fetus. The reason why this is permitted is that the surgeon would be
performing, as doctor, an operation directed toward the good of his
patient (an action that therefore does not automatically get ruled out
as an action that involves direct violation of a basic good). But, if

52. J.P. Gury (1801-1866), one of the standard Roman Catholic "manualists"
of the nineteenth century, formulates the principle of double effect in this fashion:
"It is licit to initiate a cause [Licetponere causam] which is either good or indifferent
and of which there is an immediate double effect, one good, the other evil, provided
that there is present a proportionately grave reason and the end of the agent is
good—provided, that is, that he does not intend the evil effect" (and then he makes
reference to Thomas Aquinas, Summa theologiae, II-II, q. 64, a. 7); Joannes P.
Gury, Compendium Theologiae Moralis (1898), p. 8. The clause(s) "provided the
end of the agent is good—provided, that is, that he does not intend the evil effect"
allows us (among other things) to bring probabilities into the analysis of action, for
it excludes actions that will only possibly have an evil effect, if it is the case that
the agent wants that effect to ensue. Gury explains the "proportionate reason"
clause in this way: "[it requires that] there be present a grave reason for initiating
the cause, and that the agent not be bound on account of justice, office or charity
to omit it" (p. 8). A grave reason, he explains further, would be a reason imposed
by "natural justice" [aequitas naturalis] which obliges us to come to the aid of our
neighbor (p. 9). It is often not sufficiently appreciated that the condition of
proportionate reason has nothing directly to do with utilitarian calculations of
"proportionate good" to be achieved by a prospective action. See, for instance,
R.A. Duff, "Intention, Responsibility and Double Effect," 32 Philosophical Quart.
(1982), p. 16.
53. See Making Men Moral, pp. 28-47.
KEVIN FLANNERY 395
the cancer of the uterus is not immediately life-threatening—if, for
instance, it is extremely slow-growing and localized—performing the
hysterectomy becomes not just performing an hysterectomy but also
a direct killing.54 Using then the two factors, "no direct evil" and
"forcing," we can set out the following scheme. (The various cases
are abbreviated in a fairly obvious manner.)
IV: forced hysterectomy, protector Tyrrel

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III: sportsman Tyrrel, Hyam

II: aircraft case, unforced hysterectomy

r
i I :Mr. G 1
L _J

The heavy line, second from the center, represents the outer extent
of the class of actions directed against basic goods: in this instance,

54. According to Aquinas, intention specifies the act [in de Anima, sees. 305,
308; Summa theologiae, I, q. 87, a. 3c; I-II, q. 72, a. lc; in Meta., lect. 7—see
John Finnis, "Object and Intention in Moral Judgments According to St. Thomas
Aquinas," in Finalite et Intentionnalite: Doctrine Thomiste et Perspectives Modernes
(J. Follon and J. McEvoy, eds. 1992), p. 138ff|. For instance, Thomas argues in
Summa theologiae, II-II, q. 64, c. 7 (i.e., the article which Gury cites in stating the
principle of double effect [see note 52]) that an act of self-defense is not a killing,
except in an indirect sense. This is because the taking of life is not within the
intention of one who is engaged in even lethal self-defense. The death of the
assailant, as Thomas puts it, is praeter intentionem ("outside the intention"): it is
a side-effect of the action. But Thomas does not hold that we can change our own
intention (and therefore the character of our actions) as we desire; it is the situation
in which an action is set that changes it—or, more precisely, that makes it what it
is. To put this point in Thomistic terms, the end (which a person intends) specifies
the act, but it is not part of the substance of the act [Summa theologiae, I-II, q.
7, a. 4, ad 2]: it is not part of what the person is doing. It is "a sort of adjunct
end" [aliquis finis adiunctus—Summa theologiae, I-II, q. 7, a. 3] ("adjunct" in the
sense that it is extraneous to the substance of the act), although it is also the causa
actus principalissima ("most principle cause of the act") "insofar as it moves the
agent toward that which is to be done" [I-II, q. 7, a. 4, ad. 2]. Moore, incidentally,
is well aware of this direct influence of a situation on our intentions (and not vice-
versa). Act and Crime, pp. 177-83. See also note 58.
396 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
the good of human life. Both the case of Mr. G and the aircraft
bomber fall within this class (which includes categories I and II). I
have marked the division between these two cases with a broken line
in order to signify that there is little difference between the two from
a legal (or, in fact, moral) point of view.55 This is also the view of
Lord Hailsham, who regards the aircraft case as a case of murder.56
It is true that the aircraft bomber is pursuing the good of financial
security, etc.; but he also, without being forced (in the sense of
"forced" identified just above), intends to perform an action that,
given the laws of physics pertaining to aircraft, explosives, etc.,
means death for the passengers on board. Moreover, according to

