As recent controversies show, moral judgment requires asking if people deserve punishment for harms they inflict without meaning to.
Deal with people according to their deeds [acti rei] and not according to their words [verba]. Yet deeds are not worth the intentions which inspire them; therefore each man shall be judged according to this intentions [mens rea] and not according to his deeds.
The Book of the Thousand Nights and One Night, rendered into English from the Literal and Complete French Translation of Dr. J.C. Mardrus, by Powys Mathers, Volume I, Routledge & Kegan Paul, 1964, 1972, 1986, p.429; the Latin glosses, of course, are not in the Arabic original.
Actus non facit reum, nisi mens sit rea.
The act does not make guilt [reum], unless there is a guilty [rea] mind.
Legal Maxim -- i.e. no crime without criminal intent.
The Path to Hell is paved with good intentions.
L'enfer est plein de bonnes volontés et désirs.
Hell is full of good wishes and desires.
Bernard of Clairvaux (1090-1153)
Que l'intention juge nos actions
Nous ne pouvons être tenus au-delà de nos forces et de nos moyens. À cette cause, parce que les effects et exécutions ne sont aucunement en notre puissance, et qu'il n'y a rien en bon escient en notre puissance, que la volonté: en celle-là se fondent par nécessité, et s'établissent toutes les règles du devoir de l'homme.
That our actions should be judged by our intentions
We cannot be held responsible beyond our strength and means, since the resulting events are quite outside of our control and, in fact, we have power over nothing except our will; which is the basis upon which all rules concerning man's duty must of necessity be founded.
Michel de Montaigne, Essays, I:vii [1580, translated by J.M. Cohen, Penguin, 1958, 1993, p.25; French text, Essais de Michel de Montaigne, Livre premier, Édition présentée, établie et annotée, par Emmanuel Naya, Éditions Gallimard, 2009, p.151]
Paul Bloom is neither an academic philosopher nor a law professor, but he is "The Brooks and Suzanne Ragen Professor of Psychology" at Yale University. His article in The Wall Street Journal doesn't seem to be promoting a book, and it isn't reviewing a book, but it just looks like a response to recent events in the "cancel culture," where people have been fired from the jobs or purged from public life after the discovery of youthful indescretions or for perfectly harmless, and often truthful, public or even private recent statements. The motive for much of this business is a vicious totalitarian mindset that wishes to regulate the innocent language of everyone and, especially, to silence political opposition.
But, actually, it is worse than that. The logical distinction between "use" and "mention" is now always ignored. A Klansman who uses the "N-word" because he hates black people is one thing. A law professor who mentions the "N-word" because he is quoting someone who used it, or wishes to discuss the word itself, as part of a legal examination of bigotry, racism, or freedom of speech, is something else. But this difference now doesn't matter; and the professor will likely be treated by the "cancel" mob as though he were a Klansman, meriting condemnation, sanction, or firing. Yet the definite and unambiguous use of the word by a character played by Quentin Tarantino in Pulp Fiction , as in similar cases in other movies, is let pass without condemnation or even comment -- unlike the authentic period language in Mark Twain's Huckleberry Finn . It is all a triumph of ignorance, folly, dishonesty, and malice -- typically from college graduates.
Bloom chooses to treat all this as more of a philosophical or psychological problem about intent. That is fine, but his treatment is flawed. That is no particular fault of his, since much of modern ethics in this area is confused.
His treatment really got my attention when he said this:
There are two main considerations that we take into account when something [sic] has done wrong -- the intent of the actor and the outcome of the action.
Although Bloom mentions the "action," this leaves out the action as a feature that is an intermediate step between the internal intent of the agent and the external outcome that is then generated by the action. Actions in themselves in the history of ethics can bear a distinct category of value judgment, i.e. whether they are "right or wrong." I have examined this in detail elsewhere, but here I reproduce an abbreviated table of the "Value Structure of Action":
|Source of Action,|
|Means, Μέσα||Ends, Τέλη|
Means to Ends
Ends of Action
The difference between these features is well illustrated with an example that Bloom uses himself. There is nothing morally wrong about a peanut butter and jelly sandwitch. It is perfectly innocent. However, if it is eaten by a child or person with a peanut allergy, it can be deadly. Bloom considers what must be an unusual case, where a woman makes such a sandwich for a child, knowing he is allergic, and in fact hoping to kill him. If the child does die, this will be first degree murder. But, Bloom stipulates, if she is mistaken about the allergy, and the sandwich has no effect on him, this is still, in some fashion, wrongful, but it is not murder.
