Seminal Works: Kimberly Kessler Ferzan on the Philosophy of Criminal Intention

Kimberly Kessler Ferzan

Kimberly Ferzan is the Harrison Robertson Professor of Law and the Caddell & Chapman Professor of Law.

August 29, 2017

Kimberly Kessler Ferzan's groundbreaking work connecting criminal law and philosophy has offered new ways of understanding the toughest moral problems in seeking justice.

The University of Virginia School of Law professor's numerous articles and books broaden our understanding of the nature of criminal responsibility, the principles of punishment, and the intersection between criminal law and the principles of evidence.

But the "largest mountain" she's climbed as a scholar, she said, is her 2008 article, "Beyond Intention," published in the Cardozo Law Review and selected for the 2006 Stanford/Yale Junior Faculty Forum. The paper addresses how to understand what's going on in people's heads as they commit a crime. It's an issue Ferzan has seen firsthand as a former prosecutor for the Justice Department.

"We distinguish the person who kills on purpose (murder), from the person who kills recklessly (manslaughter), from the person who kills by accident (sometimes no crime at all)," Ferzan said.  "Because of this reliance on mental content, we need to understand the philosophy of mind that the criminal law presupposes."

Ferzan offers the example of mental states, which are, as scholars say, “referentially opaque.” 

"That means that you cannot substitute what a person has in her mind for another description, even if they are both descriptions of the same thing," Ferzan said. "For instance, Oedipus desired to have sex with 'this woman,' and 'this woman' turned out to be his mother. But he never intended to have sex with his mother."

Usually, we think that a resulting crime is intended when it is the motivation for why the person acts. "Beyond Intention" grapples with the connection between "knowing" and "intending." At what point can we say that if someone knows the meaning of their actions, or understands their consequences, then the person also intends that meaning or result? In philosophy, this is called the problem of “inseparable effects.” 

"Sometimes it is clear that the known result is not part of what is intended," Ferzan said. "To use an example from [legal philosopher] John Finnis, I can place my drapes in the sunlight, knowing they will fade, without intending they fade. On the other hand, sometimes it seems that a known result must count as intended. A scientist who intends to decapitate seems also to intend to kill."

The article relies on literature on the philosophy of mind to reveal that the object of our intentions has many meanings. For example, a blue pen can also be “the pen on my desk,” and “the pen my son gave to me for my birthday.” A mind thinks holistically with respect to all the meanings a person has for the object, Ferzan explains. 

"With respect to causing harms, the answer is a bit trickier. It is not enough that I know a result will occur. Rather, it must be the case that I understand the act as conceptually or empirically entailing the result in all possible conditions," she said. "So long as the scientist cannot understand decapitation as anything other than killing, intending the former is intending the latter. Drapes don’t always fade, but decapitation always kills."

How it came about:

"I was introduced to questions about mental states in a 1L seminar, and these were some of the very first sorts of puzzles that I wanted to unravel as an academic. My early piece, ‘Opaque Recklessness,’ addresses content questions with respect to recklessness. Even now, this question is near and dear to my heart.  Recently, I’ve used the argument in 'Beyond Intention' to unravel questions in just war theory about when one is intentionally killing a noncombatant ('Intentional Content and Non-Combatant Immunity: When Has One Intentionally Killed a Non-Combatant?,' 4 Methode: Analytic Persp. 88 (2015)).  If what is going on in people's minds matters, then we need to know how to determine the scope of that mental content.

"This was, without a doubt, one of the most difficult topics I have ever tackled.  Whenever I write, I start with a puzzle and I just thrash about until I find the answer. This paper involved mastering a complicated literature and working beyond a seemingly endless series of dead ends."

Key lines:

  • "In summary, a deeper understanding of representational content allows us to more readily answer the typical categorization questions of the criminal law. We can determine when what the actor intended is an instance of the type of intention prohibited by the law. We can also determine whether the defendant may be said to have done what he intended. At the same time, however, this broader understanding of intentions may undermine their very normative usefulness."
  • "The problem of inseparable effects reveals the deficiency of our conception of intention as motivational significance, as this view cannot account for when effects are so intertwined with intentions as to be intended themselves. We can unravel this paradox by recognizing that our thinking is normative. Our thoughts are sensitive to other meanings of our intentional objections — we think holistically. We have been led astray by viewing intentions as one-dimensional, ignoring the robust nature of our thought."

Why the work matters:

Michael Moore, a renowned law and philosophy professor at the University of Illinois said Ferzan’s article is a “path-breakingly original contribution to scholarship in three distinct ways.” 

“One of these ways is simply the article’s recognition, and charting the dimensions, of a problem, the problem Professor Ferzan calls the ‘inseparable effects’ problem. This is a problem that few scholars have seen and none have solved. This, despite the problem being a fundamental one for both criminal law and the morality on which criminal law is based, that ascribing responsibility to persons for their actions. As Ferzan accurately summarizes, intentionality is a central property by virtue of which we ascribe responsibility to ourselves and others, a property as central to these moral and legal practices as is the property of causation (which incidentally has its own ‘inseparable effects’ problem). It is thus a very big deal if such properties cannot do the work in grading responsibility that law and morality demands of them. Despite this, the problem is so well hidden and so little discussed in criminal law scholarship because of two of its features: one is the conceptual complexity one must work through just to see what the problem is. Considerable sophistication in ethics, logic, the philosophies of mind and of action, as well as expertise in criminal law theory, is required to frame the problem correctly. This is not work that either amateurs or dilettantes can do. Second is the apparent agreement of ‘common sense’ about how cases involving the problem are to be resolved, a surface agreement in outcome that glosses over but does not address or resolve the fundamental difficulties and conundrums that Ferzan explores.

“The second way in which Ferzan’s article is remarkable is the originality of its proposed solution to the problem of inseparable effects. Such a problem can be solved only if one solves the more general problem of how one ascribes content to intentional states. Ferzan fearlessly and ambitiously tackles this most difficult problem in philosophical psychology, defending a holistic conception of such content-ascription. Her central insight is that the content of an intention is neither a real-world event-type nor a single, canonical description of an event-type (the two leading candidates for content in the philosophical literature); rather, it is constituted by a cluster of such descriptions that readily ‘come to mind’ of the person whose intention it is. It is this subjective clustering of descriptions that Ferzan uses to solve the inseparable effects problem (an effect whose description is within the cluster is ‘inseparable,’ whereas an effect whose description is without the cluster is ‘separable’).

“Not content with offering up this solution to the psychological problem of content-ascription, Ferzan’s third revolutionary suggestion is that we radically revise how we see the ethics of responsibility ascription. She accurately gauges why intention has for centuries been thought to be of central importance in the ascription of responsibility: Intentions are supposed to be constitutive of human agency in that they are supposed to mark when — in Aquinas’ words — ‘we set our will towards evil.’ Ferzan’s challenge is to question how intention can be that kind of mark of human agency when many inseparable effects that are properly a part of intention’s content are not motivating of the actions such intentions cause. This is a challenge that cannot be ignored by anyone writing about responsibility, whether in criminal law or in ethics. Even those of us who disagree with Ferzan’s conclusion here — that we must move ‘beyond intention’ in our ascriptions of fault — must come to terms with Ferzan’s forceful and striking arguments for that conclusion.”   

The Seminal Works series explores key scholarship by UVA Law faculty that has changed how we think about the law.

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