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Edward C. Lyons
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Of Peacocks, Tulips, and Shotguns: Intentions and Side Effects in John Finnis' Natural Law Theory
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Edward C. Lyons
2020/06/15
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Of Peacocks, Tulips, and Shotguns: Intentions and Side Effects in John Finnis' Natural Law Theory
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5
    llVOLUME 5                                      llISSUE 1                             ARTICLES & ESSAYS



                                 UNIVERSITY OF BOLOGNA LAW REVIEW
                                h ps://doi.org/10.6092/issn.2531-6133/11161
                                                      A

    Of Peacocks, Tulips, And Shotguns: Inten ons and Side Eﬀects
                 in John Finnis’ Natural Law Theory
                                              EDWARD C. LYONS †


                                                    ABSTRACT

    This article constitutes a detailed response to John Finnis’ present-day critique and deconstruction
    of two famous tort cases decided in England in the first half of the nineteenth century: Ilott v.
    Wilkes (King’s Bench 1820) and its progeny Bird v. Holbrook (Court of Common Pleas 1828). Both
    cases involved trespassers who were seriously injured upon entering landowners’ property without
    permission. Their injuries were caused by means of ‘man-traps,’ i.e., shotguns set outdoors by a
    landowner and primed to fire upon contact with a tripwire.
    Finnis concedes that in laying man-traps, landowners may not have had a desire to harm (in fact
    they may have had a desire not to harm) but merely to deter. Nevertheless, according to Finnis, any
    landowner setting such devices, even if he posts clear warnings, ineluctably involves that owner in
    “conditionally, but really” intending to kill or seriously injure. The present article challenges this
    view. It argues, by applying Finnis’ own natural law theory of human action, intention, and choice,
    that his conclusion is undermined.
    While this topic may appear arcane to some, it focuses attention on important general questions
    in legal theory and philosophy about the meaning of intentions, choices, and side effects.


                                                    KEYWORDS
                              Basic Goods; Natural Law; Intention; Side Effects; Finnis




†
     Professor Lyons joined the faculty of Oklahoma City University School of Law (U.S.) from Notre Dame Law
    School (U.S.) where he held an appointment as a visiting scholar for the 2010-11 academic year. His current
    courses are Torts, Criminal Law, Federal Taxation, and Estate and Gift Tax. Before entering academia in 2001,
    Professor Lyons held a clerkship with Judge Edward Leavy of the U.S. Court of Appeals for the Ninth Circuit.
    Later, he was an associate in the San Francisco office of Skadden, Arps, Slate, Meagher, and Flom. His
    litigation practice involved tax, securities fraud, mass torts, products liability, insurance coverage, and
    communications law. In addition to his Juris Doctorate, Professor Lyons holds an M.A. and Ph.D. in
    Philosophy. Much of his scholarship has focused on interdisciplinary issues in law and philosophy.



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                                          TABLE OF CONTENTS




Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      133
1. Finnis’ Action Theory: Practical Reason and Basic Goods . . . . . . . . . . . . . . . . . . .          135
        1.1. Thomas Aquinas and the Principles of Natural Law . . . . . . . . . . . . . . . .             137
        1.2. Finnis’ Basic Goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      139
        1.3. Prior Errors about Natural Law Method: the Purported Derivation of Natural
            Law from Human Nature and the ‘Naturalistic Fallacy’ . . . . . . . . . . . . . . .            143
            1.3.1. Metaphysical or Ontological Knowledge of Human Nature as the Source of
                  Knowledge of the Natural Law. . . . . . . . . . . . . . . . . . . . . . . . . .         143
            1.3.2. Natural Law and the ‘Is/Ought’ Problem . . . . . . . . . . . . . . . . . . . .         146
2. Human Choice Within the Matrix of Basic Goods . . . . . . . . . . . . . . . . . . . . . . .            148
        2.1. Conditions Required for the Possibility of Free Choice . . . . . . . . . . . . . . .         149
        2.2. Moral Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       151
            2.2.1. The First Principle of Morals: The Integral Directiveness of Practical Reason          152
            2.2.2. Moral Good and the Intermediate Principles . . . . . . . . . . . . . . . . .           157
                      2.2.2.1. No Arbitrary Preferences Amongst Values . . . . . . . . . . . . .          158
                      2.2.2.2. No Arbitrary Preferences Amongst Persons . . . . . . . . . . . . .         159
                      2.2.2.3. Respect for Every Basic Value in Every Act. . . . . . . . . . . . . .      159
3. Intention and Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       163
        3.1. Intention, Choice and Side Effects . . . . . . . . . . . . . . . . . . . . . . . . . .       164
        3.2. Intention and ‘Substantial Certainty’ . . . . . . . . . . . . . . . . . . . . . . . .        166
        3.3. Side Effects and Culpability . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       166
            3.3.1. Morally Acceptable Side Effects . . . . . . . . . . . . . . . . . . . . . . . . .      167
                      3.3.1.1. Self-Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   167
                      3.3.1.2. Killing of Non-Combatants in Armed Conflict . . . . . . . . . . . .        169
            3.3.2. Morally Unacceptable Side Effects? . . . . . . . . . . . . . . . . . . . . . . .       170
                      3.3.2.1. Legal Penalty for Causing Finnis’ Morally Unacceptable,
                                   A Unintended Side Effects . . . . . . . . . . . . . . . . . . . .      172
4. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     174
5. Conditional Intentions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       175
        5.1. Nuts, Tulips, Peacocks, and Shotguns . . . . . . . . . . . . . . . . . . . . . . . .         176
            5.1.1. Ilott v. Wilkes Clashes over Intent: Conditional or otherwise . . . . . . . . . .      176
                      5.1.1.1. Ilott’s Assumption of the Risk . . . . . . . . . . . . . . . . . . . .     182
                      5.1.1.2. No Proximate Cause . . . . . . . . . . . . . . . . . . . . . . . . . .     183
            5.1.2. Bird v. Holbrook (1828) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    184
6. Spring-guns, Death and Side Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        186
7. Spring-guns, Conditional Intentions, and Side Effects . . . . . . . . . . . . . . . . . . . .          186
        7.1. Conditional intentions to Kill and Intent to Deter by Fear and Terror . . . . . . .          187
            7.1.1. Killings Necessary for the Deterrent to Become Effective? . . . . . . . . . .          188
            7.1.2. A Few Deaths will Strengthen the Deterrent Effect . . . . . . . . . . . . . .          190
        7.2. Conditional Intentions ‘To Kill’ and Intending to ‘Stop the Trespass’ . . . . . . .          191
        7.3. ‘A Man Cannot Do Indirectly Which He Cannot Do Directly’ . . . . . . . . . . . .             193
        7.4. The Maxim and Unintended Effects. . . . . . . . . . . . . . . . . . . . . . . . . .          195
8. Defense of Property and Unintended Killings Caused as Side Effects . . . . . . . . . . . . .           196
        8.1. The Value of Human Life Under Common Law . . . . . . . . . . . . . . . . . . .               197
        8.2. Culpability for Causing Unintended Injury or Death to Protect Property. . . . . .            198
            8.2.1. Moral Culpability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      198
            8.2.2. Legal Culpability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    200
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      203


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      INTRODUCTION

John Finnis, a renowned Oxford legal scholar and professor of law, in his well-known
treatise Natural Law and Natural Rights,1 and his noteworthy essay Intention in Tort Law,2
articulates a theory of practical reasoning and ethical choice that frequently relies in its
analyses upon a controversial philosophical position often referred to as the ‘principle of
double effect’ [hereinafter PDE]. PDE draws upon a distinction asserted to exist, by Finnis
and others,3 between a person’s intention in acting and consequences that may be
foreseeably caused by that action, often with certainty, but which, according to PDE are
not necessarily included in the actor’s intention.4 Finnis employs PDE as a foundation for
his analyses and resolution of critical ethical issues.5 In this article, I will not enter into
technical discussion of PDE and all its details, which I have treated elsewhere,6 but
rather, as Finnis often does, apply its principles generally in the course of analysis.
          The specific impetus for this present study, however, while dependent at various
points upon Finnis’ adoption of PDE, arises as a critique of the position taken by Finnis in
his contemporary deconstruction of two seminal tort cases decided in England in the
first half of the nineteenth century: Ilott v. Wilkes (King’s Bench 1820)7 and its progeny
Bird v. Holbrook (Court of Common Pleas 1828).8 Both cases involved trespassers, who
were seriously injured upon entering a landowner’s property without permission. Their
injuries were caused by means of a ‘man-trap,’ i.e., a shotgun primed to fire when any
would-be trespasser made contact with a tripwire.