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the type of natural law theory presupposed in this essay, Mr. G also
pursues some good other than the death of Mr. H per se. For no
one pursues evil per se, which would be the case if Mr. G could
seek to violate the good of life out of hatred for life itself.57 It is
stipulated, of course, that Mr. G wants Mr. H dead, but we must
presume that he wants him dead for some reason.
So, both the aircraft bomber and Mr. G intend death. Mr. G's
proposal actually includes the death of Mr. H. The aircraft bomber's
intentions, on the other hand, extend only as far as destruction of
the aircraft—but this in fact means death for the passengers (as he
knows). Both, therefore, in their different ways intend to violate a
basic good. The unforced hysterectomy is put with the aircraft case
(i.e., in category II) since the death of the (early) fetus is virtually
certain and the surgeon is not forced to perform the hysterectomy
at that time. The surgeon's action is the direct violation of a basic
good since he cannot honestly say that his intention is not the death
of the fetus; and he cannot honestly say that because it is not true.
(See note 54.)
The outermost line represents the outer extent of the class of
actions that are not forced (again, in the relevant sense). Since

55. There is though a significant conceptual distinction here. John Finnis refers
to it as the distinction between things done intentionally and things done "not
unintentionally." "Intention and Side-Effects," in Liability and Responsibility (R.G.
Frey and Christopher W. Morris, eds. 1991), p. 48. See also R.A. Duff, Intention,
Agency and Criminal Liability: Philosophy of Action and the Criminal Law (1990),
p. 43, where Duff distinguishes "intended action (intending a result)" from "inten-
tional action (bringing about a result intentionally)." See also Alan White, Misleading
Cases (1991), p. 57 (and pp. 47-61, generally).
56. Hyam v. Director of Public Prosecutions, p. 74.
57. Even those who deliberately take their own lives must be regarded as taking
their lives in order to achieve surcease from pain or peace or some other good or
apparent good. See Summa theologiae, I-II, q. 29, a. 4, ad 2; q. 73, a. 8, ad 2;
see also Thomas Aquinas, in EN, sec. 1062. The idea can be found therefore also
in Aristotle, Nicomachean Ethics, book 5, chapter 9.
KEVIN FLANNERY 397
Tyrrel's shooting out of love of sport is in itself a good (or at least
not an immoral) act, it stands outside of the class established by the
first factor—i.e., outside the class of what should be considered the
direct taking of life. What allows it to be so considered is the
presumed reduced probability (although significant risk) that a life
might be taken. (The action does not mean death for anyone but
only possible death.) But since circumstances have not forced him
(in the relevant way) to shoot, Tyrrel is guilty of lack of respect for
the life of the king. The Hyam case is put into this same category
for much the same reasons. Pearl Hyam sought a good in pouring

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gasoline through the mail box of her rival: presumably, the affection
of her former lover. Moreover, given a presumed lack of certainty
(but significant risk) that a life might be taken, her action cannot be
considered a direct killing. Nonetheless, she was not forced (in the
relevant sense) so to pursue this good.
Finally, the case of the forced hysterectomy and the case of Tyrrel's
taking a risk in order to save the king's life fall altogether outside
the class of prohibited actions. Neither an hysterectomy nor shooting
ah animal in order to save a life are inherently evil acts. As we saw
in considering the ideas of Turner and Williams, they are not to be
confused with wounding, murdering, manslaughter, etc., for they
have as objects not evils, but goods. Therefore the heart surgeon
who operates in spite of risk would also be in this last category.
As a further illustration, we might consider another sort of possibly
judicable action—failure to propagate the truth. As with the previous
example, it is important to bear in mind that nothing is being said
here about the way in which an action should be regarded in law
(how it should be punished, for instance): the goal is simply to
distinguish types of actions. According to the scheme set out above,
there would be different grades of "journalistic tort." The most
serious would be a direct attack on truth itself or the case in which,
for instance, a newspaper deliberately prints lies in order to sow
confusion. The range of paradigm cases would look something like
this:
398 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
IV: forced prevaricating

