A Republic, If You Can Keep It

by Neil Gorsuch

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  THE BOLDER OF THE TWO challenges is perhaps most emblematically identified with the prolific Judge Richard Posner. In Judge Posner’s view, legal liability in tort should turn on a comparison of social costs and benefits. Whether a legal wrong is done intentionally is more or less beside the point. Intentional torts merit stiffer penalties than those done recklessly or negligently only if and to the extent that economic efficiency requires that outcome. To explain why this is so, Judge Posner asks us to consider the case of Bird v. Holbrook—a chestnut that many of us encountered in law school and that, as it happens, involved an actual bird and, perhaps even better still, a bed of tulips.

  So let us begin with the facts of that case. In Bird, the defendant owned a walled garden where, as the court put it, he “grew valuable flower-roots, and particularly tulips, of the choicest and most expensive description.” To protect the garden, the defendant-owner set up a hidden spring gun, a shotgun rigged to fire when any trespasser stumbled over a contact wire. The plaintiff, a William Bird, was a young man of nineteen who saw a neighbor’s female servant in distress. She was in distress because a wandering peahen apparently belonging to her employer had escaped and “alighted in the defendant’s garden.” So Will Bird, a well-raised young man it would seem, volunteered to collect the bird. He clambered to the top of the defendant’s garden wall and called out two or three times to see if anyone was around. Receiving no reply, he jumped into the garden. Once in the garden he saw that the peahen had taken shelter near a summer house and so he went to collect it. Seeking to pluck the bird, not pick the flowers, he was nonetheless rewarded for his troubles with a spray of swan shot from the defendant’s hidden spring gun.

  When his case for damages eventually made it to court, the English bench found the garden owner liable. The court did so on the basis that it is unacceptable (at least without notice) for anyone to maim others intentionally simply for picking tulips. The intentional harming of another’s person is a grave thing and generally impermissible at law, even for the protection of property. Neither, the court pointed out, was the defendant really even seeking to defend his tulips. By leaving a hidden spring gun lying around, the owner demonstrated that he was just as happy to injure someone who had already picked his flowers as he was someone about to pick them. And no doubt in the owner’s view punishing the completed picker was a useful deterrent, a way to dissuade other future would-be pickers from even trying. But this was a serious wrong because, as counsel for Mr. Bird put it, the sanction of law is required “to give effect to punishment, and pain [intentionally] inflicted for a supposed offence, at the discretion of an individual, without the intervention of a judicial sentence, is a mere act of revenge.”

  Now back to Judge Posner. For his part, Judge Posner encourages us to analyze Bird, and tort law generally, in a radically different way. In his view, the case can be and is perhaps better understood not as involving an intentional wrongdoing but as involving an effort to achieve the optimal social balance between two perfectly “legitimate activities, raising tulips and keeping peahens.” Spring guns, Judge Posner suggests, may well be an efficient, perhaps even the most efficient, way of protecting tulips in a time and place where police protection is not readily available; conversely, spring guns may be inefficient in times and places where other means of protection are more accessible and accidental shootings more likely. The real trick, Judge Posner argues, and what he says judges already may be doing subconsciously, is “design[ing] a rule of liability [in tort] that maximize[s] the (joint) value of both activities, net of any protective or other costs (including personal injuries).” Neither does Judge Posner confine his critique to the realm of civil liability. In criminal law, too, he argues that intent has significance only as a proxy for other variables in an economic cost-benefit analysis. So it is that, under his approach, the fact that a defendant may have intended to kill or maim others is itself really “neither here nor there.”

  To those who might object that liability for intentionally killing or maiming another human being should not turn on a balancing of economic costs and benefits, Judge Posner offers this reply:

  It is surely not correct to say that society never permits the sacrifice of human lives on behalf of substantial economic values. Automobile driving is an example of the many deadly activities that cannot be justified as saving more lives than they take. Nor can the motoring example be distinguished from the spring-gun case on the ground that one who sets a spring-gun intends to kill or wound. In both cases, a risk of death is created that could be avoided by substituting other methods of achieving one’s ends (walking instead of driving); in both cases the actor normally hopes the risk will not materialize. One can argue that driving is more valuable and spring-guns more dangerous; but intentionality is neither here nor there.