1
  JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980) [hereinafter NLNR (1980)].
2
  2 JOHN FINNIS, Intention in Tort Law, in INTENTION AND IDENTITY: COLLECTED ESSAYS 198 (2011) [hereinafter Finnis,
  Intention in Tort Law] reprint of the same in BIRKS PETER ET AL., PHILOSOPHICAL FOUNDATION OF TORT LAW 229,
  229-48 (David G. Owen ed., 1995).
3
  Finnis has developed this theory in collaboration with a number of other philosophers, including Joseph
  Boyle and Germain Grisez: see, e.g., John finnis, Joseph Boyle and Germain Grisez, Nuclear Deterrence,
  Morality and Realism (1987) [hereinafter NUCLEAR DETERRENCE]; see also John Finnis, Germain Grisez and
  Joseph Boyle, Practical Principles, Moral Truth, and Ultimate Ends, 32 AM. J. JURIS. (1987) [hereinafter PPMT],
  their most significant general summary of their views; see also, John Finnis, Germain Grisez and Joseph
  Boyle, “Direct” and “Indirect”: A Reply to Critics of our Action Theory, 65 THOMIST 1 (2001), reprinted in 2 JOHN
  FINNIS, INTENTION AND IDENTITY, COLLECTED ESSAYS 235-68 (2011) [hereinafter CE Vol. II].
4
  See infra notes 146-154 and accompanying text.
5
  Id.
6
  For an especially thorough and lucid explication and defense of the principle, see THOMAS ANTHONY
  CAVANAUGH, DOUBLE-EFFECT REASONING: DOING GOOD AND AVOIDING EVIL (2006). In previous articles, I have
  offered descriptions and defenses of the generally unrecognized operation of double effect in various
  substantive areas of the law. See Edward C. Lyons, In Incognito: The Principle of Double Effect in American
  Constitutional Law, 57 FLA. L. REV. 469 (2005); see also Edward C. Lyons, Balancing Acts: Intending Good and
  Foreseeing Harm - the Principle of Double Effect in the Law of Negligence, 3 GEO. J. L. & PUB. POL’Y 453 (2005); see
  also Edward C. Lyons, Slaughter of the Innocents: Justification, Excuse, and the Principle of Double Effect, BERKELEY
  J. CRIM. L., Fall 2013, at 151. In the present article, however, I explore Finnis’ deeper foundations of this
  principle in his underlying theory of natural law, practical reason, and human choice.
7
  (1820) 106 E.R. 674 (K.B.) (U.K.), [hereinafter Ilott].
8
  (1828) 130 E.R. 911 (C.P.) (U.K.), [hereinafter Bird].


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Finnis concedes that in laying man-traps, landowners may not have had a desire to harm
(in fact they may have had a desire not to harm) but merely to deter; yet, according to
Finnis, any harm or death caused by such traps must be considered “intended.” To wit,
Finnis contends, in a way that would very likely have surprised those erstwhile
landowners, that setting a spring gun as a deterrent, even if they post clear warnings,
ineluctably involves them in “conditionally, but really” intending to kill or seriously
injure.9 The present article challenges this conclusion, proposing that Finnis’ own theory
of human action and his account of moral responsibility undermines his conclusion here.
             Sections 1 and 2 of this article offer a systematic overview of essential strands of
Finnis’ thought comprising his natural law theory. His theory begins with an exposition
of what he terms “basic goods,” the first principles of all properly human action. While
Finnis’ theory is of interest in its own right, especially his treatment of various objections
to natural law theory as a philosophical project, its primary importance for the present
study lies in laying the foundation of his more detailed account, developed in the sections
following, of free choice; the first principle of morality; the origins of moral obligation; and
related intermediate principles he asserts are entailed by that first principle of morality.
             Section 3 reviews Finnis’ reflections on various instances, hypothetical and real,
where human persons are killed, not accidentally and not by straightforward purposeful
murder, but where questions might be raised about whether such killings were intended
or not. These scenarios are important for developing a clearer understanding of Finnis’
theory of ‘man-killing’ and articulating distinctions he draws out between intentions and
side effects, and the moral significance he attributes to these distinctions.
             Section 4 considers in some detail Finnis’ deconstruction of the opinions in those
two infamous “man-trap” cases. Although, discussions in this part center around the
historical use of that common defensive practice (and its very public controversy), this
section seeks to demonstrate that Finnis’ definitive rejection of the logic of the judges’
opinions in those cases—in which they unanimously expressed the view that the setting
of man-traps with warnings did not ipso facto entail an intention to maim or kill—is
mistaken. Moreover, it is at odds with his own explanation of human action and moral
choice. While killing and maiming under such conditions may be wrong and immoral,
that does not require that it be deemed intentional.




9
    Finnis, Intention in Tort Law, supra note 2, at 230-231.


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2020]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                   [Vol: 5 :1


      1.     FINNIS’ ACTION THEORY: PRACTICAL REASON AND BASIC
      GOODS

Finnis’ account of practical reasoning, understood as the foundation for understanding
moral judgment and choice, is sometimes referred to as “the new natural law
theory”[hereinafter NNL].10 As will be reflected in this article, it is comprehensive and
multifaceted. Almost every foundational aspect of it has proven controversial and has
been debated by scholars.11 The following section seeks to sketch out the essential
principles of his theory of practical reason, intention, and choice necessary for the
purposes of this article.
           Finnis begins his analysis of human conduct by inquiring into and examining the
principles of specifically human actions, or as Finnis restates it, those “initiated by free
choice.”12 By referring to his search for the “principles” of human action, Finnis employs
the term in a technical sense as principium or origin. In other words, he seeks to uncover
the very foundations of human choice, which in his view, cannot be reduced to any
conditions precedent: “principles are uncovered by examining that of which they are the
principles. The principles we are concerned with here are motives of human action. As
principles, they will be basic motives, irreducible to any prior motives of the same
sort.”13
           The first principle of free action asserted by Finnis is that it is an act guided by
reason aiming at some object, i.e., an end. “The first type of principle of human action . .
. is that for the sake of which such an action is done” (emphasis added).14 This “for the sake
of which” (whether a specific object produced by an action or action sought for its own
10
               The New Natural Law (NNL) theory is the name given to a particular revival and
               development of Thomistic natural law theory, first proposed in the 1960s by Germain
               Grisez in an interpretative article on St Thomas Aquinas, in which Grisez challenged
               the then-dominant interpretation of Aquinas on natural law. In subsequent decades
               Grisez, John Finnis, Joseph Boyle and other richly developed the theory and applied
               it to other issues (free choice, moral absolutes, abortion, euthanasia, marriage and
               others.
   Patrick Lee, The New Natural Law Theory, in THE CAMBRIDGE COMPANION TO NATURAL LAW ETHICS 73 (Tom Angier
   ed., 2019).
11
   “Finnis is known as an exponent of the ‘new natural law’ school, which presented a fresh understanding of
   St Thomas Aquinas, politics and moral questions. On all these points, more traditionally-minded Thomists
   have strongly criticised Finnis and his associates.”See Dan Hitchens, The incoherent campaign against John
   Finnis, CATH. HERALD (Jan. 17, 2019), https://catholicherald.co.uk/magazine/john-finniss-critics-are-loud-
   but-incoherent. See also, Steven A. Long, Fundamental Errors of the New Natural Law Theory 13 NAT’L CATH.
   BIOETHICS Q. 105, 105-32 (2013).
12
   PPMT, supra note 3, at 100. (“Perhaps the most important presupposition from philosophical anthropology
   is that human persons can make free choices. Whether they assented to this proposition or not, most who
   have contributed to ethical theory, whether in ancient or more recent times, have denied, overlooked, or, at
   best, not fully appreciated the role of free choice in morality.”).
13
   Id. at 102.
14
   Id


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sake) refers then to the rational ground for choice of an action marked out as a means to
one’s purpose. Elaborating all this, Finnis explains:

            That for the sake of which one acts is one’s PURPOSE in acting; one hopes that
            this purpose will be realized through and/or in one’s action. A purpose in this
            sense is a state of affairs–something concrete, which can exist or not exist in
            reality. For example, if one enters a contest, one’s purpose is to win a prize; if
            one does not feel well and goes to the doctor, one’s purpose is to get better.

