1 H. L. A. Hart characterizes the distinction thus: an oblique intention refers to the ‘mere foresight of consequences’, whereas in the case of direct intention ‘the consequences must have been contemplated by the accused not merely as a foreseen outcome but as an end which he set out to achieve or as a means to an end, or constituted at least part of his reason for doing what he did’ (‘Intention and Punishment’, The Oxford Review, no. 4, Hilary Term, 1967, pp. 10–11).

2 One of the best-known papers in this regard is Bennett's, Jonathan ‘Whatever the Consequences’, Analysis, vol. 26, 1966, pp. 83–102.CrossRefGoogle Scholar

3 Hart, op. cit., p. 13.Google Scholar

4 Ibid., pp. 13–14.

5 Unless, of course, one wished to argue that there was such a thing as moral murder, and that not all cases of moral murder were cases of legal murder. One could then argue that a distinction between intention and foresight was germane to moral murder, even if not to legal murder. In this way, even if both of our doctors were guilty of legal murder, one would not be guilty of moral murder, and a difference between his goodness and that of the other doctor would thereby be established. What counts as moral murder, what the necessary and sufficient conditions are for an act to amount to moral murder, I shall not go into.

6 London, Faber and Faber, 1958.

7 Ibid., p. 286.

8 For an attempt by a defender of DDE to come to grips with this problem, see]. S.J., Ford ‘The Morality of Obliteration Bombing’, Theological Studies, vol. 5, 1944, 261–309.Google Scholar

9 In this vein, it should perhaps be mentioned that there is also point to the remark that one ought to have foreseen the likelihood of certain consequences coming to pass.

10 Director of Public Prosecutions v. Smith [1961] A.C. 290. Driving a car containing stolen property, Smith was told to pull over by a policeman, whereupon Smith accelerated and drove away, with the policeman clinging to the car. The car hit three others, after which the policeman fell off, directly in front of a fourth, and received fatal injuries. In essence, three things were at issue in the Smith case: (a) the maxim that a man intends the natural and probable consequences of his act, (b) the maxim (law) that if a man intentionally inflicts grievous bodily harm, then if death results, he is guilty of murder, and (c) objective and subjective tests of intention. It was agreed by all that Smith did not directly intend to kill the policeman, but as a result of the objective test of intention, the jury (in the court of first instance) was instructed that it could reasonably consider Smith to have had this intention, since a reasonable man would in the circumstances have foreseen the likelihood of grievous bodily harm befalling the policeman. (This anomaly brought out another peculiar aspect to the case: while everyone agreed that Smith did not directly intend to kill the policeman, they were also agreed that Smith did intend to shake the policeman from the car, and drove in such a way as to bring this about; and if the maxim that one is guilty of murder if the intentional infliction of grievous bodily harm results in death is applied, then Smith is guilty of murder — in spite of the fact that he did not intend to kill the policeman.) The Law Commission (Imputed Criminal Intent, D. P. P. v. Smith, London, Her Majesty's Stationery Office, 1967) has now come out in favor, not of an objective test of intention, i.e., one which raises the question of whether a reasonable man in the circumstances would or would not have foreseen consequence x as a consequence of his act, but of a subjective test, which concerns itself with the actual state of mind of the accused, and not with any hypothetical state of mind of any hypothetical individual.

11 Kenny, A. ‘Intention and Purpose’, Journal of Philosophy, vol. LXIII, 1966, p. 647Google Scholar. An important issue arising out of Kenny's paper is whether the law should distinguish between foresight and intention, i.e., whether the legal use of ‘intends’ should be construed as entailing ‘foresees and wants', a development Kenny favors.

12 ‘ … Consequences which are foreseen but which the agent is indifferent to or rejects are not intended. Of course, it may well be correct to hold the agent responsible for these consequences, but that only means that we can be held responsible for more than we intend’ (Ibid., pp. 648–649).

