Criminalizing Endangerment: A Response to Marcelo Ferrante's Comment

Author:R. A. Duff
Position::Criminalizing Endangerment- A Comment, 65 La. L. Rev. 967B982 (2005).

I. Attitudes and actions .II. Aiming at evil .


R. A. Duff1

Page 983

I Attitudes and actions

Ferrante finds two general theses in my article; he agrees with one, but rejects the other.2 He agrees with what he calls "the thesis of attitudes as wrongmakers"Cthat the kind of wrong an action instantiates can depend on the attitude it expresses. Unfortunately, that is not a thesis that I want to assert, at least as he understands it and as far as the criminal law is concerned. He rejects what he calls "the perfect correspondence thesis" Cthat actions which are intended to harm or to endanger others always express an attitude of hostility, whereas actions not guided by such an intention do not express anything other or worse than indifference. However, I do not want to assert that thesis either, at least in the way that he understands it; indeed, I agree that it is false. Page 984effect would ensue (because he hated V and would be glad to see her suffer); or really did not care one way or the other, and would have been neither pleased nor saddened if he had achieved his aim without damaging V's property; or regretted "having to" cause such harm in order to achieve his aim, and would have been pleased had he (against expectations) achieved his aim without doing so.

Ferrante relies on this kind of separation between action and attitude in ' 3 of his article: it is illustrated by his discussion of A, who intends to burn down her neighbor's tree (because it blocks her view), and B, who intends to burn down his own tree but realizes that the fire will spread and burn down his neighbor's tree too. He is right in most of what he says about such examples, in particular in his claims that an attitude of hostility is not "invariably correlated" with an intention to harm,3 and that A and B might have "equivalent dispositions concerning their respective neighbors,"4 in that each might be willing to damage the neighbor's property in pursuit of the end of clearing the view, without wishing such damage for its own sake. That is why I say, of two comparable agents, that "[e]ach, we might think, displays the same vice or defect of characterCa willingness to damage others' property in pursuit of his own ends, a serious indifference to others' rights and interests."5

However, the attitudes with which I am concerned are not thus separable from the actions that manifest them; we therefore cannot even ask whether they are "invariably correlated" with those actions. My concern is with the practical attitudes of indifference or of hostility, that are partly constituted by the actions that manifest them.6 Thus the hostility that, on my account, an attack involves is not an attitude separate from and motivating the attack, any more than the indifference that endangerment can involve is an attitude separate from the action of knowing endangerment. In both cases, my concern is with what is "intrinsic" to the action:7 to say that an action constitutes an attack, i.e. that it is aimed against a victim and is intended to harm, is to say that it manifests "practical hostility" toward that victim; and the kind of "indifference" that properly Page 985concerns the criminal law is a matter not of the agent's feelings, but of the extent to which her actions show her to be ready to modify her conduct in order to avoid harming others.

Someone might now object that if "hostility" and "indifference"...

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