            People do not always have a purpose distinct from their action; sometimes
            doing the action is itself their purpose in acting. That is very often the case
            when one plays a game or reads a novel.15

In further expanding on this conception of ‘purpose’, Finnis proposes that an object,
action, or possible state of affairs can be envisioned by a rational agent as a purpose only
if it can be understood rationally to participate in or instantiate some general good
grasped and desired by the acting person.16 As an example, Finnis notes that a person’s
reason for playing a game or reading a book has as its purpose some good, but the
pursuit of that good is not exhausted by those particular actions. “Thus, playing and
knowing always have their basic appeal, insofar as they are good, but like other goods
they can be realized only in limited ways through particular actions”.17
           Drawing out his account of the general types of goods that underlie all human
choices, Finnis develops his theory of basic goods. This theory, which he avowedly bases
closely on the writings of Thomas Aquinas,18 proposes that there are some rationally
grasped goods to which all human persons are inclined by virtue of the very experience
of the inclinations of shared human nature.19 Since, as noted, Finnis’ position has roots


15
   Id. at 102-103.
16
                We distinguish between purposes and that about a purpose which makes one
                rationally interested in acting for it. We call the latter a GOOD. For example,
                among goods are winning and being healthy, considered insofar as they can be
                realized-protected, promoted, and so on-not only by one action but by many possible
                actions. In entering a contest or going to the doctor, one’s purpose of winning or
                regaining health only PARTICIPATES in the goods of winning and health, in which one
                is interested more generally. To explicate this participation relationship between a
                purpose and a good, we say: Achieving the purpose will INSTANTIATE the good which
                is the reason one is interested in acting for that purpose.
   Id. at 103.
17
   Id.
18
   Finnis at times relies quite closely on the texts of Thomas Aquinas. For example, with respect to his book
   NATURAL LAW AND NATURAL RIGHTS, NLNR see supra note 1, he states: “To understand this book aright, one
   should note that whenever Thomas Aquinas is quoted or cited, the author is to be taken (except in a few
   cases where he expresses a reservation) to mean to adopt Aquinas’ view.” PPMT, supra note 3, at 150.
19
   This conception of “shared” nature will be taken up in Section II.A.2.a below, see footnotes 85-90 and
   accompanying text.


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deep in the views of Aquinas, it will be useful to review Aquinas’ summary of the
foundations of natural law20 as found in his Summa Theologiae.21



     1.1. THOMAS AQUINAS AND THE PRINCIPLES OF NATURAL LAW

Aquinas begins his discussion of natural law by commenting on the most general
characteristic of practical reason i.e., reason directed by persons’ thinking about what
they are going to do.22 He observes hat practical thinking about action is rooted in
orientation of actions towards ends (i.e., goals) under the aspect of good: “[G]ood is the
first thing that falls under the apprehension of the practical reason, which is directed to
action: since every agent acts for an end under the aspect of good.”23
           Immediately following this point, Aquinas emphasizes its significance by
asserting this insight into the experience of practical reasoning as being directed to
‘good’ is self-evidently embodied as the very first principle of all exercise of practical
reason. “Consequently the first principle of practical reason is one founded on the
notion of good, viz. that ‘good is that which all things seek after.’ Hence, this is the first
precept . . . good is to be done and pursued, and evil is to be avoided.”24
20
   THOMAS AQUINAS, SUMMA THEOLOGIAE II-II q. 94, art. 2 corp. (Fathers of the English Dominican Province trans.,
   Benziger 1911) (1265-73) deals with “The Natural Law.” “De lege naturali” This is Aquinas most elaborate
   treatment of natural law though references to “the natural law” (‘lex naturae’) occur throughout his writings.
21
   For ease of access, this article will—unless otherwise noted—cite the popular English translation of
   the Summa Theologica or “Theological Summary” (in more contemporary academic writings it is usually
   referred to as the Summa Theologiae or Summary of Theology”) of the Benziger edition, published
   originally in 1911 revised in 1920. Latin parallel citations are taken from the online edition ound at
   http://www.logicmuseum.com/authors/aquinas/Summa-index.htm.
22
   One philosopher has described the difference between theoretical and practical reason in the following way:
                How are we to understand this opposition between the theoretical and the practical?
                One possibility is to understand theoretical reflection as reasoning about questions
                of explanation and prediction. . . . Theoretical reflection is concerned with
                matters of fact and their explanation. . . . Theoretical reasoning, . . . finds
                paradigmatic expression in the natural and social sciences. Practical reason, by
                contrast . . . typically asks, of a set of alternatives for action none of which has
                yet been performed, what one ought to do, or what it would be best to do. . . In
                practical reasoning agents attempt to assess and weigh their reasons for action, the
                considerations that speak for and against alternative courses of action that are open
                to them. Moreover they do this from a distinctively first-personal point of view.
   Wallace, R. Jay, Practical Reason, in The Stanford Encyclopaedia of Philosophy (Edward N. Zalta ed., Spring
   2018), https://plato.stanford.edu/entries/practical-reason/#PraTheRea.
23
   “[B]onum est primum quod cadit in apprehensione practicae rationis, quae ordinatur ad opus, omne enim
   agens agit propter finem, qui habet rationem boni.” THOMAS AQUINAS, SUMMA THEOLOGIAE I-II, q. 94, art. 2
   (Fathers of the English Dominican Province trans., Benziger 1911)(1265-73). Finnis expresses a similar point,
   “To understand something possible or actual as good is to understand it has having or giving point, as a ‘that
   for the sake of which . . . ,’ as end.”1 JOHN FINNIS, REASON IN ACTION: COLLECTED ESSAYS, 161 (2011) [hereinafter
   CE Vol. I].
24
   [Et ideo primum principium in ratione practica est quod fundatur supra rationem boni, quae est, bonum est quod omnia
   appetunt. Hoc est ergo primum praeceptum . . . , quod bonum est faciendum et prosequendum, et malum vitandum.]
   THOMAS AQUINAS, SUMMA THEOLOGIAE II-II, q.94., art. 2 corp (1265-73).(Author’s translations).


