Terminating in the Body: Concerning Some Errors of Action and IntentionChristopher Tollefsen

I.

The New Natural Law theory offers a distinctive account of

the nature of intention and human action, and, accordingly,

of what aspects and consequences of a human agent’s

performance should be considered outside the intention

(praeter intentionem).1 In part, the distinctive features of

the account follow from a methodological decision to

consider human action from the perspective of the agent of

that action, or, as I have called it, the first-person

perspective.2 That methodological decision preceded, in the

1 The most thorough articulation and defense of the NNL theory of human action is to be found in John Finnis, Germain Grisez, and Joseph Boyle, “’Direct’ and ‘Indirect:’ A Reply to Critics of our Action Theory,” The Thomist 65 (2001): 1-44.2 Christopher Tollefsen, “Is A Purely First Person Account of Human Action Defensible?” Ethical Theory and Moral Practice 9 (2006), pp. 441-460. I think it is more accurate to refer to it as the first-person agential perspective.

theory’s genesis, but is fully consonant with, remarks made

by Pope Saint John Paul the Great in his Encyclical Veritatis

Splendor.3 There the Pope made clear that the morality of

certain kinds of acts, those picked out by so-called moral

absolutes, depends “primarily and fundamentally on the "object"

rationally chosen by the deliberate will.” But in order to “grasp the

object of an act which specifies that act morally, it is

therefore necessary to place oneself in the perspective of the acting

person (VS, 78).

This standpoint, it is perhaps not too obvious to note,

is the standpoint of an agent oriented towards action, and

thus towards what makes action possible: human goods,

aspects of human well-being that promise some potential

benefit. The NNL view, as is familiar, grounds all

practical deliberation in an apprehension of these basic

goods, an apprehension that it sees as foundational to

3 John Paul II, Encyclical Letter Veritatis Splendor, hereafter VS.

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practical reason, and not derived from any truths of

theoretical reason.4

All human action is thus carried out with a view to the

attainment of human good: we do not engage in human action

except insofar as we apprehend cognitively some possible

benefit, and recognize as well some way of realizing that

benefit through action. The recognized way might be quite

complex, a sequence of nested means that serve as proximate

ends ordered to a more distant end in which the benefit

sought will be found;

or it might be quite direct in the sense that an immediately

carried out action itself realizes a basic good.

The paradigm case of all fully human action involves

free choice. In such a case, the benefits offered by two or

more options (including the option of doing nothing) are

4 For general statements of the NNL view, see Germain Grisez, Joseph Boyle, and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal ofJurisprudence 32 (1987), 99-151. In this issues, E. Christian Brugger argues that the NNL refusal to derive normative fromtheoretical truths is both sound and true to the thought of St. Thomas: “St. Thomas’s Natural Law Theory,” National CatholicBioethics Quarterly.

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incommensurable. Each offers some aspect of good not

offered by the other; thus, a choice must be made. That

choice is neither caused by factors in the natural world,

nor is it caused by the goodness of the option chosen, as it

would be were that option best in every possible respect.

So it is free.5 As we shall see later, this has

consequences for what an agent may, and indeed must, know

about her own intentions.

The claims of the previous two paragraphs may be

articulated in terms of the notion of a proposal. What is

intended is what is proposed by the agent to him or herself

and chosen. The proposal, so understood, encompasses both

the end that the agent seeks, and all that the agent seeks

as desired in order to bring about the sought after end. A

fully formed proposal to travel somewhere, for example,

includes within it not just the end point, but also an

awareness of how the end point is to be attained: travelling

5 See, for a helpful account, Joseph Boyle, “Free Choice, Incommensurable Goods and the Self-Refutation of Determinism,” American Journal of Jurisprudence, 50 (2005), 139-163.

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to Dallas by driving from Columbia to Atlanta, then driving

from Atlanta to Birmingham, and so on. As the proposal

includes both the end and the nested sequence of means, so,

on the NNL account, does the intention.

Because the notion of a proposal specifies our

understanding of an agent’s intention, it likewise specifies

our understanding of the agent’s action. What is proposed

and chosen, and thus intended, is what is done by the agent

insofar as what is done is successful according to that

proposal. The nature of the action is determined by the

intention, and its reality is thus, like the reality of

intention itself, radically first personal and agential.

Neither what is intended nor what is done as a full human

action is a function of what merely happens, though

happenings consequential to, and even simultaneous with,

what is intended and done, are inevitable.

Put another way, while the proposal, and thus my

intention, and thus my action properly speaking, includes

everything that I take to be needful in order to achieve

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some benefit I set out to attain, the proposal, and hence

the intention, and hence the action, does not include many

states of affairs bound up with what I choose that are

nevertheless not needful for what I am pursuing. Such states

of affairs are accepted, if I go forward with implementing

my proposal; but they are neither chosen nor intended. For

example, and non-controversially: when my proposal is to

alleviate my toothache by taking ibuprofen, the proposal

does not include the inevitable brief experience of an upset

stomach that inevitably accompanies my taking the ibuprofen.

The upset stomach is not intended, but is rather accepted as

a side effect of my action.

The NNL theory rigorously maintains this first-personal

agential account in discriminating what is intended from

what is accepted as a side effect, even when what is

accepted is a foreseen consequence of what is done, as is

the upset stomach; even when it is an inevitable and

foreseen consequence of what is done, as are certain other

side effects to medical interventions; and even when it is

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an inevitable and foreseen accompaniment of what is done,

simultaneous with the doing. Inevitable and foreseen

stuttering, for example, accompanies the very thing the

speaking agent does – it is not a downstream causal

consequence. Yet it is not intended.

