Response to Hart’s “Intention and Punishment”

Hart says that if we don’t want X to happen, doing Y will probably lead to X, and we do Y, we should be held responsible for X regardless.  When I read this passage, the first thing that came to my mind was war.  When an army bombs an enemy battalion planted inside an urban area, civilians often die, as well.  The army calls these deaths “collateral damage” and says they are regrettable but not morally wrong.  Hart’s theory, however, seems to implicate the military in such a circumstance.  If it knew that a bomb would also destroy surrounding houses, it also must have known injuries to innocents would be very probable.  Thus, the bomber is responsible for these consequences.

The general consensus among ethicists, however, seems to be that soldiers, while causally responsible for these deaths, are not legally or morally responsible for them.  According to the General Sherman school of thought, war is hell, and we shouldn’t wring our hands worrying about collateral damage to innocents.  Thus, even if the bomber is responsible, there should be no legal ramifications for his actions because war is a naturally lawless state.  Even the Geneva Conventions, the most respected international law with respect to war, accept collateral damage if it is proportionate to the importance of the military mission.  As for the moral argument, the Catholic Church allows collateral damage provided that the action is not intrinsically evil, the damage to innocents is not intended for a certain effect, and the collateral damage is proportionate to the success of the mission.  Thus, in the case of war, ethicists make exceptions for probable but undesired consequences.  I would be interested to hear Hart’s take on the matter.

The matter of damage to civilians is more controversial when we apply Hart’s idea to the indiscriminate bombings of cities employed in World War II, most memorably the atomic bombs dropped on Hiroshima and Nagasaki.  In these cases, the United States deliberately killed thousands of civilians in order to achieve the desired outcome, the surrender of Japan.  The Catholic Church condemned the bombings on the grounds that it used the death of innocents as a means to justify an end, even though the end was good.  There is still controversy about whether the bombings retroactively followed the Geneva Conventions.  The strongest argument in favor of the bombings follows the General Sherman line: dropping the bomb was the only way to end the war.  The action satisfies a utilitarian calculus, at least.  According to Hart’s theory, the United States would be guilty.  It has, of course, has never faced legal action for the bombings.

I agree with Hart’s argument that a criminal should not receive a lesser sentence for an attempted crime than he would for a committed crime.  Hart does not buttress his case with moral arguments, but if he wished, he could mention Immanuel Kant.  To Kant, intention determines the moral rectitude of an action, so a failed murder is just as bad as a successful one.

Hart suspects that the disparity of sentencing between murder and attempted murder has two causes: many jurists still base sentencing on the ancient principle of “an eye for an eye,” and the family of a living victim does not have the same desire for retribution as the family of a dead victim, so they won’t fight the cases as hard.  I agree on both counts.  Hart’s view on this matter is counterintuitive, but with respect to deterrence, it makes the most sense.  Superman always stopped Lex Luthor before his plans could come to fruition, ironically making it easier for Lex to get out of jail and continue his villainy.  In the comic book world, this was frustrating; in the real world, this should never happen.

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