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Finally, Aquinas draws his conclusion proposing that the natural law is constituted by the
operation of this first principle of practical reasoning in light of human persons’ naturally
grasping objects of the natural inclinations as goods:

             Since, however, good has the nature of an end, and evil, the nature of a
             contrary, hence it is that all those things to which man has a natural
             inclination, are naturally apprehended by reason as being good, and
             consequently as objects of pursuit, (prosequenda) and their contraries as evil,
             and objects to avoid (vitanda). Wherefore according to the order of natural
             inclinations, is the order of the precepts of the natural law.25

Moreover, Aquinas immediately follows this with a concrete discussion of some of these
naturally grasped goods:

             Because in man there is first of all an inclination to good in accordance with
             the nature which he has in common with all substances: inasmuch as every
             substance seeks the preservation of its own being, according to its nature:
             and by reason of this inclination, whatever is a means of preserving human
             life, and of warding off its obstacles, belongs to the natural law. Secondly,
             there is in man an inclination to things that pertain to him more specially,
             according to that nature which he has in common with other animals: and
             in virtue of this inclination, those things are said to belong to the natural
             law, “which nature has taught to all animals” [*Pandect. Just. I, tit. i], such
             as sexual intercourse, education of offspring and so forth. Thirdly, there is
             in man an inclination to good, according to the nature of his reason, which
             nature is proper to him: thus man has a natural inclination to know the truth
             about God, and to live in society: and in this respect, whatever pertains to
             this inclination belongs to the natural law; for instance, to shun ignorance,
             to avoid offending those among whom one has to live, and other such things
             regarding the above inclination.26

Thus, —while full explication of this passage exceeds the scope of this article—for Aquinas
and Finnis the natural law arises from our basic human inclinations to preserve being [life];
to form families and live in human communities, and the inclination to acquire knowledge,
including knowledge of the ultimate causes [God]. Finnis provides the following exegesis

25
   [Quia vero bonum habet rationem finis, malum autem rationem contrarii, inde est quod omnia illa ad quae homo habet
   naturalem inclinationem, ratio naturaliter apprehendit ut bona, et per consequens ut opere prosequenda, et contraria
   eorum ut mala et vitanda. Secundum igitur ordinem inclinationum naturalium, est ordo praeceptorum legis naturae.]
   Id.
26
   Id.


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of Aquinas’ passage, with particular emphasis on the action-guiding role these principles
play in practical reasoning:

              Thomas Aquinas, in his formal discussion of the basic forms of good and
              self-evident primary principles of practical reasoning . . . . arranges the
              precepts in a threefold order: (i) human life is a good to be sustained, and
              what threatens it is to be prevented; (ii) the coupling of man and woman,
              and the education their young, etc., is to be favored, and what opposes it is
              to be avoided; (iii) knowledge (especially the truth about God), sociable life
              and practical reasonableness are good, and ignorance, offence to others, and
              practical unreasonableness are to be avoided.27



     1.2. FINNIS’ BASIC GOODS

The preceding section has elucidated in a concise, general way the salient features of
Aquinas’ view upon which Finnis grounds his own position; viz., that the principles of
natural law are founded upon the experience of natural inclinations toward their objects,
insofar as these are grasped by practical reason as perfective (as an “end”)28 and
rationally grasped as goods to-be-pursued.29 Commenting on Aquinas’ view laid out in
27
   NLNR (1980), supra note 1, at 94.
28
   “The essence of goodness consists in this, that it is in some way desirable. Hence the Philosopher says (Ethic.
   i): ‘Goodness is what all desire.’ Now it is clear that a thing is desirable only in so far as it is perfect; for all
   desire their own perfection.” [Ratio enim boni in hoc consistit, quod aliquid sit appetibile, unde philosophus, in I
   Ethic., dicit quod bonum est quod omnia appetunt. Manifestum est autem quod unumquodque est appetibile secundum
   quod est perfectum, nam omnia appetunt suam perfectionem.] THOMAS AQUINAS, SUMMA THEOLOGIAE I, q. 5, art. 1.
   corp. (Fathers of the English Dominican Province trans., Benziger 1911) (1265-73).
29
                  [T]he principle of voluntary movements must be something naturally willed. Now
                  this is good in general, to which the will tends naturally, as does each power to its
                  object, and again . . . speaking generally, it is all those things which belong to the
                  willer according to his nature. For it is not only things pertaining to the will that
                  the will desires, but also that which pertains to each power, and to the entire man.
                  Wherefore man wills naturally not only the object of the will, but also other things
                  that are appropriate to the other powers; such as the knowledge of truth, which befits
                  the intellect; and to be and to live and other like things which regard the natural
                  well-being; all of which are included in the object of the will, as so many particular
                  goods.
   [Similiter etiam principium motuum voluntariorum oportet esse aliquid naturaliter volitum. Hoc autem est bonum in
   communi, in quod voluntas naturaliter tendit, sicut etiam quaelibet potentia in suum obiectum, et . . universaliter
   omnia illa quae conveniunt volenti secundum suam naturam. Non enim per voluntatem appetimus solum ea quae
   pertinent ad potentiam voluntatis; sed etiam ea quae pertinent ad singulas potentias, et ad totum hominem. Unde
   naturaliter homo vult non solum obiectum voluntatis, sed etiam alia quae conveniunt aliis potentiis, ut cognitionem
   veri, quae convenit intellectui; et esse et vivere et alia huiusmodi, quae respiciunt consistentiam naturalem; quae omnia
   comprehenduntur sub obiecto voluntatis, sicut quadam particularia bona.] THOMAS AQUINAS, SUMMA THEOLOGIAE
   I-II, q. 10, art. 1. corp. (Fathers of the English Dominican Province trans., Benziger 1911) (1265-73). Aquinas,
   in his Commentary on Aristotle’s De Anima, writes:
                  For that of which there is a desire, to wit, the object of desire, is the first principle
                  of practical reason. For that which is desired first, is the end from which the


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the critical passage cited above, Finnis writes: “The goods identified in these principles
are naturally wanted; they are the appropriate objects of the inclinations which pertain
to each of the human capacities and a human being’s natural integrity.”30 Elsewhere,
Finnis states:
              Human persons have natural dispositions toward what will fulfill their
              potentialities. Some of these dispositions are natural appetites—that is,
              dispositions of a person’s various parts and powers toward their own
              actualizations.        .   .   .    These natural dispositions, insofar as they are
              experienced, provide data for the insights in which one knows the first,
              self-evident principles of practical knowledge corresponding to the
              substantive goods.31

Thus Finnis’ model of practical reason, following Aquinas’ lead, is rooted in “ first
principles”, i.e., starting points internal to practical reasoning itself.                                        These are
engendered not discursively but simply by a rational appreciation of the variety of
human goods grasped as to-be-pursued by practical reason itself. Thus, they are natural,
and intelligent appreciations of the directiveness of human inclinations to particular
goods.32 It is essential to recall, however, that Finnis, throughout his analysis, maintains
that these ‘basic goods’ rasped by practical reason as prima principia, are not derived or
inferred from empirical facts. Rather they are self-evidently known insofar as each

                 consideration of practical reason commences. Whenever we want to deliberate
                 about things to be done, we first propose an end, and then proceed by mode of
                 inquiry to the things which are means to that end; thus always proceeding from the
                 later to the prior, until finally arriving at that which is to be done immediately. And
                 thus [Aristotle] adds, the last thing attained by practical reason is the beginning of
                 action. (Author’s trans.)
   [Sed illud cuius est appetitus, scilicet appetibile, est principium intellectus practici. Nam illud, quod est primo appetibile,
   est finis a quo incipit consideratio intellectus practici. Cum enim volumus aliquid deliberare de agendis, primo
   supponimus finem, deinde procedimus per ordinem ad inquirendum illa, quae sunt propter finem; sic procedentes
   semper a posteriori ad prius, usque ad illud, quod nobis imminet primo agendum. Et hoc est quod subdit quod ultimum
   de actione intellectus practici, est principium actionis.] THOMAS AQUINAS, DE ANIMA lib. 3 l, 15 , § 821 (Editio Leonina
   1953) (n.d.).
30
   John Finnis, Practical Reasoning, Human Goods and the End of Man (Jan.                                            29, 1985),
   https://www.academia.edu/9325262.
31
   PPMT, supra note 3, at 108.
32
   As Patrick Lee, another collaborator in the NNL project, see Lee, supra at note 10, has summarized this crucial
   point:
                 What Aquinas called the precepts of the natural law, or the specific principles
                 of practical reason, issue from practical insights into experience of conditions or
                 activities. For from the experience of these conditions or activities one comes to
                 understand that, for example, health, knowledge, or harmonious relationships with
                 other people, are of themselves fulfilling and thus worthy of being pursued. An
                 object’s being genuinely fulfilling is the intelligibility under which one sees it as
                 worthy of pursuit. According to Aquinas, and Finnis developing Aquinas, these
                 insights are made into one’s natural inclinations. The natural inclinations are data for . .
                 . practical insight (emphasis added).
   Patrick Lee, Comment on John Finnis’s Foundations of Practical Reason Revisited, 50 AM. J. JURIS 133, 134 (2005).