I may, of course, be held morally accountable for what

I have accepted, and am sometimes morally to blame for side

effects. But the distinction between what is intended and

what is accepted is crucial, on the NNL account, as on the

Pope’s account above, for the consideration of moral

absolutes. For what those absolutes in most cases rule out

is intentional damage to or destruction of, a basic good. It

is thus always and everywhere wrong, for example,

intentionally to kill an innocent human being. But the death

of such an innocent is not automatically recognized as

impermissible if it lies outside the agent’s intention and

is merely accepted as a side effect.6

6 See, for discussion of such absolute negative precepts, John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, D.C.: The Catholic University of America Press,1991).

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This theory of action and intention, here only briefly

described, but discussed and defended at much greater length

on many occasions by NNL theorists, has nevertheless been

subject to considerable criticism. The view is held by many

to be too first-personal, and to provide inadequate

“constraints” on what an agent intends, when her performance

will inevitably and foreseeably be accompanied or followed

by states of affairs in which individuals are harmed.7 To

give perhaps the most disputed example: NNL theorists have

held that it need be no part of a physician’s proposal, and

hence intention, to kill or harm the child whose head is

crushed to remove an obstetric obstruction threatening the

mother’s life. The proposal, and hence the intention, is to

change the dimensions of the child’s skull, in order to

remove the obstruction, so as to facilitate removal of the

child, so as to save the mother’s life. Critics, by

7 The most recent, and in many ways most competent such criticism has recently been that of Steven J. Jensen, “Causal Constraints on Intention: A Critique of Tollefsen onthe Phoenix Case,” National Catholic Bioethics Quarterly (2014), 273-293. I hope to respond to Jensen’s helpful article in the future.

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contrast, are likely to hold that crushing the skull of an

infant child “just is” killing, or harming, or mutilating

that child. The death, or the harm, in this case is simply

“too close” to what is done for it to be outside the

intention.8

Similar misgivings, and others, animate the recent

critiques of the NNL theory of action found in the special

issue of the National Catholic Bioethics Quarterly dedicated to

criticizing the NNL theory as a whole. This essay addresses

three of the articles in that issue. Those essays, by Steven

A. Long, Matthew O’Brien, and Fr. Kevin Flannery, SJ, as

well as a more recent essay by Edward Furton (in Ethics and

Medics), eventually converge on a variation of the

“closeness” criticism that I will address in the second part

of the paper. In the first part, I address three further

issues, raised, respectively, by Flannery, Long, and

O’Brien.

8 See, for example, Luke Gormally, “Intention and Side Effects: John Finnis and Elizabeth Anscombe,” in John Keown and Robert P. George, eds, Reason, Morality, and Law: The Philosophy of John Finnis (Oxford: Oxford University Press, 2013), 93-108.

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II.

Fr. Kevin Flannery’s essay begins with an account of how

“object” is used by Aquinas, and the bearing of this usage

on the topics of interior and exterior acts.9 He concludes

the discussion of his first three sections by showing that

for Aquinas, identifying the object of the act does not tell

us everything morally important about the act. This sets up

the critical fourth section of his essay in which Aquinas’s

view on this point is contrasted with Grisez’s: contrary to

Grisez’s view, writes Flannery, there “is no suggestion in

ST 2-2. 64.7 that an act of killing in self-defense is licit

9 Rev. Kevin Flannery, SJ, “Thomas Aquinas and the New Natural Law Theory on the Object of the Human Act,” National Catholic Bioethics Quarterly, 13 (2013), 79-104. It is perhaps worth differences in the approach taken to the concept of the “object” of the human act by the NNL thinkers. Grisez writes, as noted by Flannery, that he thinks Aquinas’s use of the term “neither clear nor coherent;” Boyle eschews the concept, and with it the interior-exterior act distinction, in favor of more straightforward language of means and ends.By contrast, Finnis argues that St. Thomas’s use is, despiteappearances, coherent. See John M. Finnis, “Intention and Objects,” in Collected Papers vol. II, Intention and Identity (Oxford: Oxford University Press, 2011), 152-172.

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simply because the death of the assailant is not within the

self-defender’s choice or intention” (Flannery, 2013, p.

90).

This point is repeated several times: in his discussion

of active per accidens scandal (in which the scandal is not

intended): “Aquinas’s remark implies the contrary [of

Grisez’s view]: there is a sin – indeed a serious sin – in

which the agent’s choice, the interior object of the will,

is aimed at something quite different from that which (in

active per se scandal) gives the act its species” (Flannery,

2013, p. 92); in his discussion of sacrilege, where his

response to Grisez is that “The moral character of the act

itself is not determined simply by looking to that which is

intended (or chosen)” (Flannery, 2013, p. 93); and in his

discussion of craniotomy: “Since, according to Grisez’s

analysis, the moral significance of the act depends wholly

upon what, according to his theory, is chosen…” (Flannery,

2013, p. 94).

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Why does Flannery spend so much time on this point?