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  A SECOND, PERHAPS MORE MODEST, challenge to our received legal tradition, though one headed in much the same direction, might be identified with Glanville Williams and his theory of “oblique intention.” While Williams did not insist that intention (however defined at law) is entirely irrelevant to the assignment of legal liability, he argued for collapsing intent with foresight or knowledge and treating the two the same when it comes to determining culpability in the criminal law, much as American law typically does in tort.

  To make his point, Williams once offered this example—a colorful and complex one in its own right. Suppose a spy is discovered to be ferrying a top secret and highly sensitive device to a hostile state by way of an international flight. Detected in air, the spy fears he will be prevented from completing his mission, so he seizes a hostage and demands that the flight steward prepare a parachute so that he can escape with the device intact. The steward (apparently steeped in national security matters himself) recognizes that the consequences will be dire if the secret device falls into the hands of the enemy, so he discreetly cuts the parachute’s rip cord. In a rush, the spy fails to check the parachute, leaps from the plane, and the device (along with the spy) is destroyed upon hitting the ground. Applying his oblique theory of intention, Williams had this to say:

  It seems clear that, as a matter of law, the steward must still be credited with an intention to kill the criminal. He foresees the certainty of the criminal’s death if the events happen as he sees they may, even though he does not desire that death.

  Of course, the steward’s homicidal act might be legally justified on other grounds, say perhaps because of the affirmative defense involving the defense of others. But Williams used his hypothetical to make a different point. He used it to argue that whether the steward intended the spy’s death or merely knew it would happen should not matter when assessing his legal liability or access to any affirmative defense. In Williams’s view, there is no point in distinguishing between at least intended and foreseen homicides because all that does is “involve the law in fine distinctions, and make it unduly lenient.”

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  WITH JUDGE POSNER’S AND Glanville Williams’s views now (albeit very briefly) sketched, we might begin to ask some analytical and normative questions about their project, questions that Finnis’s scholarship has suggested and illuminated.

  Let us begin with the analytical. Judge Posner rests his argument in large measure on the notion that intended harms (however defined) and purely negligent harms are much the same because both involve the imposition of a risk of harm on someone else. In particular, the automobile driver and the spring gun operator, he says, are essentially indistinguishable. Both take actions that create some risk of harm, even though both hope that harm will not materialize. Whether any harm is intended is beside the point, “neither here nor there,” because the risk of the unhoped-for harm is just an inherent cost associated with performing two generally beneficial activities, driving and tulip growing.

  But we m
ight well question whether this line of analysis conflates two different things, hoping and intending. After all, as Finnis asks, can’t one “intend to achieve a certain result without desiring it to come about”? Can’t one “choose and intend to do what is utterly repugnant to one’s dominant feelings”? Consider the spring gun owner. We can all agree with Judge Posner that the garden owner may well hope everyone stays away from the trap he sets. But if he thinks that many will be deterred and only a few will come, then doesn’t he really intend to shoot those few? Isn’t the whole point of a spring gun deterrent that the owner intends to injure or kill those who ignore or test it, however repugnant that result may be to the owner’s hopes? In this way, doesn’t the spring gun owner intend to maim or kill, even if he may hope not to have to do so? And, having observed this much, can we really say the negligent driver is in the same position as the spring gun owner? After all, the negligent driver neither hopes nor intends to hurt anyone when he takes to the road. He may hurt someone by accident, but killing or maiming is simply not part of his plan or intent—either as a means or as an end. Any injury he might cause would be grounds for serious regret, not the fulfillment of any intention he harbors. In this way, the cases of the spring gun owner and the driver come to us in very different postures analytically—not at all indistinguishable as Judge Posner’s analysis would have us posit.