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person’s practical reason grasps them directly in and through human experience of
these goods as to be pursued. As Finnis aptly captures Aquinas’ point, “. . . [P]ractical
reasoning begins not by understanding this nature from the outside, . . . but by
experiencing one’s nature, so to speak, from the inside, in the form of one’s
inclinations.”33
               It follows from this, that each individual practical principle relating to a good of
the natural inclinations should not be considered a limitation on the operation of practical
reason. Rather, each good serves as a root for the very possibility of practical reasoning
itself. Each can be instantiated (rather than ‘applied’) in indefinitely many, more specific,
practical principles and premises. Thus, rather than restrict, these are the very principles
which open horizons for all deliberated human activity.34
               In Natural Law and Natural Rights, Finnis proposes his own list of basic goods and
provides substantial commentary. While it is not possible here to do justice to Finnis’
elaboration of the meaning of each basic good, the following table lists with some of his
main reflections summarized on each.35



                 Basic Goods                                Normative Description
                                         Life is to be preserved, the drive for self-preservation.
                                         The term life here signifies every aspect of the vitality
                                         .   .   .   which put a human being in good shape
     A. Life
                                         for self-determination.         [L]ife here includes bodily
                                         (including cerebral) health and freedom from the pain
                                         that betokens organic malfunctioning or injury.
                                         Knowledge is to be pursued for its own sake and
                                         mistakes and mis-information are to be avoided.
                                         Universally the practical principle that truth is a good
     B. Knowledge
                                         worth attaining . . . is applied by human beings to
                                         whatever form of knowledge-gathering they choose to
                                         interest themselves in or commit themselves to.




33
   NLNR (1980), supra note 1, at 34.
34
   Id. at 63.
35
   This table is developed from the descriptions these basic goods proposed by Finnis in NLNR (1980), supra
   note 1, at 86-90, and by Finnis with Grisez and Boyle in PPMT, supra note 3, at 106-107. In describing each
   basic good, the scope of this article permits room for only a terse summary based on remarks found in these
   these explications.


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                Basic Goods                                  Normative Description
                                            Creatively transform the world by work or play.
                                            Engaging in performances which have no point beyond
     C. Play
                                            the performance itself, enjoyed for its own sake. Play
                                            can enter into any human activity.
                                            Aesthetic experience, unlike play, need not involve an
                                            action of one’s own. Sometimes what is sought after
                                            and valued for its own sake may simply be the beautiful
                                            form ‘outside’ of oneself and the ‘inner’ experience
     D. Aesthetic experience
                                            of appreciation of its beauty. But often enough the
                                            valued experience is found in the creation and/or
                                            active appreciation of some work of significant and
                                            satisfying form.
                                            Seek peace and harmony in human relationships.
                                            This good is found in participating in communities on
                                            a large scale as well as the flowering of intimate
     E. Socialability (friendship)          relationships of full friendship.        It is not the
                                            instrumental seeking of one’s own good, but involves
                                            acting for the sake of one’s friend’s purposes, one’s
                                            friend’s well-being.
                                            Seek to bring an intelligent and reasonable order into
                                            one’s own actions, habits, and practical attitudes. This
     F. Practical reasonableness
                                            value is complex, involving freedom, reason, integrity
                                            and authenticity.
                                            Strive to think reasonably and (where possible)
                                            correctly about questions concerning the origins of
     G. Religion
                                            cosmic order, human freedom, and reason. Even if the
                                            answers are agnostic or negative.

                                              Table 1: Basic goods

             As Finnis reiterates in closing his main chapter on basic goods,36 their function—
rationally grasped as “to-be-pursued”— constitute the very foundation through which the
myriad possibilities for human choice become possible:

               So it is that the practical principles which enjoin one to participate in those
               basic forms of good, through the practically intelligent decisions and free
36
     NLNR (1980), supra note 1, at 81-99.


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                actions that constitute one the person one is and is to be, have been called in
                the Western philosophical tradition the principles of natural law because
                they lay down for us the outlines of everything one could reasonably want
                to do, to have, and to be.37



       1.3. PRIOR ERRORS ABOUT NATURAL LAW METHOD: THE PURPORTED
       DERIVATION OF NATURAL LAW FROM HUMAN NATURE AND THE
       ‘NATURALISTIC FALLACY’

The preceding sections of this article have offered a synopsis of Finnis’ account of
practical reason, culminating, as seen above, in his articulation of seven basic goods. Yet
to investigate, however, is the pivotal issue of how Finnis understands the role and
interplay between these goods in relation to the possibility of human choice, and
especially moral choice.38 Before moving onto that topic, however, it is opportune to
consider the manner in which Finnis argues his theory resolves two related problems
that have arisen in prior efforts to develop a coherent natural law theory. Each of these
two problems relates to similar but differing questions regarding the possibility of
‘deriving’ by a type of syllogistic reasoning the principles of natural law from purely
‘metaphysical’ description of human nature.



       1.3.1.       METAPHYSICAL OR ONTOLOGICAL KNOWLEDGE OF HUMAN
       NATURE AS THE SOURCE OF KNOWLEDGE OF THE NATURAL LAW.

The first fundamental error Finnis believes his theory responds to, and resolves, is the
erroneous attempt by some natural law philosophers to derive the principles of natural
law from a prior metaphysical description of human nature and its faculties. Finnis
proffers the following passage of a would-be natural law philosopher as a paradigm
example of this ostensibly flawed approach:

                [T]he theory of natural law which is the basis of St. Thomas’ ethics turns on
                the idea that human nature is constituted by a unique set of properties which
                can be understood and summed up in a definition. . . .
                . . . In outlining man’s powers and functions, as he saw them, Aquinas was
                outlining the nature of man, his essential features which make a man what he


37
     Id. at 97.
38
     See infra notes 76-100 and accompanying text.


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             is, namely a rational, animal. And in thus sketching the nature of man he is
             sketching what is to be the necessary foundation for his moral philosophy.39

According to this mode of analysis, the task of natural law philosophy would simply be to
identify the powers and faculties of human nature and then suggest the orientation of
those faculties to particular sorts of objects.40 This would eo ipso establish an “ought”.41
For Finnis, however, this approach turns the proper order of inquiry on its head. Again
following Aristotle and Aquinas, Finnis proposes that natures themselves can only be
known through prior understanding of the actions and operations that flow from those
natures, understood as the principle of rest and motion in things.42

             Aquinas asserts as plainly as possible that the first principles of natural law,
             which specify the basic forms of good and evil and which can be adequately
             grasped by anyone of the age of reason . . . , are . . . indemonstrable. They
             are not inferred from speculative principles. They are not inferred from facts.
             They are not inferred from metaphysical propositions about human nature,
             or about the nature of good and evil, or about ‘the function of a human being,