Apparently in response to Grisez’s claim that “Moral

responsibility is to be found first and foremost in one’s

choosing.”10 But (a) “first and foremost” simply does not

mean “determined solely by;” And (b), in the very same

section from which the offending claim of Grisez’s comes,

Grisez writes that “We are responsible for more than just

what we aim at and choose” (Grisez, 1983, p. 239). And

indeed, in the very paragraph from which Flannery quotes,

Grisez says “one bears responsibility for foreseen side-

effects,” a passage that Flannery also quotes (Grisez, 1993,

239). Finally, (c) the claim that moral responsibility is

to be found first and foremost in one’s choosing is, in

itself, a staple claim of Catholic moral thought.11 For it 10 Germain Grisez, The Way of the Lord, Vol. 1, Christian Moral Principles (Chicago: Franciscan Herald, 1983), p. 239.11 See, for example, John Paul II, Encyclical Letter Veritatis Splendor, no. 79: “The primary and decisive element for moral judgment is the object of the human act, which establishes whether it is capable of being ordered to the good and to the ultimate end, which is God.” Flannery notes (p. 88) that for Grisez, “‘proposal adopted for choice’ has more or less the same meaning as Aquinas’s expression ‘the object of an action.’” So it seems Grisez and Pope John Paul II are

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is our choices that in the first instance shape us as the

people we are, people whose lives are lived in accordance

with God’s plan, or not. So Flannery’s argument seems

directed against a claim not made by Grisez, and indeed

denied by him; while the claim that Grisez does make appears

to be on solid ground.

Steven A. Long asserts of the NNL theory that it is “no

improvement whatsoever” over proportionalism and

consequentialism save in the fact that it “piously obscures

the enormity of the derogation of the moral law that it

represents.” It is further “deceptive”, and its errors

“seismic in their gravity.”12 Underlying these claims is

Long’s belief that the NNL countenances, as an account of an

agent’s choice, whatever he might say about it, and that it

“becomes enough that one seeks a good end” (Long, 2013,

124).

making exactly the same point here.12 Steven A. Long, “Fundamental Errors of the New Natural Law Theory,” National Catholic Bioethics Quarterly, 13 (2013), 105-131, p. 130.

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Accordingly, Long holds, the NNLT fails to recognize

that an action that, in his words, “terminates in the body”

of an innocent human person “in such a way as to harm or

destroy” that person, ought not to be considered “indirect”

(Long, 2013, 126). Or, as Furton puts it, “The central moral

question, as I understand it, is whether it is possible to

directly strike the body of an innocent person, and so cause

that person injury or death, without intending to cause the

injury or death.”13 “Terminating in,” and “directly

striking” are descriptions here, in the order of nature, of

natural causality. It is the fact that my axe, or sword, or

scalpel, or, no doubt, bullet, comes directly and lethally

into contact with your body that is thought to be definitive

by Long, Furton, and many others. For in such cases, the

lethality is part of the “integral nature and per se effects

of the action chosen” (Long, 2013, 124). They thus

constitute direct killing.

13 Edward Furton, “Tollefsen on the Phoenix Case,” Ethics and Medics 39 (2014), 3-4, p. 3.

14

As will be clear from my summary on the NNL view in

Part I, the NNL theorists deny that the “integral nature and

per se effects” of an action considered in the order of natural

causality, are determinative of the nature of the action

considered in the order of the will, that is, in the order which

reason introduces into the acts of the will.14 And why

should it be? In the paradigm case of intentional action,

will, a rational appetite, is responsive to the judgments of

reason, a spiritual power, and a particular course of action

is chosen under the description that made it attractive to

reason. Of course, and again as noted above, insofar as

what is chosen is realized in action there will be many

other descriptions true of what happens, some of which will

be foreseen by the agent, some not. The reality of what

happens insofar as we act is far from under our full

control. But that is not to say that the reality of what we

judge and choose is not under our control, much less that

that reality could be determined by the shape of what

14 See Brugger, “St. Thomas’s Natural Law Theory,” for a discussion of Aquinas’s “four orders”

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happens in the world. That fails to do justice to the

nature of reason and will and spiritual powers.

Now none of this implies that in morally assessing the

permissibility of action it “becomes enough that one seeks a

good end.” What one chooses as a means and what one wills

as an end are willed by the agent together, and the willing

of each, end and means, is available for moral assessment.

One may not will death as an end, but the NNLT are well

known for their view that one may not will death as a means

either, and indeed, their view on this is quite a bit less

permissive than that of most Catholics who believe that

death my be willed as a means, by those with lawful

authority, for the bringing about of justice.

Nor is any of this to hold, as Long alleges, that an

agent may say whatever he likes about his choices, nor may

he describe them to himself as he wishes. More accurately:

while agents may say what they like, the saying makes

nothing so. Proposing, willing, and choosing are

realities, albeit spiritual realities. They do not get

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their shape from our wishes or self-rationalizations, nor

from what we might say about them. They cannot be

gerrymandered in the way that critics suggest. This is made

clear by the NNL theorists:

What counts for moral analysis is not what may or

may not be included in various descriptions that

might be given by observers, or even by acting

persons reflecting on what they have done, but

what is or is not included within a proposal

developed in deliberation for possible adoption by

choice. Only the truthful articulation of that

proposal can be a description that specifies an

act for the purposes of moral analysis.15

So the NNL make no claims to the rightness of what is

said. But they do make a claim about an agent’s awareness

of what she intends in choosing some course of action over

others: they claim that what is so chosen is necessarily

15 John Finnis, Germain Grisez, and Joseph Boyle, “’Direct’ and ‘Indirect:’ A Reply to Critics of our Action Theory,” The Thomist 65 (2001): 1-44, p. 29.

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knowingly chosen. Critics of the NNLT seem inclined to deny

this, as in the following passage from Michael Pakaluk:

What someone intends is not subjective but rather

objective.  Hence, he can be wrong about what he intends.

