Intention and crime

The general question of criminality is not an entirely puzzling one. For example, most people would agree that murder is a crime, that theft is a crime, and so on. This is pretty universal opinion.

However, we find much less uniformity on more precise questions, such as punishment and redemption, or what exactly makes a crime. Does having a bad intention make a crime more or less punishable ? The proponents of the notion of “hate crime” would say yes. But that does not seem very reasonable.

Libertarian justice

First, we must consider the libertarian maxim : the government should only regulate against force or fraud.

What does this mean ? This is obvious to see in the case of murder : to kill someone is to use force against that person. To steal money from someone’s bank account is a fraud. To use force or fraud implies a lack of agreement from all sides.

But obviously more is needed, since one can extract agreement at gunpoint. That does not mean that the action is not force. Therefore we must detail our definition by saying that regulation is necessary in cases which do not involve voluntary agreement from all sides.

What this maximizes is choice. I have already discussed the Choice Criteria as a basis for politics. Any notion of rational justice must therefore be based on punishing actions enforced without choice. This is our basis for justice.

With this basic premise, we can now discuss the question of intention theoretically. Is the content of one’s mind metaphysically relevant, that is, does what we think have a direct incidence on our actions, or the rest of reality in general ? To this we must obviously answer no. Our intentions have nothing to do with the nature or result of our actions. Rather, it is agreement, not intention, which is important.

Yet to say that intention is irrelevant seems to open a whole new can of worms. There are, after all, such things as accidents, and attempts to harm people. These two opposite limit cases would seem to undermine our case for libertarian justice.

The facts of the matter, as it turns out, are more complex than a simple black-and-white proposition. Take the case of car accidents, for example. Whatever the intention of a driver is, one must be conscious that driving a car is a heavy responsability. One is responsible for his own mistakes, and whenever one’s intentions are good or bad does not change this. Hitting a pedestrian in a completely accidental situation is still the responsability of the driver, and he must be punished accordingly.

This brings me to the notion of rational expectation. Let me illustrate this with an example. According to Quebec civil law (and probably the majority of such systems), if there is a tree on your property and it falls on the car of a neighbour, you’re responsible. However, if the event has happened not due to negligeance but rather because of natural phenomenons such as a demential wind or frost, the owner is not held responsible because it was not the result of his actions – we could not expect the tree to fall off, and the event was unexpected. Of course, that’s what insurance is for.

A system of law based on rational expectation would be much the same in distinguishing the spheres of responsability of each individual. Whenever the owner of the tree wanted or expected the tree to fall is not relevant here : what is relevant is what we should rationally expect from such a situation. One does not expect a healthy, intact tree to spontaneously fall on a car.

The idea that intention is unimportant nullifies completely any justification of the war on terrorism, since the vast majority of the people targeted have indeed not used any force in the context of terrorism, but rather are supporting it.

Prosecuting terrorist intentions

Even if the tree owner wanted the neighbour’s car to be wasted, he is not to be held automatically responsible. The same would be true of any other intention. If I threaten someone over the Internet of killing him, I have no means of doing so. If I then accidentally run over him by coincidence, no one would claim that my evil intent makes me guilty of murder ! It was a sad coincidence, not a murder.

When discussing this, I am thinking about the war against terrorism specifically. The idea that intention is unimportant nullifies completely any justification of the war on terrorism, since the vast majority of the people targeted have indeed not used any force in the context of terrorism, but rather are supporting it. Since this seems, at first glance, controversial, I have sought to establish a firm basis for my premises.

It is interesting to consider how most people would agree that the notion of “hate crimes”, for example, is fallacious. A crime is not better or worse because the criminal did it to extract some sort of racist revenge, or because he was angry for other reasons. We would agree that to prosecute on intention in this case is irrelevant and unjust.

It would seem the only difference between the two is that we hate terrorism more. However some would argue that because someone gives resources to criminals, such as other terrorists, this is a contribution to the existence of the crime itself, while a hate thought is not a contribution to the crime. That is, the person is actually taking action in accordance with his intention, and even if this action is perfectly voluntary, the mere fact of being oriented towards a criminal goal is enough to make it criminal.

Yet this is a direct attack on the notion of personal responsability. If one cannot accuse someone of desiring to kill somebody else, how does another voluntary action make the intention any more criminal ? This assumption is difficult to defend. If we say that it should be prevented because it is propitious to crime, then we are engaged on a slippery slope. The role of law enforcment is to stop criminals, not to stop people’s voluntary actions in the name of influencing crime – otherwise we might as well censor all the media and even communication. This might be attractive for power-hungry bureaucrats, but it is hardly a rational basis for law enforcment !

No, there are a few real criminals that are responsible for the World Trade Center’s destruction, and they were all killed in the impact of the planes. Bin Laden and his cronies are not a guilty party to these attacks. To claim that financing terrorism is a terrorist attack is as absurd as claiming that an American soldier killing enemies is not fully responsible for pulling the trigger, or that the employee that dumps chemical products in a river in the name of a corporation is not fully responsible for his actions.

Of course I realize that for the average American and his politicians, this war is beneficial. To the people, revenge is finally acquired, in a video-game-war way – they get to see the corpses of their own children and the children of their enemies. So their thirst for blood is satisfied. On the other hand, politicians get to point the finger at “terrorists”, a term that they define and enforce themselves, get to condemn and kill them with shadowy, military tribunals, pass laws against the right to privacy, and generally expand government as much as they want – and get unanimous support for it.