Intention in the Criminal Law—A Rejoinder

AuthorJeremy Horder
DOIhttp://doi.org/10.1111/j.1468-2230.1995.tb02041.x
Published date01 September 1995
Date01 September 1995
Intention in the Criminal
Law
-
A
Rejoinder
Jeremy
Herder*
Introduction
Nicola Lacey’s article in
this
Journal,
‘A
Clear Concept of Intention: Elusive or
Illusory?’1 tackles a breathtaking array of themes that are of central concern to
criminal law scholars. We are treated to a sophisticated analysis of a House of
Lords decision on the meaning of intention in the law of murder: an evaluation
of the contributions of descriptive and reductive scepticism to criminal law
s~holarship,~ a critical assault on conceptual and ‘ordinary language’ analysis of
criminal law
concept^,^
and some thoughts on the implications of the argument
for the study of criminal law issues (not just ‘criminal law’) in the c~rriculum.~ It
would be impossible to do justice to all of her arguments in a single rejoinder.
So,
I
want to concentrate on a narrow, but important issue.
I
want to show that Lacey’s
assumptions about the role, if not the concept, of intention in the criminal law rest
on a mistake. This is significant because, unless one understands the different roles
that intention plays in the criminal law, one will not fully understand why the
meaning of intention
-
the conception of the concept
-
may differ according to
the role it is playing in a particular context. Then, by reinterpreting
MoZoney6
in
the light of the role intention is playing in that context, I hope to cast doubt on her
claim to have shown, through an analysis of intention in the criminal law, that one
must
have ‘a criminal law enterprise which dispenses with
. .
.
the boundaries
between criminal law and criminal justice, and which addresses criminal justice
issues explicitly within a particular social and political context.
Intention: the concept and its role
The concept of intention, as it
is
employed in the criminal law, is the starting point
in Lacey’s analysis because she shares the reductive sceptic’s view that:
the practical application
of
legal concepts such as intention is in a particular context: that
of
ascriptions
of
responsibility and, in criminal law, culpability. Hence, to the extent that legal
concepts are not determinative
of
outcomes, substantive ethical and political issues
.
.
.
inevitably underlie their application. And it seems unlikely, to say the least, that these can
ever
be
completely accommodated within an ideal set
of
legal concepts.*
It seems uncontentious that substantive ethical and political issues cannot be
‘completely accommodated within an ideal set of legal concepts.
Legal positivists
*Fellow and Tutor
in
Law, Worcester College, Oxford.
I
am
grateful to
John
Gardner, and to the
Modem
Law
Review’s
referee, for their helpful comments
on
a
previous
draft
of
this
article. Mistakes
remain
my
responsibility.
1
[
19931 56
MLR
62
1.
2
Moloney
[1985]
1
All
ER
1025,
discussed by Lacey,
op
cir
n
1,
pp
629-634.
3
Lacey,
op
cir
n
1,
pp
622-623, 637-642.
4
ibid
pp
623-628.
5
ibid
pp
640-642.
6
op
cir
n
2.
7
Lacey,
op
cir
n
1,
p
639.
8
ibid
p
623.
0
The
Modern Law Review
Limited
1995 (MLR
585,
September). Published by
Blackwell
Publishers,
108
Cowley Road, Oxford OX4 1JF and
238
Main
Street,
Cambridge, MA 02142, USA.
678

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