Hence, a person’s self-report about his own

intention may be mistaken, if he lacks self-

knowledge.  Indeed, the road to hell is paved with

subjectively good intentions.  The doctor who says

that he intended in administering the lethal dose

only to release the soul of the patient from

suffering also intended, actually, the direct

killing of an innocent human being.  In Miss

Anscombe’s example, Mr. Truman said that he

intended only to end the war and save lives but,

whatever he said, because of what he commanded to

be done, he thereby intended the killing of women

and children.16

16 Michael Pakaluk, “Some Simple Mistakes about Formal Cooperation,” Thomstica.net October 1, 2012, emphasis added. Available at: http://thomistica.net/commentary/2012/10/1/some-simple-

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There is some ambiguity here, for Pakaluk writes about what

the agent in question might say, and as noted, people can

say anything they like. The important question is whether

one must know what one is choosing, and intending, as one is

choosing and intending, and the answer must be affirmative if

we are indeed capable of making free choices. For choices are freely

made only if the agent has before her two possible proposals

for action – to do this for the sake of that, or the other,

for the sake of something else. Whatever is opaque to the

agent at the time of choosing simply is not available for

choosing by the agent; and correlatively whatever is chosen

must be chosen knowingly or it is not, after all, chosen.

So agents do know what they are choosing (and intending) as

they choose (and intend), even though they may, for a

variety of easily identifiable reasons, quickly forget,

confuse, or distort in their own recollections. And of

course, they may simply lie. The form of access to the

mistakes-about-formal-cooperation.html . 19

content of one’s choices envisaged by the NNL theory is not

a truth serum.

How should we think of that form of access, though?

Should it be conceived on the model of a looking at, as if

the act of will, the proposal, the intention – any aspect of

the agent’s choosing and acting – were interior acts to be

known through introspection?

This is a question raised by O’Brien in his interesting

essay; he holds that such a view would be mistaken, and

holds too, I think, that the NNL embrace of the first person

perspective commits it to some version of this error17.

Against this, he puts forth important claims by

Anscombe concerning the identity of what is intended,

chosen, and done, with what is observable to a third party.

But it seems to me that O’Brien overstates the distance

between Anscombe and the NNL theorists on this point.18

17 Matthew B. O’Brien, “Elizabeth Anscombe and the New Natural Lawyers on Intentional Action,” National Catholic BioethicsQuarterly, 13 (2013), 47-56.18 I address the issue, however, not insofar as it is a question of how close to or far from Anscombe the NNL theorists are; they do not claim her as an authority, but

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Anscombe asks early in Intention “how do we tell

someone’s intentions?”19 O’Brien notes that for Anscombe

“the greater number of the things you would say straight off

a man did or was doing [were you, say, observing him] will

be things he intends” (Anscombe, 2000, 8). Thus, to use her

example, if she is sitting in her chair writing, that will

typically be what anyone who is asked says that she is

doing, and in making that attribution, they are typically

also identifying her intention.

Why this convergence of intention, which earlier

described as a first personal reality, with what happens,

what can be seen? Surely it is because some part of what is

intended by an agent is typically some part of what is

visibly done by that agent. What the agent knows

practically, and without observation, is thus the very same

thing that can be observed and recognized by a third person:

that she is sitting and writing. To this extent, it would be

rather a source of ideas.19 G.E.M. Anscombe, Intention (Cambridge, MA: Harvard University Press, 2000), p. 7.

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problematic to hold that all intention was unobservable,

private, interior, an invisible “trying” to be inferred from

what happened publicly. Such a picture would be dualistic,

a charge which O’Brien has made elsewhere against the

NNLT.20

I do not think that the NNL theorists need deny this

convergence of first and third person for two reasons.

First, the convergence is in part a consequence of the

identity of the person and his or her organic bodily

existence. Actions are not the movements of bodies caused

by previous interior and logically independent intendings;

intention informs human action, which is the action of a

bodily human person. And second, human beings are social,

and their sociality has epistemic consequences: as mutual

20 Matthew B. O’Brien and Robert C. Koons, “Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory,” American Catholic Philosophical Quarterly 86 (2012): 655-703. I respond to this in Christopher Tollefsen, “Response to Koons and O’Brien’s ‘Objects of Intention’”, American Catholic Philosophical Quarterly, 87 (2013), 751-778. For extended,and helpful, criticism of the dualistic picture, see David Braine, The Human Person: Animal and Sprit (South Bend, IN: University of Notre Dame Press, 1993).

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participants in shared social forms, with a shared set of

concepts, human beings by and large understand what other

human beings are doing across a wide range of activities

just by looking.

But both the ontological and the epistemological

features that underlie the convergence are limited, and thus

the convergence is limited too. For, first, the social

conditions that underlie our epistemic access to what is

being done by way of shared social forms are far from

universal. It is natural for us to observe people intending

to score a basket, to plead with a judge, or to perform

heart surgery. But members of societies without these

practices will be unable to “see” these intentions in action

at all.

And second, the identity of human persons with their

bodily existence is likewise limited because of the

transcendence of the person to her organic bodily existence:

the person is both the same as and not reducible to the

organism that sits and writes. And as transcendent, there

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is more to the person than what was made fleshly in the acts

that realized what that person intended; indeed, there is

more to what was intended than what was made flesh in action.

Anscombe recognizes this last point in a way that makes

clear some of these limits of the convergence of first and

third personal:

Now it can easily seem that in general the

question what a man’s intentions are is only

authoritatively settled by him. One reason for

this is that in general we are interested, not

just in a man’s intention of doing what he does,

but in his intention in doing it, and this can very

often not be seen from seeing what he does.

Another is that in general the question whether he

intends to do what he does just does not arise

(because the answer is obvious); while if it does

arise, it is rather often settled by asking him.

And, finally, a man can form an intention which he

then does nothing to carry out, either because he

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is prevented or because he changes his mind…

(Anscombe, 2000, 9).

And Anscombe goes on to note that these phenomena can prompt

us to think of intention as a “purely interior thing,” to be

discovered by probing “the contents” of our minds. This

would be an error.

