In criminal law, intention functions as the concept whereby human actions, and the reasons for them, are understood in relation to a criminal system. If there is no law, then there can be no punishment; but what if there is law, what then? How are the actions of the accused supposed to be understood in relation to the criminal law? One is very much aware that the criminal law, as it is presently conducted, generally pits the smallness of an individual against the corporate greatness and might of the state. What ought to serve to balance these competing interests?
In any philosophical exploration one attempts to return to the source of the issue under scrutiny. In this exploration of intention the sources have been wide and varied and, at times, rare and difficult to obtain. There seem to be no clear and precise links from one moment of legal history to another. One is required to make educated guesses, thoughtful assumptions, and proffer what seem to be reasonable links from one epoch into the next. One reading of the sources suggests that intention is a volitive concept. Its beginnings as "malice aforethought" suggest that the accused had been moved to break the law (a law which was believed to have a moral foundation) because of his own disruption of character and moral disquietude. One did the deed, not thought the deed.
However, the violation of a law which had a moral foundation leads one to ask further questions about both law and morals. Law and morals have distinct spheres. Is it possible that there is a common link between the ability to break a social law, and the ability to break a moral law? From history one will remember how both Bracton and Fleta admitted how both spheres could surround a human act. At times the spheres overlap, and at other times they are separate. Common, however, to each sphere is the ability and capacity of mankind to move within those spheres. This leads into the old and common effort to inquire into the nature of mankind.
Without doubt, it is true that mankind possesses a nature. Whether that nature can be deciphered, decoded, and put into well defined, nonambiguous sets of linguistic propositions has been and is the rub. Historic modes of thought about human nature identified two broad differences: intellect and will. For centuries these broad conceptual differences seemed to take on concrete forms of their own. One's will and intellect seemed to be reified in moral and theological writings, as if each were possessed of its own distinct identity, acting for its own distinct ends. Added to this reification of will and intellect, one further distinction was set forth that something about man's nature put him into both a world of matter (mass and extension) and of spirit (energy and infinitude). Could any more contradictory sets of postulates have been integrated into a growing legal system?
Crawford, J. M.B. and Quinn, John F.
"The Limits of Intention in the Common Law,"
University of Dayton Law Review: Vol. 8:
2, Article 3.
Available at: https://ecommons.udayton.edu/udlr/vol8/iss2/3