39
   Daniel J. O’CONNOR, AQUINAS AND NATURAL LAW 15-6 (1967); cited in NLNR (1980), supra note 1, at 34.
40
   See
                [I]f we were to conceive of the nature of man on such a model [geometrically], One
                might say that it was contrary to the nature of a human being that he should not be
                characterized by upright posture, . . . or that certain human organs should be put
                to a use other than their natural use. And proceeding along these lines, one might
                be tempted to argue that, it being contrary to the nature for a human being, say, to
                walk on all fours, it is therefore wrong for a human being to do so.
   Henry Veatch, Natural law and the “Is”-“Ought” Question: Queries to Finnis and Grisez, in 1 NATURAL LAW 302 (John
   Finnis ed., 1991).
41
   As one philosopher acknowledges:
                We . . . concede to Finnis and Grisez . . . that . . .many so-called natural law
                moralists, particularly in recent years, have, either consciously or unconsciously,
                fallen into the very bad habit of uncritically construing human nature simply on . .
                . [a] false geometrical model; and to the extent to which these natural law thinkers
                did lapse into bad habits of construing human nature in this unfortunate way, then
                their inferences from “is” to “ought,” or from the natural to the normative, would
                need to be pronounced to be fallacious.
   Id. at 304.
42
   As Aquinas writes:
                I answer that, a power as such is directed to an act. Wherefore we seek to know the
                nature of a power from the act to which it is directed, and consequently the nature
                of a power is diversified, as the nature of the act is diversified. Now the nature of an
                act is diversified according to the various natures of the objects.
   [Respondeo dicendum quod potentia, secundum illud quod est potentia, ordinatur ad actum. Unde oportet rationem
   potentiae accipi ex actu ad quem ordinatur, et per consequens oportet quod ratio potentiae diversificetur, ut
   diversificatur ratio actus. Ratio autem actus diversificatur secundum diversam rationem obiecti.] THOMAS AQUINAS,
   SUMMA THEOLOGIAE I, q.77,art,3, corp. (Fathers of the English Dominican Province trans., Benziger 1911)
   (1265-73). Finnis following Aquinas on this point states: “[H]uman nature is known through its capacities,
   and they are known through their acts, and these are known through their object, and those objects are, for
   the most part, precisely the basic good identified in the prima principia of practical understanding.” CE Vol.
   I, supra note 23 at 166.


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            nor are they inferred from a teleological conception of nature or any other
            conception of nature. They are not inferred or derived from anything. They
            are underived (though not innate).43

For Finnis then, asserting that the moral or practical principles of natural law can merely
be “read off ” of human nature or its faculties is a petitio principii and ultimately
nonsensical44 .       Abstract knowledge of human nature—rather than being prior to
knowledge of the prima principia of natural law—is itself dependent upon that prior
practical knowledge of the prima principia.

            One understands human nature by understanding human capacities, those
            capacities by understanding human acts, and those acts by understanding
            their objects. But the objects of humanly chosen acts are precisely the basic
            purposes . . . , that is, goods . . . with which Aquinas is concerned . . . . So
            the epistemic source of the first practical principles is not . . . a prior,
            theoretical knowledge of human nature . . . . Rather, the epistemic
            relationship is the reverse; any deep understanding of human nature, that is,
            of the capacities which will be fulfilled by action which participates in and
            realizes those goods, those perfections, is an understanding which has
            amongst its sources our primary, undemonstrated, but genuine practical
            knowledge of those goods and purposes.45

Thus, for Finnis, no complete understanding of human nature can be reached until after
one has grasped the fundamental goods of practical reason that are the dynamic goods
or ends of the human inclinations. This is because, for Finnis, knowledge of the first
principles of practical reason is not innate but quasi-spontaneously known through bare
reflection upon one’s experience of those very inclinations and the goods toward which
43
   NLNR (1980), supra note 1, at 33-34. Finnis elaborates on this at times in other writings: “[T]he insights
   whose content is the self-evident principles of practical knowledge are not intuitions—‘insights’ without
   data. Rather they are insights whose data are, in the first place natural and sensory appetites and emotional
   responses.” CE Vol. I, supra note 23, at 205; Elsewhere, Finnis writes:
                The first principles of practical reason are ‘indemonstrable’ and ‘self-evident.’ This
                does not mean that they are data-less intuitions, or ‘felt certainties’, or that one
                cannot be mistaken about them, or that they cannot be defended by rational
                considerations. On the contrary Aquinas firmly holds that they are understood by
                what he calls ‘induction’ of principles. by which he means insight into the date of
                experience (data preserved, after the direct experience, in the memory). “To reach
                a knowledge of them [first principles, whether of speculative or practical reason] we
                need sensory experience and memory.”
   NLNR (1980), supra note 1, at 87-88 (citations omitted).
44
   NLNR (1980), supra note 1, at 43 (“A late [i.e., historically] . . . conception of natural law is the argument
   . . . that natural functions are never to be frustrated or that human faculties are never to be diverted
   (”perverted’) from their natural ends. But, as a general premise, in any form strong enough to yield the
   moral conclusions it has been used to defend, this argument is ridiculous”).
45
   CE Vol. I, supra note 23, at 179.


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they direct. Prior to the development of knowledge of these basic goods, which cannot
be inferred or derived from metaphysical reflection, no accurate metaphysical
knowledge of human nature can be synthesized.46



      1.3.2. NATURAL LAW AND THE ‘IS/OUGHT’ PROBLEM

The second error asserted by Finnis to be found in some natural law theories—closely
tied to but distinct from that just discussed above—is the accusation that natural law
theories fall subject to the “is/ought problem.”47 In short, even if abstract metaphysical
conceptions of human nature could provide a basis for inferring principles of natural
law, they would still have the problem of impermissibly attempting to extract an ‘ought’
from an ‘is.’ This problem, sometimes referred to as the ‘naturalistic fallacy,’ has a long
and complex history.48 The crux of it is a logical category error that occurs when one
erroneously draws a conclusion including an ‘ought’ not found in any of the premises.49
Finnis describes the error as follows:



46
   NLNR (1980), supra note 1, at 52 (“[W]hat needs to be shown is that the [teleological] conception of human
   good entertained by these theorists is dependent . . . . There is much to be said for the view that the order
   of dependence was precisely the opposite—that the teleological conception of nature was made plausible,
   indeed conceivable, by analogy with the introspectively luminous, self-evident structure of human well-
   being, practical reasoning, and human purposive action”).
47
   See Anthony J. Lisska, Bentham and Recent Work in Natural Law: Toward Reconstructing an Unstilted Theory, 51
   CURRENT LEGAL PROBS. 299, 302 (1998).
48
   Hume, is perhaps one of the first philosophers to explicitly raise the issue: Much debate has risen in relation
   to the meaning of Hume’s locus classicus found in Book III of his Treatise of Human Nature 1739-40:
               In every system of morality, which I have hitherto met with, . . . the author proceeds
               for some time in the ordinary way of reasoning, and establishes the being of a God, or
               makes observations concerning human affairs; when of a sudden I am surpriz’ed to
               find, that instead of the usual copulations of propositions, is, and is not, I meet with
               no proposition that is not connected with an ought, or an ought not. This change is
               imperceptible; but is, however, of the last consequence. For as this ought, or ought not,
               expresses some new relation or affirmation, ’tis necessary that it shou’d be observ’d
               and explain’d; and at the same time that a reason should be given, for what seems
               altogether inconceivable, how this new relation can be a deduction from others,
               which are entirely difference from it . . . . [A]nd I am persuaded, that this small
               attention wou’d subvert all the vulgar systems of morality, and let us see, that the
               distinction of vice and virtue is not founded merely on the relations of objects, nor
               is perceiv’d by reason.
   DAVID HUME, A TREATISE OF HUMAN NATURE 521 (Mossner ed., Penguin 1969) (1739). For a short history of the
   influence of Hume’s problem, see Lisska, supra note 47, pp. 302-303.
49
   As an example of a this logical error consider the following hypothetical syllogism assuming the truth of
   the following two premises: Factual Major Premise: The Second Amendment guarantees all U.S. Citizens
   the right to own a weapon. Factual Minor Premise: Daniel is a U.S. Citizen. Conclusion: Daniel ought to (or
   should) own a weapon. Even if both the major and minor premises are true facts, the conclusion that Daniel,
   or any, American “ought to” or “should” own a weapon does not follow and is a category error. The proper
   conclusion would be simply: “The Second Amendment guarantees Daniel the right to own a weapon.” The
   erroneous conclusion seeks to import a term into the conclusion not entailed by the premises.