But I do not think that Finnis was making this

dualistic error in the passage cited by O’Brien to

demonstrate his divergence from Anscombe: “But the actions,

and the reasoning towards the choice(s) whose carrying out

is what human action centrally is, are complex and often

subtle. Transparent to a really clear-headed chooser, they

are for observers always more or less a matter of inference

or belief in testimony…”21 “Always more or less” seems

entirely in keeping with Anscombe’s point: we do, given

shared social forms, generally know what someone is doing by

21 John Finnis, “Introduction,” in Collected Essays, vol. 2, Intention and Identity (New York: Oxford University Press, 2011),13.

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observation but we almost never know the whole of what they

are doing simply by observation.

And of course, we can on occasion be quite wrong.

Consider as an example of a shared social form that makes

available generally non-inferential knowledge the possession

of common language. Often, perhaps typically, what an agent

intends to communicate can be known straight off without

inference by others who share that language. But not

always: irony and metaphor, for example, can stymie such

understanding, and the eventual recognition of what is

really being communicated can be precisely a matter of

inference or testimony.

Two final points should be made here. The first

returns to the issue of self-understanding and transparency.

The NNLT holds that, as Finnis says, intention is

transparent to a clear-headed chooser. As noted earlier,

this strikes many as objectionable, perhaps because

“transparency” is taken to conjure a privileged “looking

at,” a scrutinizing of the invisible contents of one’s mind.

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But this, I think, does not do justice to the nature of

first-personal awareness. Even when not spiritual, but

sensory, such awareness is not observational – a point

familiar to readers of Anscombe from her discussion of,

e.g., our knowledge of the position of our limbs. But in

some further cases, such first person awareness is not only

non-observational, but non-sensory and reflexive: we know

that we know without that act of knowing being a further

independent and interior act behind the initial knowing.

Such is also the case in the paradigm instance of intention,

what is freely chosen, for here we will that we will and

know that we will in a reflexive and non-observational way.

Our transparency to ourselves in such acts is not at all

like observational privileged access.

The second point concerns what may or may not be

inferred from the unity of first and third persons, to the

limited but real extent that that unity obtains. Why is

there this unity? Because in acting the agent realizes in

what she does her proposal for action. But for precisely

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this reason it would be a mistake to conclude that the unity

implies any inference in the other direction from the

“matter” or “nature” of what was done to the content of the

proposal or choice. For the proposal propositionally

identifies those aspects of a possible performance that

serve our end(s), and it is as that (or those) propositionally

identified aspect(s) – under that (or those) description(s) – that our

intention is realized in an event that admits of many more

descriptions. That intentions are realized in actions which are

public events in the world thus does not imply that

intentions are shaped, nolens volens, by public events in the

world.

Yet this is where O’Brien’s essay ends: “human agents

cannot act without choosing a concrete, particular kind of

means that is within their power to perform” (O’Brien, 2013,

56). And so the proposal to reduce a child’s skull is a

proposal which, given the state of the world and medical

science, must include the lethality of the reducing. It is

an observable third personal fact of the matter, against

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which the agent cannot protest. Here, an entirely

legitimate point about the convergence of the first and the

third personal standpoints starts to move in the wrong

direction, with the third-personal taking the reins. But

this, as I argued above, is to fail to reckon with both the

spiritual nature of intention, and with the way in which

intention shapes action. While intention is not divorced

from the third personal, it is transcendent to it, and not

at its mercy; and what happens is human action precisely

insofar as it is shaped by an agent’s proposal.

II.

Here we come, though, to the central worry of the various

critics, a worry the focal point of which is the concern

that the “intentionalist”, “logicalist” approach of the NNLT

justifies intentional killing of the innocent. Indeed, the

accusation that the NNL theorists are justifiers for baby-

killing lurks barely beneath the surface, as can be seen

from the following, by Long, the special issue’s editor:

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That New Natural Law Theory is now harmful to the

common good both of the Church and of civil

society insofar as its proponents oblige

themselves to justify, under the aegis of a false

account of intention, acts that are in fact

directly destructive to innocent life. This is an

account that is not only false, but false in such

a way as invites censure by the Church. One

wonders how many therapeutic abortions, how many

wrongful homicides of innocent children, must

occur under the erroneous account they propound —

an account in which whether an action directly

harms is merely a function of intention — before

that account will be finally corrected.22

22 Steven A. Long, “’Goods’ Without Normative Order to the Good Life, Happiness, or God: The New Natural Law Theory andthe Nostrum of Incommensurability,” Thomistica.net, September 18, 2011. Available on-line: http://thomistica.net/news/2011/9/18/goods-without-normative-order-to-the-good-life-happiness-or.html. Long’s view here might profitably be compared with Richard Doerflinger’s judgment on the role played by Germain Grisez in the pro-life movement. Speaking of Grisez’s book Abortion:The Myths, the Realities, and the Arguments (New York: Corpus Books,

30

Long’s essay in the special issue has the virtue of

making clear what the sticking point is: where an action

“terminates directly in an innocent so as to harm that

person,” then the agent must be understood to have chosen

that harm, regardless of her end, or her proposal for action

(Long, 2013, 128). As noted above, Furton puts the point in

a similar way: “The central moral question, as I understand

it, is whether it is possible to directly strike the body of

an innocent person, and so cause that person injury or

death, without intending to cause the injury or death”

(Furton, 2014, 3).