13 cf. Holy Office Decree, May 28, 1884. This decree sets out clearly the ban on craniotomy. This ban is reiterated in the Holy Office Decree of August 19, 1889, and there widened to include any operation which involves a direct attack upon the life of the foetus.

14 cf. Kelly, G. S.J., Medico-Moral Problems (London, Burns Oates Ltd., 1960), pp. 73, 75Google Scholar; Healy, E. S.J., Medical Ethics (Chicago, Loyola University Press, 1956), p. 196.Google Scholar

15 For example, Kelly, op. cit., p. 75.Google Scholar

16 See note 10.

17 cf. Arcy, E.D’ Human Acts (Oxford, Clarendon Press, 1963), pp. 40–57.Google Scholar

18 cf. Siegler, F. ‘Omissions’, Analysis, vol. 28, 1968, 98–106.CrossRefGoogle Scholar

19 The same reasoning will hold if it is the mother who is saved.

20 cf. FitzGerald, P.J. ‘Acting and refraining’, Analysis, vol. 27, 1967, pp. 133–139CrossRefGoogle Scholar; Bennett, J. ‘Acting and refraining’, Analysis, vol. 28, 1968, pp. 30–31.CrossRefGoogle Scholar

21 Wright, G.H. von treats omissions as either identical with or a species of forebearances (Norm and Action, London, Routledge & Kegan Paul, 1963, pp. 45–54)Google Scholar. If, and in so far as, to forebear doing x is identical with a species of refraining from doing x, my remarks here support a difference not only between omitting and refraining but also between omitting and forebearing.

22 Of course, a case might be devised in which the doctor's duty did indicate which life he was to safe, e.g., a case in which he had the choice between saving his patient or another doctor's and could not save both.

23 The Oxford Review, Trinity Term, no. 5, 1967, pp. 16–17.

24 If a doctor treats individual life as valuable, and if he thinks- what he is taught — that no individual life is beneath his craft, then in a case where he can choose between saving five of fifty persons, number will make a difference to him. Since he regards each life as valuable, the saving of fifty valuable lives is preferable to him to the saving of five. We must not overlook the effects of the doctor's training and of what he has been taught on his decision between the five or the fifty. Of course, I do not wish to imply that what is his duty depends upon what he has been taught; only that what he has been taught will bear upon how he interprets his duty in particular cases.

25 Obviously, all sorts of cases can be envisaged, where what the doctor takes into account horrifies us; but in these as in all cases we rely upon the doctor's good judgment and, in the last analysis, upon his character. The point here is simply that knowledge of the fact that the foetus will almost certainly die anyway seems obviously relevant to the doctor's decision as to which life to save.

26 The Oxford Review, Trinity Term, no. 5, 1967, pp. 5–15.

27 By a positive duty, Mrs. Foot means such things as looking after the welfare of children or of aged parents, though she extends the notion a bit to include acts of charity; whereas by a negative duty, she means such things as refraining from killing and robbing (Ibid., p. 12).

28 She notes of an example that’ one does not in general have the same duty to help people as to refrain from injuring them’ (Ibid., p. 12, italics in original). She goes on: ‘it is interesting that, even where the strictest duty of positive aid exists, this still does not weigh as if a negative duty were involved’ (Ibid., p. 12).

29 Ibid., p. 13.

30 Nor is it clear, in these sorts of cases, that there is not a point beyond which any duty to avoid injury is extinguished.

31 cf. Fagothy, A. Right and Reason (St. Louis, C.V. Mosby Co., 1959), p. 154Google Scholar; Windass, S. ‘Double Think and Double Effect’, Blackfriars, vol. 44, 1963, p. 257CrossRefGoogle Scholar; Conway, W. ‘The Act of Two Effects’., Irish Theological Quarterly, vol. XVIII, 1951.Google Scholar

32 Earlier drafts of this paper were read to several discussion groups in Oxford, from which I received valuable assistance. I am also grateful to James Griffin and Jonathan Glover for suggestions, and especially to R.M. Hare for innumerable discussions on the central concern of this paper.