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            [M]oral ought cannot be derived from the is of theoretical truth—for
            example, of metaphysical and/or philosophical anthropology . . . [F]rom a
            set of theoretical premises, one cannot logically derive any practical truth,
            since sound reasoning does not introduce what is not in the premises. And
            the relationship of principles to conclusions is a logical one among
            propositions.50

Finnis’ retort to such a charge if brought against his natural law theory is categorically to
deny what he terms the “common erroneous view”. . . natural-law theory . . . entails . . .
propositions about man’s duties and obligations . . . inferred from propositions about his
nature” (emphasis added).51 Relying again on Aquinas’ account of natural inclinations
and the character of the prima principia as described in the preceding section, Finnis
explains again that the prima principia of natural law are not inferences drawn from
abstract metaphysical theories about human nature or a list of human faculties and
powers.52
          Rather, the principles of the natural law are quasi-spontaneous manifestations of
the first principle of practical reason operating on, one might say synthesizing, the
natural inclinations. Thus, practical reason intelligently begets a principle, i.e., a norm,
which incorporates the directiveness which practical reason “sees” is proper to each
inclination as to a basic good.53 As explained above, Aquinas understands the “first
principle of practical reason,” operating in all its phases as directing that good is “to be
done” and evil “to be avoided.”               Thus, each individual precept of the natural law
generated by practical reason includes its own general directiveness of ‘faciendum et
prosequendum’. As Finnis observes, following Aquinas, the “ought” of the natural precepts
is found in the fact that they direct human action with respect to what “is to be done and
pursued.”
          Hence, Finnis argues that his account of the principles of natural law does not
fall subject to the ‘is-ought’ critique. For the principles of natural law are not derivations
from metaphysical or descriptive accounts (i.e., factual, static aspects) of human nature.
Rather, the prima principia in themselves provide ‘oughts’, independent of metaphysical
propositions, inferences, etc. because each practical principle:

50
   PPMT, supra note 3, at 102.
51
   NLNR (1980), supra note 1, at 33.
52
   See supra note 42.
53
              [P]ractical reasoning . . . begins . . . by experiencing one’s nature . . . , from the
              inside, in the form of one’s inclinations. . . . [B]y a simple act of non-inferential
              understanding one grasps that the object of the inclination which one experiences
              is an instance of a general form of good, for oneself (and others like one).
   NLNR (1980), supra note 1, at 34.


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             [I]s an ought that directs me to the good I am to (should, even if in fact I
             don’t) choose and try to achieve.—an ‘am to’ which is not predictive but
             normative, not future indicative but gerundive, action-guiding by making
             sense of action by making it intelligible as the means to an intelligible
             purpose. And the purpose or objective is intelligible precisely as beneficial,
             as the attaining, instantiating, actualizing of an intelligible good. . . .
             [o]ughts that are truly directive or normative . . . . 54


It is critical, however, at this juncture, to note that Finnis denies that the ought
generated through each of the prima principia, directly constitutes a moral ‘ought’:
“This ought is intelligible in a sense which is not moral.”55 As will be explored below,56
Finnis suggestively adds without further elaboration, that “the ‘ought’ of the first
principles is incipiently or ‘virtually’ but not yet actually, moral in its directiveness or
normativity” (emphasis added).57
           Having laid out the general foundations of Finnis’ theory of basic goods and the
principles of practical reason, it remains to investigate how these various first principles
become actually effective in constituting the human person as moral; how the various
principles synthesize into a coherent system of personal responsibility for acts of moral
good or evil.




       2. HUMAN CHOICE WITHIN THE MATRIX OF BASIC GOODS

It is not evident, from the preceding considerations, how a person is to guide the exercise
of practical reason in light of the multiplicity of basic goods and the manifold purposes
that can be discovered in each of them.58 Further, it is unclear, insofar as Finnis maintains
that each basic good is experienced as some sort of an “ought” to which a person is inclined
by a principle of practical reason,59 how is one properly to choose between these basic
goods? The answer to this question lies in Finnis’ account of choice, and in particular
moral choice. In other words, having traced his account of the basic goods, the inquiry



54
   CE Vol. I, supra note 42, at 3-4.“This ought is intelligible in a sense which is not moral . . .”.
55
   JOHN FINNIS, AQUINAS: MORAL, POLITICAL AND LEGAL THEORY 86 (1998) [hereinafter AQUINAS].
56
   See infra note 79 and accompanying and following text.
57
   AQUINAS, supra note 55, at 87.
58
   See infra note 76 and accompanying text.
59
   See supra note 54 and accompanying text.


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comes back to the point of departure for Finnis’ entire theory: the question of free choice
and its possibility.60



     2.1. CONDITIONS REQUIRED FOR THE POSSIBILITY OF FREE CHOICE

The first point Finnis makes with respect to the possibility of choice is to step back from
discussion of the individual basic goods and propose that all of them, in themselves, are
equally basic. They are irreducible to one-another. “[E]ach is self-evidently a form of
good. . . . [N]one can be analytically reduced to being merely an aspect of any of the
others, or . . . to being merely instrumental in the pursuit of any of the others.”61 At
times Finnis expresses this line of thought simply by referring to basic goods as being
“incommensurable” with one another.62 Each offers its own distinct promise of fulfillment
for human persons not offered by pursuit of any other basic good.63 The upshot here is
that no intrinsic hierarchy exists among basic goods; each good is capable, when focused
on alone, and depending on circumstances facing the person, of seeming more important
than all the others.64 While one might ask whether they are or not all reducible to one
quality, viz. ‘desirability’ or ‘goodness’? Finnis responds that while it is true that they are
all “desired for some reason,”65 the basis for each good’s desirability distinguishes it from
others. “They differ in desirability because there is no single reason underlying every
purpose for the sake of which one acts. The basic goods of diverse categories are called
“good” only by analogy.”66



60
   See supra note 12 and accompanying text.
61
   NLNR (1980), supra note 1, at 92.
62
                Since [the basic goods] are primary principles, the goods of the diverse categories
                are incommensurable with one another. . . . For if they were commensurable . .
                . they would have to be . . . reducible to something prior by which they could be
                measured. . . . If they were reducible to something prior, they would not be primary
                principles.
   PPMT, supra note 3, at 110.
63
   AQUINAS, supra note 55, at 91.“[T]he goods to which practical reason’s first principles direct us are not
   abstract, ‘ideal’ or ‘quasi –Platonic forms’. They are perfections, aspects of the fulfillment, flourishing,
   completion, full-being, of the flesh-and-blood human beings . . . in whom they can be instantiated.” AQUINAS,
   supra note 55, at 91. Elsewhere he writes, “Any creature which acts is . . . not fully given at the outset; it
   has possibilities which can be realized only through its acting. The basic goods are basic reasons for acting
   because they are aspects of the fulfillment of persons, whose action is rationally motivated by these reasons.”
   PPMT, supra note 3, at 114.
64
   E.g., “If one is drowning, or, again, if one is thinking about one’s child who died soon after birth, one is
   inclined to shift one’s focus to the value of life simply as such . . . . [L]ife will not be regarded as a mere
   pre-condition of anything else; rather, play and knowledge. and religion will seem secondary, even rather
   optional extras”. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 92-93 (2011) [hereinafter NLNR (2011)].
65
   PPMT, supra note 3, at 114.
66
   Id.


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It is precisely this incommensurability between basic goods––the unique desirability of
each– which creates the possibility of free choice. If basic goods were commensurable, i.e.,
reducible to some univocal standard or measure (x-ness) by which instantiations of other
basic goods could be evaluated and compared within and across categories, no person
could choose freely. If x-ness were the only criterion that counted in guiding deliberation
for choice,67 on what basis could a person choose one option containing less of ‘x’ when a
second option contained all the ‘x’ of the first option and more x?