III : failure to check facts

II: Libeling a candidate, unforced prevaricating

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' 1
1 I: sowing confusion .
1

The case of "sowing confusion" is like the Mr. G case above, for
here the newspaper wants precisely to tell lies—although the
presupposition is again that it has a reason for wanting to tell lies
(i.e., in order to sow confusion).
In category II we see, first of all, the case in which a newspaper,
for political reasons which might be perfectly respectable, publishes
a report (which it knows to be false) that a candidate for public
office is an adulterer. In this case the newspaper does not want
precisely to tell lies, but to further another candidate's campaign,
yet it still performs (corporately) an action that goes directly against
the good of truth.58 "Prevaricating" (as in "unforced prevaricating,"

58. It might be that in certain circumstances deliberate falsehoods published for

national security reasons ought not to be placed in this category. As suggested a
number of times above, it is the present writer's opinion that human practices such
as medicine, journalism, and war-making have a role in determining what is and
what is not a direct violation of a good. (See "What Is Included in a Means to an
End?" pp. 510-11.) If this is correct and if, for instance, a wartime newspaper
might be considered part of the activity of protecting national security, what appears
to be a lie might, in certain limited circumstances, not be such. The case would be
analogous to the case of corporate self-defense. Although in an act of self-defense
we encounter what appears to be a direct killing, that is not what such an act is,
since the killing is outside the intention of the person defending himself and since
intention specifies the act. See note 54 above. I hope to take up this matter of the
relationship between human practices and action theory in the near future.
KEVIN FLANNERY 399
also in category II) is a technical term of scholastic casuistry that
refers to an instance in which a person (or, in this case, a publication)
does not technically tell an untruth but nonetheless says something
intended to deceive. Thus, a newspaper might prevaricate by
suggesting—but not saying explicitly—what it knows to be false: that,
for instance, a public figure is an adulterer. There can be no forcing
here (in the sense identified above); the newspaper intends that the
false impression be given; therefore, although the report is not strictly
speaking false, it is a direct attack on the truth.
In category III is found the analogue of Tyrrel's thoughtlessly

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shooting the king. A newspaper editor, in order to get home early
one evening, fails to verify a report that a politician (who is loyal
to his wife) is an adulterer. He should have done so, but he also
believed the report to be true. He has not directly attacked the good
of truth, but he has done so indirectly.
Finally, in a totalitarian state, the ruling party of which has
procured the forced confession of a dissident, an opposition newspaper
might publish a misleading report ("Mr. S today confessed guilt. . .")
in order to survive as a publication. Although publication of the
report has the foreseen consequence that some people are deceived
into thinking that the dissident is guilty, the act of publication is in
no sense a violation of the truth. (Of course, it is unlikely in such
a state that the permissibility of such prevarication could ever become
positive law; this does not prevent it, however, of course, from being
part of natural law.)
Other sorts of action could be treated similarly. Thus, that which
Lord Hailsham hinted at is indeed possible: there are identifiable,
objective characteristics of actions, which allow us to place them in
the various categories required.

VII. CONCLUSION
So then, in natural law theory, mens rea clearly cannot be analyzed
independently of the concepts of good and evil. But that does not
mean that we cannot be objective in saying who lacks respect for
that which is valuable. In determining what is and what is not within
a person's intention, and in what sense, we do indeed presume that
certain things are to be pursued, other things to be avoided. But
that (obviously) comes with the pursuit of justice itself: justice itself
is the sort of thing to be pursued, injustice the sort of thing to be
avoided. Jeremy Bentham and many of his descendants got things
backwards, thinking that the question of good and evil might be
saved till last and that an "oblique intention" could be identified
400 THE AMERICAN JOURNAL OF JURISPRUDENCE (1995)
independently of concepts such as culpa and malus, which cling so
unpleasantly, as they saw it, to a person himself. The concepts of
good and evil, however, are first principles of the science of ethics,
which means not only that they establish what ethics is, but that
they help to characterize whatever falls within that science. There is
no intention, oblique or otherwise, that does not have as part of
itself good—and sometimes evil. To suppose otherwise is to fail to
comprehend intention itself and how it fits into ethics. What Bentham
tried to do, therefore, did not—because it could not—succeed.59

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59. I thank Germain Grisez and Paul Mankowski who read earlier drafts of this
paper and made helpful comments.