The Fatal Flaw of New Natural Law Action Theory Steven J. Jensen THIS ARTICLE aims to diagnose the fatal flaw of new natural law action theory. Several commentators have claimed that new natural law action theorists are prone to make convenient redescriptions of actions, justifying actions that would otherwise be deemed immoral.1 Craniotomies, for instance, are redescribed as narrowing the baby’s head; blowing up a spelunker is described not as killing him but as dispersing his parts; shooting someone with a gun in self-defense is described not as harming him but simply as stopping the attack; performing a D&C on a live baby is described not as killing the baby but as ending the pregnancy.2 [End Page 543] The real issue with new natural law action theory, however, is not redescriptions. Indeed, its advocates will insist that they are not redescribing actions but simply identifying their correct descriptions. The real issue runs deeper. Any penchant for peculiar descriptions arises from the fatal flaw of focusing upon intending effects rather than intending actions; all intention of action (according to new natural law advocates) is only secondary, reduced to some intention of an effect. For reasons that will become clear, this starting point places a premium upon descriptions rather than upon concrete realities. I may have missed the mark when, in a recent article, I made the following comment: “The new natural law action theory . . . is not necessarily prone to fanciful redescriptions of actions. It has no fatal flaw that leads its proponents to come up with original descriptions. Rather, the theory simply leaves open the possibility.”3 To the contrary, new natural law theorists begin with a paradigm that leads to error. So fundamental is this paradigm to their vision that they cannot imagine giving a priority to the intention of actions as opposed to the intention of effects. Their paradigm not only prevents them from reaching the correct answers; from the beginning, it prevents them from asking the right question. In a recent article, for instance, Lawrence Masek aims to discover what effect (or effects) agents intend while acting.4 Similarly, Patrick Lee has published an article focusing upon what effects are intended and what effects are foreseen.5 Already we have a problem. We do speak, loosely, of intending effects. Most properly, however, we intend actions and not merely effects. According to new natural law action theory, however, the order is inverted: most properly, we intend effects [End Page 544] and only in a secondary way do we intend actions. The advocates of new natural law invoke what they have come to call a strict definition of intention, opposed to what they call broad accounts of intention. As Masek explains the matter, “The strict definition applies to effects, not actions.”6 He does admit that we can speak of intending actions, but he is not concerned to provide a definition of this usage of the word “intend.” A strict definition of intention is integral to new natural law action theory. Indeed, the criticisms in this article most properly apply to the strict definition itself, rather than to a specific overall theory. New natural law action theory is the most prominent view that affirms a strict definition of intention, but someone (Masek may fall into this category) who adopts the strict definition without fully endorsing new natural law action theory still falls victim to the fatal flaw examined here. For convenience, we will henceforth give the label “rigorists” to those who defend a strict definition of intention. This paper targets all rigorists and not just new natural law action theorists. Patrick Lee also defends a strict definition, but his focus upon effects (rather than actions) is less explicit. Even for Lee, however, actions are entirely reduced to the intention of effects.7 Once we have determined the effects intended, we then know exactly what action is intended. The intention of actions is only an afterthought. Other rigorists, such as Christopher Tollefsen, express this doctrine by saying that we intend states of affairs.8 Whatever these are, they are not actions (although they may include actions in abstract form). Of course, the emphasis upon effects...
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Dec 21, 2022
Axel Hägerström 
Open Access