Notice that there are indeed three variables here. The woman can be innocently making a sandwich. There is no intrinsic rightness or wrongness about the sandwich or the act of making it -- although, to those who like them, peanut butter and jelly sandwiches may be regarded as "good." Or she can know about the allergy and have a criminal intent. That is the reason why she makes the sandwich. The sandwich may or may be be harmful, for reasons that have nothing to do with the value of the sandwich in itself, but only because of the effect it may have on another. Just as chocolate is poisonous for dogs and cats. Finally, there is the effect that it does have on the child, who, with an allergy, can be harmed and endangered, or who, without an allergy, will enjoy the sandwich and run away.
Bloom does not make the relevant distinction between moral and legal culpability. Morality moves from the intention to the action. Law moves the other way, from the act to the intent. If the child has no allergy and is unharmed, nothing has happened in the eyes of the law. The woman's intent is a harmless squib. Morally, however, the failure of the act to do harm is irrelevant. In Christian theology, the woman warrants damnation for meaning and seeking to kill the child. She has already sinned in her mind and her heart. Bloom simply says, "It's awful, but not as awful as murder." To the law, yes. But the woman might find eternal damnation fairly awful. Of course, she presumably will have time to repent and save herself, if she becomes sensible of her sin.
Making this merely a matter of degree exposes the failure of Bloom to discern important distinctions. This is characteristic of his treatment and serves, like ignoring the moral status of actions, to leave much of his discussion muddled and incomplete. And the distinction between law and morality is fairly important, especially if it is the difference between heaven and hell -- although I seriously that Paul Bloom himself worries about heaven or hell. But from the title of Bloom's article, "When Intentions Don't Matter," we might wonder if Bloom has an agenda, or at least an axe to grind.
Something else that Bloom misses is the question of knowledge. If the woman is making a peanut butter and jelly sandwich for the child, and the child is allergic to peanut butter, how does the woman know? Bloom stipulates that the woman is a "Mrs. Smith" who is making the sandwich for "your child." Now, if you have entrusted your child to Mrs. Smith for his lunch, it is your job to inform her that the child has a peanut allergy; and any conscientious parent would do that as a matter of course. Thus, Mrs. Smith will not just "think," as Bloom says, that the child has an allergy. She will have been told. If she nevertheless makes the deadly sandwich, she will either be a forgetful and incompetent fool (i.e. Joe Biden), or she will have criminal intent; and the law will have no difficulty assigning criminal blame to her.
If Mrs. Smith is making the sandwich without your knowledge, because she gives food to neighborhood children playing near her house, and she "thinks" the child has an allergy because of a rumor in the neighborhood, assigning blame may be a little more difficult. A prosecutor would need to show that the child's allergy is a little more than a matter of a rumor, but is actually common knowledge, and is common knowledge because "you," the parent, have made sure that neighbors know of it. Also, a prosecutor would want to have some kind of idea why Mrs. Smith wants the child dead. Perhaps the neighborhood children disturb her sleep or damage her flowerbeds. Evidence for this would be that Mrs. Smith occasionally shouts at children in her yard. Bloom doesn't consider why Mrs. Smith would be homicidal. The sorts of things that do anger old people, and not just old women, in neighborhoods with children running around, are not uncommon -- this happened to me as a child, with a particular neighbor -- and a rumor about peanut allergies woud be circulating no less easily than rumors, or intelligence, about bad tempered old people.
On the question of knowledge, Bloom overlooks the legal issue of negligence. Innocent or well meaning intentions are irrelevant if you do wrong but should have known better. If "you" left your child with Mrs. Smith for lunch, without telling her that the child has a peanut allergy, this would be negligent. Bloom considers what would happen if "Mrs. Smith is unaware of the allergy and kills your child by mistake." He says that she "might still be charged with a criminal offense." On what grounds? We are not told. In the absence of intention, negligence would be the only reasonable ground for such an action, and the issue then becomes how Mrs. Smith should have known better. Bloom does add, reasonably, that "she presumably would be racked with guilt." A Catholic could be formally absolved; and if the woman needs more to resolve her guild, religion provides the remedy of penance. This will come up again.