  A similar analytical question attends Williams’s effort to equate intent and knowledge or foresight. We might approach that question by asking whether it is really fair to say that Williams’s steward is guilty of an intentional killing. To be sure, the steward knew the spy would die; but did he intend that death? Or might there be, as Finnis suggests, a strong argument that Williams’s steward “did not intend to kill the spy, though he foresaw and accepted that his own choice would certainly bring about [the spy’s] death”? Indeed, might it be a fairer view of the facts that the spy’s “free-fall and death are side effects of the steward’s plan to destroy the…device” that might do harm to his country? After all, and for all we know from Williams’s hypothetical, if the steward could have destroyed the device without killing anyone he gladly would have done so.

  And this leads us to the real analytical question confronting Williams’s project: Is he right that no meaningful distinction exists between intent and foresight that the criminal law might recognize, at least sometimes? In answering this question, it is hard to do better than Finnis once did with this illustration:

  Those who wear shoes don’t intend to wear them out [even though they may foresee that as an inevitable consequence]. Those who fly the Atlantic foreseeing certain jetlag [likewise] don’t do so with the intention to get jetlag; those who drink too heavily rarely intend the hangover they know is certain. Those who habitually stutter foresee with certainty that their speech will create annoyance or anxiety, but do not intend those side effects. Indeed, we might well call [Williams’s] extended notion of [oblique] intent the Pseudo-Masochist Theory of Intention—for it holds that those who foresee that their actions will have painful effects on themselves intend those effects.

  Plainly, a meaningful analytical distinction does exist between intending and foreseeing a consequence. Recognizing exactly this, the Model Penal Code acknowledges that a line can and sometimes should be drawn in American criminal law “between a [person] who wills that a particular act or result take place and another who is merely willing that it should take place.” So, too, the Supreme Court, which has emphasized that, at least in the criminal law, the idea that “knowledge is sufficient to show intent is emphatically not the modern view.” Tellingly, even Williams himself ultimately conceded that in certain areas of law—treason, for example—society should require proof of intention rather than knowledge before imposing liability. Yet, Williams notably failed to explain why this should be so or how it might be reconciled with his claim elsewhere that the intent-knowledge distinction lacks force. His ambiguity and equivocation seem the product of a largely unexplored (if ultimately correct) intuition that, at least sometimes, intent does matter.

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  NOT ONLY DOES FINNIS help us see that the traditional intent-knowledge distinction in law bears analytical power overlooked by its critics. He also helps expose the undergirding normative reasons for the law’s traditional cognizance of intention. He reminds us, for example, that some of the law’s harshest punishments are often (and have long been) reserved for intentional wrongs precisely because to intend something is to endorse it as a matter of free will—and freely choosing something matters. Our intentional choices reflect and shape our character—who we are and who we wish to be—in a way that unintended or accidental consequences cannot. Our intentional choices define us. They last, remain as part of one’s will, one’s orientation toward the world. They differ qualitatively from consequences that happen accidentally, unintentionally. Intending to do a legal wrong to another person is something special because, as Finnis puts it,

  [t]o intend something is to choose it, either for its own sake or as a means; and to choose is to adopt a proposal (a proposal generated by and in one’s own deliberation). Once adopted, the proposal, together with the reasoning which in one’s deliberation made that proposal intelligently attractive, remains, persists, in one’s will, one’s disposition to act.

  This is a view that has long and deeply resonated through American and British jurisprudence, and indeed the Western tradition. It is precisely why the law treats the spring gun owner who maims or kills intentionally differently from the negligent driver whose conduct yields the same result. As Roscoe Pound once put it, our “substantive criminal law is,” at least at minimum, “based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong.” At bedrock, and whatever else it may require of citizens, our law rests on what Justice Robert Jackson called the “belief in freedom of the human will and [the] consequent ability and duty of the normal individual to choose between good and evil.” Finnis reminds us of the normative power lurking behind familiar precepts and proclamations like these.

