Is Intent Constitutive of Wrongdoing?

Abstract

According to conventional wisdom, criminal conduct consists of two inculpatory elements: wrongdoing, which is a function of socially-undesirable harms, and risks that can be defined independently of an actor's subjectivity; and culpability, which is a function of an actor's subjectivity. Antony Duff challenges this paradigm by advancing a thesis that some commentators equate with the much mooted Doctrine of Double Effect. Beginning in Intention, Agency, and Criminal Responsibility (1990) and continuing in Criminal Attempts (1995), and Answering for Crime (2007), Duff argues that the intent with which a person acts (as opposed to his willingness to endanger) can affect not only his culpability in acting but also the wrongfulness of what he does. This chapter critically examines Duff's thesis, distinguishing it from the much-criticised Doctrine of Double Effect, but questioning whether Duff shows that intent is constitutive of wrongdoing sufficient to justify the normative weight he accords it and, if he does so, whether he shows that willingness to inflict harm is not also constitutive of harm.