For his thesis, "When Intentions Don't Matter," Bloom asserts, truthfully:
There is a logic to this: Intentions are hard to infer and easy to lie about. Outcomes are observable by third parties and can form the basis of impartial judgment. And outcomes -- the death of a child, a ruined laptop -- are what matter.
But Bloom thus all but dismisses, not only the intrinsic rightness or wrongness of actions, but the moral valence of intention. Only outcomes matter. This is a strong and a harsh claim, ignoring both ethical and legal issues. But I'm sure that Bloom would be gratified to know that it is consistent with a principle stated by Niccolò Machiavelli, that "In all men's acts, and in those of princes most especially, it is the result that renders the verdict when there is no court of appeal." Perhaps Bloom is known to his colleagues at Yale as "the Machiavellian."
Indeed, it’s likely that we worry so much about intentions only because they are clues to future outcomes. If you intended to knock over my coffee, it raises the chances that you might do it again -- or worse -- in the future. But even in the absence of malice, we should attend to bad outcomes. If you get sick from undercooked meat at a restaurant, you probably don’t want to return, regardless of the chef’s good intentions.
If your colleague wanted to knock over your coffee, of course you should worry that he might make a habit of it. Either he doesn't like you, doesn't like anyone, or is trying to be a loveable prankster without understanding prudent limits for that sort of thing.
On the other hand, if you get sick from eating at the restaurant, the issue of negligence arises. And "undercooked meat" is not likely to be the issue. Stanley Tucci shows us a raw beef appetizer and a very, very rare steak in Florentine cooking. People go for it -- I had a girlfriend once who advised me not to order steak well done. The issue is whether the meat is contaminated, which can happen in the restaurant, or can be due to the supplier. Public health officials will want to know. The chef's, or the restauranteur's, intentions are quite germane to that. Either they are negligent, and their kitchen dirty, or they will be desperate to know how they were supplied with tainted meat. Bloom doesn't consider such issues. He simply proceeds with his argument of disparaging intentions. Whether you will want to return to the restaurant will depend on a number of things, including your history with the place. And if you think you got sick just because the meat was "undercooked," you need to improve your knowledge of food.
Bloom says, "So it’s not surprising that outcome-focus is a natural default." Really? "Natural default"? Nothing of the sort. Since Bloom isn't a philosopher or a lawyer, he resorts to psychology:
In studies that have been replicated numerous times, the developmental psychologist Jean Piaget found that younger children weigh outcome more than intent. For instance, if you tell 4-year-olds about someone who accidentally breaks 15 cups and someone else who purposefully breaks one, they’ll say, unlike adults, that the first child is naughtier.
Although not a lawyer, Bloom does quote "English jurist William Blackstone" later. But the relevant point here is that Blackstone explains the incompetence of children as due to "imbecility of judgment." However, we can discern what is at play in Piaget's example. A child who "accidentally" breaks 15 cups is clearly careless, and this raises the very adult issue of negligence, if not competence. Even the children discern carelessness. On the other hand, if a child "purposefully" breaks just one, we would want to know why; and, of course, it might be for reasons that are understandable or forgiveable. Thus, if we don't know the circumstances, Bloom proves nothing with this.
From psychology, Bloom then wants to move to some kind of "cross-cultural" evidence. Bloom says that, according to "Harvard evolutionary biologist" Joseph Henrich, "people in other cultures care less than Americans do about whether or not the acts were done on purpose, at least when it came to judging the actions of strangers." According to this Henrich:
Intentions, beliefs and personal dispositions are so central to [Western] moral judgments that the idea that people in other societies judge others based mostly or entirely on what they did -- the outcome -- violates their strong intuition that mental states are primary. But putting relatively little importance on mental states is probably how most people would have made moral judgments of strangers over most of the last 10 millennia. [bracketed word by Bloom]
Clearly, neither Henrich nor Bloom have read the passage from The Thousand and One Nights that is the first epigraph on this page. Nor would they be familiar with the Buddhist study of intention and mental states. Nor can we expect that they would know about Confucian ethics, where the consequences of action are irrelevant to moral judgment, which is why in the table above "benevolence," , and "right," , are important Confucian terms, but "good," , isn't. Confucianism is positively hostile to outcomes that are , "profitable" or "of advantage." But perhaps it doesn't count when Confucianism has only been around for about 2500 years, and not the 10,000 about which Henrich and Bloom seem to be informed. And, finally, we might wonder how the questions are asked in Henrich's studies, where there might be the same problems as with the studies of children.
