Intention is a central concept in our system of criminal liability. And in recent years it has been much discussed, both by lawyers and philosophers. However, there remain disagreements, and some unclarity. My purpose in this paper is to examine, and propose solutions to, the main problems concerning the concept of intention in the criminal law.

Many political and moral theorists believe conceptual arguments about the nature of liberty, authority or power cannot be resolved independently of background normative theories. When this view is combined with the assumption that normative disputes are in some sense irresolvable—because, for example, reason fails us here—we have a partial account of the significance of controversy in moral and political argument. Controversy is significant because it is a manifestation of a deeper truth about reason and value. By contrast many would deny that controversy over such matters tells us anything important—it tells us merely what we already know, that disputants are stupid, self interested, in the thrall of an ideology, or informationally deprived.

Criminal law defences may be classified as either “justification” or “excuse”. A justification negates the wrongfulness of the conduct. The following are considered justifications: law enforcement, self-defence and lesser evils. An excuse, on the other hand, negates only the culpability of the actor for wrongful conduct. Under special circumstances, such as extreme pressure, it is considered unfair to blame the actor for the violation of the norm. Insanity and duress are typical excuses.

The first ten Amendments to the United States Constitution received final ratification on December 15, 1791. This year, then, marks the bicentenary of what is arguably the single most significant political event in my country’s history—the adoption of a Bill of Rights. So I write this essay in a celebratory spirit, to honor a most distinguished and influential U.S. Supreme Court Justice. Of the recently retired William J. Brennan, Jr.’s many outstanding contributions, his tireless promotion of human dignity as a preeminent legal principle stands out. Government should maintain and protect the dignity of those it serves, that the Constitution and Bill of Rights constitute nothing less than “a bold commitment by a people to the ideal of libertarian dignity protected through law”, are certainly attractive, even noble ideas. Yet, like so many abstract concepts, they are exasperatingly obscure.

The proper jurisdiction of lawful authority has always been a central issue in Anglo-American jurisprudence. English and American legal institutions both grew out of a seventeenth-century British culture that valued liberty, and sought to defend it legally by carefully defining the scope and purpose of lawful authority. Yet after 1776 the two nations diverged. This paper will evaluate English conceptions of legal authority from an American perspective. My thesis is that English lawyers discuss the authority of law in language developed to counter seventeenth- and eighteenth-century European revolutionary thought. British reactions to the English, American and French Republics preserved Hobbesian conceptions of legal authority that still influence common-law jurisprudence today, and mislead English-speaking lawyers who have adopted British terminology. I will suggest a more precise vocabulary, and use it to criticise certain positivist conceptions of the authority of law.

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

In the course of evolving an extensive theory of natural law, John Finnis declares that certain goods are self-evident. Among these basic values, the good of knowledge lends itself to a special argument—an argument directed against people who assail the ranking of knowledge as a good. Finnis maintains that anyone who seriously denies the goodness of truth or knowledge must contradict herself flagrantly in the act of putting forth her position. Skeptics therefore exclude themselves from participating genuinely in a debate over truth’s value. Although their self-disqualification never tout seul establishes the goodness of knowledge, it “should persuade the sceptic[s] to cut short idle doubting” (NLNR at 75; see also “Scepticism” at 267). Or so Finnis believes.