  But there are still other normative justifications for the special emphasis the law places on intentional conduct. One has to do with human equality. When someone intends to harm another person, Finnis encourages us to remember, “[t]he reality and fulfillment of those others is radically subjected to one’s own reality and fulfillment, or to the reality and fulfillment of some other group of persons. In intending harm, one precisely makes their loss one’s gain, or the gain of some others; one to that extent uses them up, treats them as material, as a resource.” People, no less than material, become means to another’s end. To analyze Bird v. Holbrook as the challengers to extant law would have us, we ask merely whether superior collective social consequences are produced by ruling for the plaintiff or the defendant. On this account, there is nothing particularly special about the individual. Like any other input or good, it gives way whenever some competing and ostensibly more important collective social good is at stake. But it is exactly to prevent all this that the law has traditionally held, in both crime and tort, that one generally ought not choose or intend to harm another person, and that failing to observe this rule is a particularly grave wrong. This traditional rule “expresses and preserves each individual person’s…dignity…as an equal.” It recognizes that “to choose harm is the paradigmatic wrong; the exemplary instance of denial of right.” It stands as a bulwark against those who would allow the human individual to become nothing more than another commodity to be used up in aid of another’s (or others’) ends.

  Assigning legal liability based on intent can serve still other virtues. While Williams said that requiring a showing of intent rather than knowledge leads to unduly fine distinctions and too much leniency in criminal matters, lawmakers and courts have frequently found these distinctions necessary to avoid results they perceive as unjust. So, for
example, when it comes to attempt and conspiracy crimes, a showing of intent is often required to establish criminal liability, even though a lesser mens rea may suffice to establish liability for the same completed offense. And even when criminal liability attaches to the primary criminal offenders on a lesser mens rea showing, proof of intent is typically required to hold liable those only tangentially involved with the illegal enterprise as accessories. While, of course, legislators are free to vary these rules and sometimes have, these rules largely persist and are no doubt what the Supreme Court has called a product of “an intense individualism…root[ed] in American soil” willing to attach criminal sanction for actions just indirectly (or not at all) responsible for harm befalling others only if a choice to do wrong is present. Attention to the defendant’s intent can help address and prevent what Learned Hand once called a “drag net” effect of sweeping up “all those who have been associated in any degree whatever with the main offenders.” The intent requirement in attempt, accessory, and conspiracy law ensures that there is no criminal prosecution, for example, when a utility provides telephone service to a customer “knowing it is used for bookmaking” or “[a]n employee puts through a shipment in the course of his employment though he knows the shipment is illegal.” In this way, American law seeks to allow the liberty of normal commerce and communication between individuals without forcing them always to be on guard against Williams’s “oblique” intentions.

  In response to all this, one might imagine Judge Posner or Williams replying that all the doctrine of intent does could be done just as easily through a system that looks purely to social consequences. Or arguing that intent doctrine does, in some sense, serve to maximize collective social welfare because of the very features that distinguish it. But replies like these would, of course, only serve to demonstrate that the fine gradations of mens rea traditionally recognized in the common law are not beside the point (“neither here nor there”) as both Judge Posner and Williams have suggested (albeit in their own different ways). In this respect, an argument along these lines would be nearly self-defeating. Neither would responses like these answer the objection that the common law’s frequent focus on intent has meaning for the reasons the law has traditionally given (free will, equality, liberty)—reasons that seem to be justifiable on bases independent of any underlying social-welfare calculus. Nor would they address the objection that the common law’s stated reasons for focusing on intent are its true and accurate reasons—that the law possesses an integrity and deep logic to it. And they would do little to confront the argument that the law’s prohibition of intentional wrongs should sometimes trump even (and perhaps especially) when a utilitarian calculus suggests a different result.