We also note that Henrich, like Bloom, appears to drop out the moral status of actions in themselves from between intentions and outcomes. They will not understand Confucianism in those terms; but then, as we often find with people like this, "other cultures" often means for them what they want it to mean, without the troublesome burden of actually learning much about the cultures.
Now Bloom is able to exult that, "Even in American law, intention is often ignored." And we might begin to wonder where this all is headed. Disparaging intent may be Bloom's away of justifying the malice and evils of the "cancel culture," where intention is irrelevant. If so, then Bloom himself suffers from "imbecility of judgment," and from a corrupt motive.
You can get a ticket for speeding even if you sincerely believe that you were driving under the limit. In some states, you can go to prison for statutory rape even if you were deceived about the person’s age. This sort of “strict liability” is even more common outside of criminal law.
However, a speeding ticket is not part of "criminal law." Unless there are aggravating factors, it is neither a felony nor a misdemeanor, but only an "infraction." But if the speed limit is not posted with the frequency required by law, or if the speed limit does not match what is appropriate to the design of the highway, the ticket can be challenged. When jurisdictions make it much easier to "pay the fine" than to attend the (inconventiently scheduled or located) traffic court sessions, which then involve long waits and harried judges, one may suspect that the interest of the jurisdiction in revenue is more important than the fair treatment of citizens. This is often how what is supposedly "our" government serves us.
As for statutory rape, the charges against the producers of the pornographic movies made by Traci Lords, when she was undersage, were dismissed when it turned out that her fake ID was good enough to deceive the United States Government. She was issued a passport. As for the "I didn't know she was a statue" defense, a law that doesn't take good faith beliefs into account is defective. No crime without criminal intent. Apparently not a concern for Paul Bloom.
If a company makes a power tool, for instance, it is typically responsible for any harm it causes due to defective manufacture, regardless of their intent, caution, due diligence or anything else. Someone has to carry the risk, after all.
No, it is not "typically responsible," unless there is negligence -- although there is certainly a movement for "strict liability," i.e. ignoring intention and even "due diligence," in such liability cases. Yet Bloom even stipulates "defective manufacture," which implies negligence. But Bloom has forgotten that the ancient legal principle "to carry the risk" was expressed as caveat emptor, "Buyer beware." If Bloom wants to go back to what operated "the last 10 millennia," he should remember that. The idea now of caveat vendor, "Seller beware," is a modern innovation.
Bloom progresses to fractured philosophy:
Why are we concerned about intention in some cases but not others? One consideration is deterrence. If I know that I’m going to be punished even for innocent mistakes, I’ll be more cautious.
The problem is that for many "innocent mistakes," there can be no deterrence if the agent cannot have known better. You can only be deterred if you can discern that you are about to do something wrong or dangerous. If you know about that, there is already a legal remedy: Negligence. But Bloom carelessly tosses that together with cases were intention and knowledge are apparently irrelevant. "Being more cautious" implies that something could have been done to know better, but Bloom is actually saying that is irrelevant.
From that Bloom moves on to complain about some of the basic protections of civil rights.
A second consideration involves intuitions about what matters the most. Are you most concerned about miscreants getting away with bad acts? Then focus on outcomes and increase the risk of punishing the innocent. Worried about unjust punishment? Then let people off if they can make a convincing case that their act was accidental, accepting that this means that some guilty actors will get away.