I will in this essay consider no specific cases. The

critics have in mind the NNLT’s views on craniotomy, and the

recent controversy over the Phoenix abortion case, but they

1970), Doerflinger writes “If any book in the pro-life movement deserves to be called prophetic, it must be this one… It is not much of an exaggeration to say that Germain Grisez's book put the intellectually respectable case for the pro-life position on the map.” Richard Doerflinger, “The Rational Case for Life,” available on-line: http://www.nrlc.org/archive/news/1998/NRL7.98/book.html.

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need not concern us here.23 It will suffice to address the

critics and their views philosophically. I intend to show

that their emphasis on “directly terminating in the body,”

or “directly striking” is entirely misplaced and makes no

good argument against the NNLT account of human action and

intention.

It is clear enough what these critics hope to

accomplish with this emphasis on “directly terminating in”

or “directly striking.” The dialectic here returns to the

problem of “closeness.” How ought we to identify just what

kinds of “closeness” are such as to render some aspect of an

agent’s behavior, or some consequence of what an agent does,

something that is intended by that agent? Long and Furton

are here attempting to identify at least some of what is

thus sufficiently “close” by means of the notion of

23 I address the Phoenix case at greater length in “Double Effect and Two Hard Cases in Medical Ethics,” American Catholic

Philosophical Quarterly, forthcoming 2015.32

“directness”, “directly terminating,” or “directly

striking.”24

In what follows, I argue that this strategy must fail:

“directly striking” and “directly terminating in” on their own

do not accurately identify the dividing line between what is

intended and what is accepted as a side effect in the

standard case of self-defense. So this core notion of Long

and Furton must be supplemented, and supplement they do: it

is directly striking, or terminating in the body of, the

innocent that they identify as the, or perhaps only a, form

of closeness that marks some feature of an agent’s

performance as intended. But, as I shall show, incorporation

of the notion of “innocence” into act analysis is both un-

Thomistic, and is philosophically deficient: in the end, it

renders their analysis viciously circular.

24 There are other attempts to demonstrate the meaning of “sufficiently close”; in this issue, Sherif Girgis criticizes Matthew O’Brien and Robert Koons’s claims that the nature of social practices can help to fix an agent’s intention in “Intent to Kill: Always Wrong?”, National Catholic Bioethics Quarterly.

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Let me begin the argument, then, with the following

well-known point. Aquinas believed that no private citizen

may ever permissibly intend the death of another person. I

will return below to the further Thomistic claim, that

public authorities, or their deputies, may intend the use of

lethal force on miscreants. For now, the point about

private citizens is the important one. Must private

citizens therefore refrain from defending themselves if they

are attacked? No: the critical passage is ST 2-2, 64.7.

There Aquinas notes that “nothing prevents there being two

effects of an action, only one of which is intended…So, the

act of self-defense can have two effects: one the preserving

of one’s own life; the other, the killing of the aggressor.”

This passage marks the beginning of Catholic moral

thought about the so-called “principle of double effect.”

And we should note that Aquinas’s concern is to argue that

the attacker may be prevented with a lethal response only if

the lethality is outside the defender’s intention. What

sort of defense might we envisage? Perhaps the defender has

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a long piece of piping with which he can, by striking

forcefully, repel the attack. Perhaps he has a powerful

waterhose, which by aiming at the attacker will repel him.

Perhaps he has a gun; shooting the attacker will repel him.

Let us suppose that in each case, the attacker will be

lethally harmed.

In each case, the defender’s act will certainly

“terminate directly” in, and “directly strike” the body of

the attacker. Yet the tradition equally certainly defends

the permissibility of such defense, even when the attacker’s

death can be foreseen. So a lethal act terminating directly

in the body of another, or an act of directly and lethally

striking another is not just as such an instance of intentional

killing. How can Long, or Furton, overcome this difficulty?

Their strategy, it seems, is to supplement their core

concepts with the concept of “innocence”: repeatedly, they

focus on actions directly terminating in, or directly

striking the bodies of, innocent persons. But this

supplement is inadequate to solve the problem, for some

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actions that appear to terminate in the body of, or

involving direct strikes upon, innocents also need not

involve an intention to kill those innocents.

“Innocent” in the natural law tradition has two

meanings, which might easily be confused. One meaning is

that the agent in question poses no threat (Long calls this

“performatively innocent”). The second meaning is that the

agent in question is morally innocent. Is it the case that

actions lethally terminating in the body of an innocent in

one or the other or even both senses must always involve

intentional killing? The answer is no.

Consider first the case of agents who pose a threat but

are morally innocent. The threat might come from a child,

strapped with explosives, or from a madman, unknowing of

what he does, or from a person whose bodily momentum, as a

result of an act over which he had no control, currently

propels him towards a possibly fatal collision with several

infants.

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This last agent is a threat because of his body and its

momentum. And so that threat may be responded to by

physical action intended to repel, thwart, or prevent, the

eventual and fatal collision his body’s momentum threatens.

He may be shoved, if he is close to hand and I am strong

enough; but equally he may also be struck with a long pipe,

shot with a gun, or blasted with a lethally strong blast of

hot water. The intention here is to save the children by

repelling his body, by means judged sufficient to repel,

even if they are also recognized to be lethal. His moral

innocence is irrelevant, and has no bearing on what I

intend.

Nor is it the case that actions terminating in the

bodies of those who are “performatively” innocent because

they pose no threat must involve intentional killing on

grounds that they are morally wicked. For the collateral

damage of a legitimate bombing campaign against enemy

military targets is damage done, albeit as a side effect, on

human beings entirely innocent in Long’s “performative”

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sense – even if some or all are not morally innocent or

indeed are quite wicked. But supposing, more realistically,

that at least the children are morally innocent, we here

have actions terminating lethally in the bodies of those who

are innocent in both senses that involve no intentional

killing.

