Intent, like remorse, is irrelevant to causality.
The purpose of this short essay is to offer my disagreement with Stephan Kinsella & Patrick Tinsley’s use of the terms ‘intent’ and ‘aggression’ as it is applied to the process of restitution. Within the article “Causation and Aggression” of the Quarterly Journal of Austrian Economics, Kinsella and Tinsley stress the position that intent is a qualifier for aggression i.e. there can be no causation within property right violations unless there is intention.
The thesis of “Causation and Aggression” can be summed up in the following quote,
In the context of legal analysis, one important praxeological doctrine is the distinction between action and mere behavior. The difference between action and behavior boils down to intent. Action is an individual’s intentional intervention in the physical world, via certain selected means, with the purpose of attaining a state of affairs that is preferable to the conditions that would prevail in the absence of the action. Mere behavior, by contrast, is a person’s physical movements that are not undertaken intentionally and that do not manifest any purpose, plan, or design. Mere behavior cannot be aggression; aggression must be deliberate, it must be an action. (p. 97)
This article argues that intent, like remorse, is irrelevant to restitution. By default, intent, like any other subjective value judgment (for example remorse) should play the role of a restitution discount variable determined by the victim of an aggressive act, not the arbitration company. Therefore, the job of the arbitration company is to delineate the aggressor within the chain of causality and rule on the real costs of a causal act. The only way in which intent is not determined by the victim of the aggression is if said intent is outsourced to the arbitration company by the victim. Yet, even under this scenario intention should still only play the role of discounting restitution not escalating it. Furthermore, it will be argued that Kinsella and Tinsley fail to distinguish between the praxeological concept of an action, purposeful behavior versus an impulsive behavior, and the concept of an act.
Certainly for the field of praxeology, action involves intent — purpose — in order to be classified as an act from the vantage point of the actor. Yet, intent, itself, is an empty concept when dealing from the reference point of a previous act. Therefore, an act, be it impulsive or purposeful, is capable of causing external harm, even though only purposeful behavior may be classified as action in the praxeological sense. The confusion arises when causality is defined only by action and not the act itself. Let’s look at an example involving my hand and a slap in the face. Here are the four possibilities involving intentional action and behavior.
- My intent was to slap you in the face, and I slapped you in the face
- My intention was to slap you in the face, but I missed
- An impulse caused me to slap you in the face
- An impulse caused me to swing my hand while missing your face
Thus, under scenarios (1) and (3) your face was slapped; but only in scenario (1) was my intent to do so. Under scenarios (2) and (4), your face is not slapped but in scenario (2) I wanted it to be. Yet, in either scenario (1) or (3) what is it about the concept of “intent” that eases the physical pain from the slap? Though it may be true that a flood of apologies may help to alleviate the embarrassment or physiological pain associate with the slap, but it may also be true that such apologies do not alleviate such embarrassment or physiological pain. There is only one individual who can make such a calculation, the victim. It is the victim who decides if such measures conducted by the aggressor, after the slap, would serve to distinguish the aggressor’s intent and if such a distinction will diminish the costs incurred.
The point is that the victim of the slap may be less likely to pursue restitution, or even a lesser amount of restitution, if the slapper tries to make amends with the victim by showing it was not their intention to commit the act, but whether this atonement takes place or not is separate from the fact that the act took place, and, as will be argued below, should be separate from the arbitrators ruling on restitution.
Many criminals feel remorse for the damage they’ve committed to their victims, but this too is separate from the act they committed. Therefore, either the intent or the remorse of an act may play a role in the punishment of the act, but that role is not, by default, for an arbitrator to decide. It is for the victim to decide. The arbitration company should judge on the cause of the act as well as the restitution based on real costs incurred at which point the victim will decide if such rulings should be minimized because of the role of intent.
Kinsella and Tinsley would make the argument that it is because of such skewed interests of the victim that there is need for an arbitration company to decipher intent,
As legal theorists, therefore, we cannot accept an entirely mechanistic picture of the world. Legal theorizing is concerned with the ethical implications of action. (p. 98)
Yet, the simple fact that the victim may have a skewed view upon intent is irrelevant because said intent would play no role from the viewpoint of the arbitrator. Arbitration companies, by default, should rule strictly on the product of aggression i.e. the outcome of the actual act. Again, it is up the victim to decide if intent will play a role in the arbitration process but that role is limited strictly to a restitution-discount variable, not a qualifier for additional restitution. Next our essay will deal with the second portion of the previous quote.
To hold someone responsible for the consequences of his actions is implicitly to invoke the two-fold concept of causality expressed above. For there even to be consequences in the first place, the physical world must be governed by time-invariant causal relations. And to hold an actor responsible for those consequences, we must determine that they can be traced back to his own deliberate use of means to achieve a desired result: his “action” cannot itself be a merely mechanical response to physical stimuli; he is the author, or “cause,” of the results achieved. (p. 98)
To deal with this quote let’s use the analogy incorporated by Kinsella and Tinsley of the mail deliveryman who delivers a bomb.