So Bloom has a problem with this? But our legal system excuses the guilty even when there is damning evidence against them. If evidence is obtained through an illegal search, or if a confession is obtained without Miranda warnings, or by denying a request for a lawyer, then the evidence is excluded as corrupt. So a bit more is involved that just protecting the innocent. The idea of excluding corrupt evidence is to protect the public from misconduct by police and prosecutors. This actually does not go nearly far enough. Confessions are often obtained through lies and coercion, and then juries don't believe that defendants would confess to something they didn't do. But it happens. It does not sound like Bloom is going to worry about that.
So it is not a matter is excusing the guilty if they can cook up "a convincing case that their act was accidental." Such a defense is essential for the cause of justice, just because it can mean that the defendant is innocent, not that he has just been "let off," as though he were really guilty. A concern of Paul Bloom? Perhaps not.
I have colleagues who believe that it’s better that 10 innocent students suffer than one plagiarist go free.
I hope that the innocent students sue the school. But Bloom doesn't favor us with his own view or practice about this. Has Bloom falsely accused students of plagiarism?
Take the scene in “The Godfather” where Vito Corleone is in intense negotiations with other mobsters, and he says that if anything were to happen to his son -- accidentally killed by a police officer, hangs himself in his cell, struck by lightning, plane falls from the sky -- he will take vengeance on the other men in the room. This threat reflects the great value he puts on the safety of his son and the relatively low concern he has about fairness toward the other mob leaders. And it nicely aligns everyone’s incentives.
So Paul Bloom takes criminal gangland threats as morally exemplary. Remarkable -- and apparently important enough for Bloom's worldview that an image from The Godfather is included with the Wall Street Journal article. There's Marlon Brando. And, of course, if his son is struck by lightning and killed, no amount of Vito's vengeance on other gangsters has a chance of effecting their behavior in the future. Lightning, as Michel de Montaigne might remind us, is outside anyone's control. But Vito's vengeance will start a gang war.
Next, Bloom moves on to a kind of issue that raises important additional questions.
For certain types of violations, we are particularly prone to ignore intention. In an intriguing series of studies, the neuroscientists Liane Young and Rebecca Saxe found that accidental taboo acts, such as incest, are treated almost as harshly as intentional ones. You might forgive Oedipus for bumping into the table and soaking your laptop with coffee, but he doesn’t get as much of a pass for accidentally sleeping with his mother.
The morality of taboo turns out to be distinct in all sorts of ways from the morality of harm to people and property.
What Bloom doesn't seem to know about is what a violation of a "taboo" causes in ancient religion. That is pollution. Intention is irrelevant because, as Euthyphro says to Socrates, "The Pollution is the same," ἴσον γὰρ τὸ μίασμα γίγνεται. Thus, if you trip and fall into a mud puddle, you will need to clean off the mud, regardless of your intention, your negligence, or anything. Religious pollution is like mud. Guilt, as in the case of Oedipus, is irrelevant.
However, Oedipus is a bad example for Bloom. When he inquired of an oracle, as the King of Thebes, about the bad events that were afflicting the city, he was authoritatively warned to leave it alone. He ignored that warning, which meant disobeying the god of the oracle. That involves the sin of "hybris," ὕβρις, which is offending the gods. This is characteristically the failing of Greek tragic heroes which brings about their fall.
So sleeping with his mother, having previously killed his father, has effects for Oedipus that are more like collateral damage. And for such things there would be a remedy: Penance. Hera drove Heracles mad, and he killed his wife and children. That wasn't his fault. But he did penance anyway, to expiate the pollution that infected him from the acts. If you were exposed to the plague, you need to be quarantined. Guilt, fault, intention -- these don't make any difference.
Bloom turns to psychology again, and not to the history or philosophy of religion, saying that the judgement of "taboos":
...rests on different brain areas. Even the most progressive and well-educated individuals are subject to the psychology of taboo, of drawing lines that separate the pure from the impure. It is no accident that many of the cases in which such individuals dismiss people’s intentions have to do with sex and race.
In other words, we judge the "pure from the impure," not because of what they mean or how they fit into religious value, but because "my brain made me do it." And apparently, in judgments about "sex and race," my brain made me do it again. Where this sort of thing would lead in Bloom's deterministic psychology, we don't hear about any further.
He says instead:
In the end, there is nothing so surprising about our occasional dismissal of intent. It fits our psychological propensities, and in some circumstances, it can make the world better.