We are thus in a bind: actions directly striking, or

terminating directly in the body of an innocent do not

necessarily involve an intention to harm those innocents.

What to do? One possibility would be to return to the

notions of “directly striking” and “terminating directly” to

see if further refinement might provide more adequate

analyses. So let us consider some possible ways of

restricting the meaning of these phrases. Consider what

it means to “directly strike” something. Perhaps my

counterexample of the strategic bomber misses the correct

sense of this phrase – after all, the strategic bomber is

aiming at the military installation, and not the bodies of

the citizens. Let us therefore adapt an example from

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Christian Brugger. A hostile terrorist might use an

entirely innocent – in both the moral and the performative

senses -- human being, a child perhaps, as a human shield,

while threatening, say, to shoot down an airliner. Shooting

through the innocent to get to the terrorist has, as its

side effect, the death of that innocent. Yet it seems an

example of directly striking and even aiming.25

Perhaps this example, however, fails to capture the

sense of “termination” in Long’s oft repeated phrase

“terminating in the body”, for my aim is that the bullet go

through the child to hit the terrorist, and not that it

terminate in the child’s body.

So let us consider the cases of those soldiers, of whom

there have been an extraordinarily and even awesomely high

number, who have fallen on a grenade in order to shield

25 Brugger’s example comes from Alien vs. Predator (not a court case). In this movie, an alien is incubating in the chest of a human who urges his comrade to “Kill it before it reaches the surface!” She takes aim at his chest and shoots, killing both her friend and the alien. See “Action,Intention and Self-Determination,” Vera Lex: Journal of the International Law Society, vol. 6, nos. 1-2 (Winter 2005), 79-106.

39

their comrades from its blast with their own bodies,

cognizant, of course, that they were headed for virtually

certain death. We may even look at a case in which the

grenade in question was not thrown by an enemy. Here is the

case, of William “Billy” McFadzean, as told by the Dictionary

of Ulster Biography:

As day was breaking on 1 July, he was preparing

his ammunition, which came packed in boxes. As he

was cutting the binding rope on one box, two

grenades fell out, and lost their pins – this

meant that they would explode within seconds, and

cause along with the other grenades an enormous

explosion which would have been devastating in the

combined space of a trench. A split-second

decision – McFadzean threw himself on top of the

box, thus absorbing almost all the blast, so much

so that only one other soldier was injured. In the

words of his VC citation in the London Gazette two

months later: 

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“The bombs exploded blowing him to pieces, but

only one other man was injured. He well knew his

danger, being himself a bomber, but without a

moment's hesitation he gave his life for his

comrades.”26 

Did McFadzean’s action “terminate in the body of an

innocent”? Surely the answer is yes, in any relevant sense

of the word, nor was there even an unjust aggressor in the

vicinity. Yet McFadzean is not to be condemned as a

suicide: his death, accepted with astonishing bravery, was

outside his intention, an intention which was to save his

friends by protecting them from the shrapnel by covering the

grenade with his own body to as to absorb into himself that

shrapnel. The case reveals clearly that the focus on

“directly terminating in the body of an innocent”, just like

“directly striking the body of an innocent”, is utterly

26 “William McFadzean, vc (1895-1916) soldier”, Dictionary of Ulster Biography. Available on-line: http://www.newulsterbiography.co.uk/index.php/home/viewPerson/1949

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misplaced and provides no adequate way to think about

intention.

Now if we go back to the original case of self-defense

against an unjust attacker as put forth by Aquinas, Long has

an alternative story about why a lethal intention is not

present in just self-defense. The story is illustrative of

some general differences between Long, Furton, and various

other critics, and the defenders of the NNLT. Long writes,

It is true that, as Aquinas teaches, where the

object is per se ordained to the end, the species

derived from the end is most formal and

containing. Thus, in just defensive action one

may harm an unjust assailant under the ratio of

warding off unjust assault, insofar as such harm

is the only proportionate means of defense.

In this passage, Long seems to reduce intention to a willing

of ends only, and to justify chosen harm as outside the

intention so long as the person harmed is not himself

innocent, in at least one, and possibly both senses of the

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term. Why? Because when one is engaging in just defensive

action against an unjust assailant, “the object is per se

ordained to the end, [and] the species [is] derived from the

end [and] is most formal and containing.” The good end of

saving oneself from unjust attack thus swallows up the

description of the means. Thus, Long justifies cases in

which “a deliberately and per se lethal means is chosen

because it alone is proportionate to the end of moderate

defense.”27 Put another way, where one’s killing is per se

ordered to just defense, one can, according to Long (and on

Long’s interpretation of St. Thomas) choose to kill.

Long’s analysis here mirrors his analysis of cases in

which his judgment is that immoral means have been adopted.

In those cases, what Long calls the “integral nature and per

se effects” of an action are not included in the intention

as “most formal and containing”, because their physical

character is not teleologically ordered towards their end –

towards what made it desirable to the agent to do the action

27 Steven A Long, The Teleological grammar of the Moral Act (Naples, FL: Sapientia Press of Ave Maria University, 2007), 50.

43

in question. We should note that for Long, this “integral

nature” or “the act itself” is something that stands apart

from the agent’s choice as available to be chosen, but not

constituted by that choice. The integral nature of the act

itself thus constitutes an external and objective constraint

on what an agent intends. Thus, if it is of the integral

and essential nature of an act that it be an instance of

poisoning, scraping, spearing, or crushing an innocent human

being, then, because such acts are per se ordered towards

death, insofar as they terminate directly in the body of the

innocent person, they may never be licitly done.