Consider the following case in which an aggressor employs an innocent human as one of his means. A terrorist builds a letter-bomb and mails it to his intended victim via courier. The courier has no idea that the package he is delivering contains a lethal device. When the addressee dies in an explosion after he opens the package, whom should we hold responsible? The obvious answer is: the terrorist. Why not the courier? After all, the courier is causally connected to the killing. But because he did not know he was carrying a bomb, he did not have the intent to aggress against the victim. Instead, he was connected to the killing only as a means. When the bomb exploded, it was the terrorist’s action, not the courier’s that was completed. The courier simply handed over a letter. The terrorist, by contrast, intentionally used means — the bomb materials, but also the unwitting courier — to cause his victim’s death. (p. 102)
The argument is thus that since various individuals are within the casual chain it must be the role of intent that assigns causation. Again, intent is beside the point. If it was the intent of the terrorist to kill and the intent of the mailman to kill and the intent of the victim to commit suicide it wouldn’t mean that causality would then be equally partitioned. Causality would default to the last will that employed means of the suicide; the other two members were simply levels within the structure of production. Within the analogy offered by Kinsella and Tinsley, the mailman and the victim are said to be removed from the chain of causation because it was not within their intent. We will sidestep the scenario where the mailman insures his packages for anything fragile, perishable, liquid or potentially hazardous. Yet, the terrorist is the aggressor not because of his intent but because he plays the highest role in causality. Neither evil intent nor negligence increases or decreases his role in causality because arbitrary judgments like intent are simply preferences. It of course may be argued that preferences are demonstrated by action, but praxeology, or praxeological law is not concerned with preferences and value judgments themselves, we are only concerned with action. This is where the confusion resides. Kinsella and Tinsley believe they are making an argument that you must have action (not impulsive behavior) in order to have causality and since intention/purpose is what defines action from behavior, intention is what defines causality. This author believes this to be wrong. Causality defines aggression, and it is the job of the arbitration company (if they wish to stay in business) to assign proper weights within the chain of causality and then assign restitution based on those weights. It is not the arbitrators decision to question why someone’s acts or to discern the fine line that separates impulse from purposeful behavior.
Therefore, it is probably always within the interests of the defendants’ legal representative to make the case that it was not the intention of the defendant to commit said aggression, the same way it is within their interest to demonstrate remorse for said aggression, but the case should be made, by default, to the victim or their immediate representative, not to the arbitrator. If the victim then wishes to discount the sentence by some percentage based on the case made by the defendant than all is well. Indeed, it may be in the interest of the victim to discount such rulings in order to show sympathy so that they too may receive a discounted sentence if they ever find the roles reversed, but to simply say, by default, intention is a factor of arbitration ruling of restitution is like saying remorse is a factor of restitution. Neither can be made from any other point of reference but the victim.
Rulings on intent are of course irrelevant to any individual who believes the intent to be real. This person may seek a restraining order or additional protection regardless of the judge’s ruling. Certainly some arbitration companies may offer to remove the services of deciphering intent for their customers, and insurance/protection agencies may even decide that this is best for their clients, but the right cannot be waived a priori.
In conclusion, though it is not within the scope of this article to deal with the variety of scenarios one can imagine, and surely some of those scenarios will complicate matters by involving governmental chains of command, I will offer one example in order to anticipate such an initial response.
Let the scenario be, a woman shoots a man through his ear, though she most likely intended to kill him. Surely intention should play a role in this situation; otherwise the individual is merely suing for medical damages to repair his ear correct? Yet, like all property violations, the offense can either be classified as theft or trespassing and the form of theft or trespassing may carry with it various weights of restitution. Given this, it is supercilious to believe that one may sue for restitution on the level of murder when there was no murder, the same way you would not expect a life insurance company to pay out an insurance claim for someone who is paralyzed. Therefore, unless it is contracted somewhere that injuries from bullets carry more weight than other injuries, we must accept that restitution will only be on the level of an ear injury coupled with whatever mental health costs associated with the aggression. We would hope that in a free society voluntary associations would punish such breeches of social interaction by various forms of shunning and blacklisting as well as an increase in the insurance premiums of the aggressor. But, regardless, we know that the victim will increase their personal protection due to their belief in such intent and their protection agencies will undoubtedly want to keep a closer eye on the former aggressor.
Kinsella, Stephan and Patrick Tinsley. “Causation and Aggression.” The Quarterly Journal of Austrian Economics vol. 7, no. 4 (Winter 2004): 97–112.