Having really said nothing that motivates "our occasional dismissal of intent," but attributing it to "our psychological propensities," we nevertheless get the surprising conclusion that "it can make the world better," which I suppose is what we are supposed to conclude about the malice of "cancel culture."
I'm not sure how that follows from what Bloom says next:
Yet I agree with Bret Stephens about the cruelty of ignoring intention.
But, of course, it is not just cruel; it is unjust, vicious, and, in politics, tyrannical.
The law can be, and often should be, utilitarian; it can ignore intent in cases where a focus on outcome is more efficient and better satisfies certain goals.
"Utilitarian" is a word that otherwise does not occur in Bloom's discussion. Utilitarianism does focus, exclusively, on outcome, which is why in origin, with Jeremy Bentham, it notoriously rejected the idea of human rights. Utilitarians have been trying to walk that back with some kind of sophistries ever since. Here, one might wonder why a value for the law would be what is "efficient" rather than, say, what is just. But we actually don't hear about justice from Paul Bloom. There probably aren't classes about it in Bloom's psychology department.
But punishment and shaming in everyday life involve different considerations, and there is more room for kindness and generosity.
"Punishment and shaming" in the law should be matters of justice. Since Bloom gives no consideration to that, we then would wonder what "different considerations" would motivate "kindness and generosity" in "everyday life." One might think that mercy would also be a feature of justice, but then Bloom has left that behind.
We take intention into account, after all, for people we care about. For them, we are sensitive to nuance and purpose and inclined to give second chances. Zero-tolerance is something we reserve for strangers and enemies, either personal or political. Part of this might just be a desire to harm them, a delight in seeing them fired and humiliated. But deeper considerations are also at work. We don’t trust those we don’t like, and so we dismiss their stated intentions; we are more comfortable thinking of their suffering as instrumental, helping us to satisfy broader goals of deterrence; we find it easier in such cases to be swayed by the psychology of taboo.
This is heavy with Bloom's psychology; but special consideration for "people we care about" is innocent of relevant issues from philosophy, law, or religion. If "we don't trust those we don't like," this is not a maxim that would pass muster with any moralists. You must ask why you don't like them. Just because they are strangers? That is nowhere near morally edifying. And then Bloom's references to "deterrence" or "taboo" don't help when his treatment of those matters is defective.
And so, in the end, the argument for caring about intention is an argument for charity -- for treating a stranger or even an enemy like someone we care about.
No, the argument for caring about intention is the argument for justice and righteousness. You don't need to treat a stranger or, certainly, an enemy as someone you care about, but you do owe to them behavior that is right and proper. They have natural human rights, which ought to be respected. This doesn't seem to come up in Bloom's analysis.
It is possible that even here outcome will trump intent, particularly if someone is guilty of a string of past offenses. But charity should incline us to be more willing to take other considerations into account. And there might even be some selfish advantage in contributing to a culture of greater kindness. If you are the one to make an awful mistake, you might have a chance to redeem yourself by explaining that the harm you caused was truly not what you wished for.
I'm not sure what this even adds up to. Bloom suggests that "outcome" may override justice, righteousness, and compassion. All that stands against such wrongful action, apparently, is "charity." That may be no more than a "crushed reed" upon which to rely; and, of course, it has no moral force behind it, unless we accept the imperative of "Thou shalt love thy neighbour as thyself," [Matthew 22:39]. But perhaps, without the Gospel, self-interest will do. If you give others a break, they might let you argue your way out of your own "mistake" with the protestation of good intentions. That sounds sort of Biblical also. "Do onto others"...something, something.
So maybe Bloom isn't for the cancel culture afterall. There seems little doubt that the victims of cancellation are deeply hated by the vindictive fascist mob. There is certainty no charity or compassion, let alone righeousness, involved. The mob wants the lives of its victims destroyed. But lack of charity is the least of the sin in such persons. Unfortunately, Bloom's whole argument in all this is muddled, fragmentary, and ill informed. And since almost all of it is a disparagement of intention, he seems rather confused if there is some thin qualification to his conclusion, relying on nothing more than "charity."
Morality, Justice, and Judicial Moralism