Long’s interpretation of Aquinas on self-defense is

crucial to his entire account, for self-defense is clearly

action that terminates directly in the body of another. If

that by itself suffices to render it intentional killing,

then Long must either abandon his emphasis on “terminating

directly,” or allow intentional killing in defense. Long’s

solution to the dilemma is to hold that for St. Thomas,

chosen killing of an unjust aggressor is not intended:

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intention is only of the end when the aggression is unjust,

and the end alone thus gives the moral species to the act of

defense.

This analysis does not accurately construe St. Thomas’s

position. Christian Brugger, in an essay to which Long has

not, to my knowledge, responded, has shown quite thoroughly

that it is an error to think that Aquinas, in his treatment

of permissible self-defense, and homicide more generally,

uses “intention” only to refer to what is pursued as an end.

For example: Aquinas defends the intentional killing of

criminals and exterior enemies by those with public

authority, for the killing is ordered to the public good.

As Brugger then argues,

…it is clear that this type of intentional killing

(which is the normative type for justifiable

intentional homicide throughout question 64) does

not conform to Long’s strict “per se instance of

human action.” If it did, the killing could not

be said to be intended, since it is willed as a

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means to the end of preserving the common good.

Yet Aquinas clearly calls the killing intended: “It

is not lawful for a man to intend killing a man in

self-defense except such as have public authority,

who while intending to kill a man in self-defense,

refer this to the public good (Aquinas, ST, II-II,

Q. 64, a 7). It must therefore be the case that

Aquinas means to include under his use of

intention in q. 64, a. 7 the willing of both ends

and means.28

And one can see the same point at work elsewhere in the

treatment of self-defense. In the first two objections,

Aquinas adverts to St. Augustine’s view that killing by a

private person in self-defense is impermissible. Aquinas’s

solution is that

The words quoted from Augustine refer to the case

where one man intends to kill another to save

28 E. Christian Brugger, “Praeter Intentionem in Aquinas and Issues in Bioethics,” in Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle (Dordrecht, the Netherlands: Springer Academic Press, 2011), 102-103.

46

himself from death. The passage quoted in the

Second Objection is to be understood in the same

sense. Hence he says pointedly, for the sake of these

things, whereby he indicates the intention.

Thus the authority of Augustine against the permissibility

of killing in self-defense is limited by holding that what

Augustine was ruling out was the defender’s intending to

kill in order to save his life – i.e., to kill as a means.

But this is precisely what Long believes St. Thomas allows.

His reliance on the authority of St. Thomas at this point is

thus an error.

Let us leave aside the question of the Thomistic bona

fides of Long’s view. A further problem is that the analysis

is circular. What we want to know is when an effect – the

death of a person – that would be immoral if intended, is

not intended, for if not intended, its immorality is not

guaranteed (though it might, as we saw in the discussion of

Flannery, still be morally impermissible). However, we

cannot give as an answer to that query: the death is not

47

intended when the lethal effect is part of a just defensive

action. There is the circularity, for we seek to know what is

intended as a preliminary to determining the justice of the

response.

Nor can the circle be eliminated by enlarging it, with

the claim that when a response is just, it is “per se

ordained to the end,” and the lethal effect thus praeter

intentionem in virtue of the end’s being “most formal and

containing.” The circle is still there, for it is the

justice of the response that is again determining what is

and is not intended. But perhaps the explanation goes in

the other direction: perhaps, when the means are per se

ordained to the end, then the means are praeter intentionem,

and, consequently, appropriate and just. This in fact appears

to be Long’s position. But then how do we determine which

means belong to this category and which do not?

There are two points to make about this issue. First,

what is meant by an action’s being “per se ordained to [its]

end”? Here we must turn to Long’s frequently made

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assertions about the “act’s integral nature.” Long holds

that a human action has its integral nature in some measure

independently of the agent’s proposal, and rather in virtue

of its “physical reality.” So an agent’s choice of an

action is in some respects like a choice of, say, an apple,

when offered more than one: it is a picking of something

that has a prior existence, with certain objective features

that make their mark upon the intention of the agent willy-

nilly. But what exactly is envisaged here? Actions do not

have such a prior reality; they are brought into being

through an agent’s intention and choice, as those are

realized in a performance undertaken by the agent.

But secondly, I think, it is in fact the concept of

“innocence” that does most of the heavy lifting when Long is

pushed to give an account of an act’s integral nature. When

the person in whom one’s lethal action terminates is

innocent, then the terminating action is not per se ordained to

its end, whatever that end might be, and the act’s integral

nature is to be an act of killing. But when the person in

49

whom the lethal action terminates is not innocent, then the

act undertaken becomes in itself an act per se ordained to

its end. Which is to say that when the lethal act is morally

justified, then it is not intended; and we are once again back to

the circle. Long’s view here seems to be an instance of the

approach to double effect strenuously criticized by Alison

McIntyre in her well-known essay Doing Away with Double Effect, in

which double effect reasoning is used after the fact to

justify moral judgments made on other grounds.29

This is not the approach of the NNLT. Its defenders

believe that intention is one thing, moral assessment

another. Thinking clearly about intention should not in

fact be guided by prior moral judgments, and McIntyre’s

judgment seems correct: if what is really doing the work is

not a judgment about intention but something else, then

intention, and with it double effect, should be jettisoned.

It is certainly questionable whether such an approach is

29 Alison McIntyre, “Doing Away with Double Effect,” Ethics 111 (2001), 219-255.

50

consistent with the Catholic tradition of moral thought, of

course.

I conclude, then, that the approach advocated by

defenders of the NNLT has not been impugned in the least by

the essays of its critics as assembled in the NCBQ and Ethics

and Medics.30

30 My thanks to Joseph Boyle and Ryan Anderson for helpful comments on earlier drafts.

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