            [W]hen technical reasonings identify one option as uniquely correct, that is,
            as dominant, they do so by demonstrating that it offers all that the other
            options offer and some more, it is unqualifiedly better. The other options
            then lack rational appeal. Such deliberation ends not in choice . . . but
            rather in insight, ‘decision’ (not choice, but rationally compelled judgment),
            and action.68

’Free choice’, however, as understood by Finnis to be required for moral responsibility,
which he calls free choice in the “strong” sense, demands incommensurable alternatives.
For in such cases, selection between one or other of the options can only be settled by that
very ‘free choice’ itself:
            [W]e refer to free choices in the strong sense– where one really does have
            reasons for alternative choices but these reasons are not determinative (i.e,
            are necessary but not sufficient conditions for making one or the other
            choice), so that no factor but the choosing itself settles which alternative is
            chosen. 69

Thus, eliminating not only physical material determinism of thoughts and judgments as
an adequate basis for real choice, Finnis also rejects any conception of psychological or
intellectual determinism as a sufficient basis for explaining choice that is truly free.
Ultimately there can be no sufficient reason for a choice, if it is free, other than the
choice itself. No judgments of the mind, whatever their origin, prior to one’s actual
choice itself can definitively settle a choice that is authentically free. Rather the final
selection—resolving deliberation between two irreducible options—is found only in the
67
                [F]or consequentialist [i.e., commensurable] assessments . . . . the alternatives must
                be compared in terms of some conception of good common to them, in virtue of
                which, . . . one alternative can be judged better (or less bad) than the other(s). And
                if that can be done the greater good will contain all the goodness in the lesser, and
                some more . . . .
   NUCLEAR DETERRENCE, supra note 3, at 256.
68
   CE Vol. I, supra note 23, at 225.
69
   See, e.g., NUCLEAR DETERRENCE, supra note 3, at 256; “Choice . . . is a matter of preferring one amongst
   alternative proposals both or all of which win one’s assent as promising benefit and so remain interesting.”
   AQUINAS, supra note 55, at 66.


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choice itself, a final, coextensive act of both will and judgment of reason. As Finnis
explains this concept in greater detail:

             We have to choose when, however long we deliberate, we do not conclude that
             one proposal is ‘dominant, i.e, offers all the benefits of alternatives plus more
             benefits. In the absence of such a conclusion, our deliberating (reasoning) is
             brought to an end only by will, by the act of choosing. . . . In choosing, one
             not only intends the intelligible benefits . . . one is adopting . . . . One also
             . . . is bringing one’s rational deliberations to a close in a final judgement, a
             judgement of preference which can be called iudicium electionis the judgement
             ‘of ’, i.,e, in, the very choosing (emphasis added).70

Finally, it is appropriate to note in this context, and by way of introduction to the next
section, that Finnis’ strong notion of choice as a free, original, and creative act of a human
agent itself constitutes the ground of personal identity and character. Free choices—not
determined but made possible by incommensurable alternatives grasped in deliberation by
practical reason—lay the foundation for self-constituting personal responsibility. “[T]his
creativity is also self-creative, self-determining, more or less self-constitutive. One more
or less transforms oneself by making the choice, and by carrying it out . . . . One’s choice in
fact lasts in, and as part of, one’s character.”71 In short, by making real choices, especially
choices of moral significance about what to do as discussed in the section below, a person
makes himself or herself the moral type of person they are.



     2.2. MORAL CHOICE

As Finnis points out: “We have in the abstract no reason to leave any of the basic goods
out of account. But we do have good reason to choose commitments, projects, and
actions, knowing that choice effectively rules out many alternative reasonable or
possible commitment(s), project(s), and actions(s).”72 He further submits that the ability
to choose between commitment to one basic good rather than another “is the primary
respect in which we can call ourselves both free and responsible.”73
           Thus, as explained above,74 each basic good is incommensurable with other basic
goods—and,          even particular instantiations of the same basic good can be
70
   AQUINAS, supra note 55, at 67. For Further elucidation of this critical insight see also Finnis collaborator Joseph
   Boyle, Free Choice, Incomparably Valuable Options, and Incommensurable Categories of Good, 47 AM. J. JURIS 123,
   139-40 (2002).
71
   CE Vol. I, supra note 42, at 239.
72
   NLNR (2011), supra note 64, at 100.
73
   Id.
74
   See supra Part II.A.1., note 59 and accompanying text.


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incommensurable with one another.75                    Selection between alternatives can only be
resolved by choice that is free in the strong sense. But still unanswered is the question of
what is to guide free-choice between these incommensurables? As Finnis poses the
question anticipating its moral significance: “By disclosing a horizon of attractive
possibilities for us, our grasp of the basic values thus creates, not answers the problem of
intelligent decision: What is to be done? What may be left undone: What is not to be done?”
(emphasis added).76



      2.2.1. THE FIRST PRINCIPLE OF MORALS: THE INTEGRAL DIRECTIVENESS OF
      PRACTICAL REASON

Having examined Finnis’ conceptions of incommensurability, choice, and responsibility,
it is now possible to turn to his particular understanding of moral choice. As alluded to
above,77 but not developed, Finnis proposes that ‘moral obligation’ has its foundations
in, but cannot be identified with, the “ought” proposed by each individual principle of
practical reason, as constituted by practical reason’s grasp of the basic goods. Developing
this thought in more detail, and concluding with a comment noted earlier,78 Finnis states:

             The moral sense of ‘ought’ is reached . . . when the absolutely first practical
             principle is followed through, in its relationship to all the other first
             principles, with a reasonableness which is unrestricted and undeflected by
             any subrational factor such as distracting emotion. In that sense, the ‘ought’
             of the first principles is incipiently or ‘virtually’ but not yet actually, moral
             in its directiveness or normativity.79

The remaining portion of this section on moral choice will attempt to clarify Finnis’
thought in this challenging paragraph.
           This quoted passage proposes that moral ‘ought’ is achieved only when the first
principle of practical reasoning—(bonum faciendum et prosequendum et malum
75
               There is another ground for the incommensurability of options, namely the fact that
               instances of the same good may instantiate it is ways that are not commensurable.
               The reasons for action which a human good motivationally underlies give reason
               for actions and goal so diverse that the generic similarity of the benefits is not
               sufficient for comparison . . . . [A] family’s deliberation about the venue for a family
               vacation, taken for the good of family community and healthy relaxation, discovers
               no common measure for the instantiation of these goods in one location rather than
               another.
   Boyle, supra note 70, at 139-140.
76
   NLNR (2011), supra note 64, at 100.
77
   See supra notes 55-58 and accompanying text.
78
   See supra note 57 and accompanying text.
79
   Id.


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vitandum)80 —is consistently applied (“followed through”) against the background of all
the practical principles; Further, no “subrational” factor may be permitted to “deflect”
or impair this intelligent, active process. Postponing, for the moment, what ‘subrational
factors’ refers to, in Natural Law and Natural Rights Finnis refers to this process of
“following through” as a distinct basic good, i.e., the ‘good of practical reason’: “. . .
[A]mongst the basic forms of good . . . is the good of practical reasonableness, which is
participated in precisely by shaping one’s participation in the other basic goods, by
guiding one’s commitments, one selection of project(s), and what one does in carrying
them out.”81 Here Finnis’ description suggests that the moral sense of ‘ought’ refers to
some type of “harmonization” in deliberation between the first principle of practical
reasoning (with, through, and in?) all the other human goods grasped by practical
reason.
           Asserting that his statement of the good of practical reasonableness in Natural
Law and Natural Rights—partially identified by the quote above,82 —was not adequately
descriptive, Finnis has provided a number of alternative formulations.83 For ease of
analysis, and without belaboring the differences,84 the following discussion will consider
one of his most recent formulations.
           Before turning to that, however, it is necessary to add one further development
to the theory of basic goods that is essential for understanding Finnis’ conception of the
moral application of practical reason.85 Finnis, in a number of his writings notes that the
grasp of the basic goods and the practical principles directing us to them are not egoistic
in their understanding or in application; one does not grasp them as referring solely to
one’s own individual good or benefit:

             [A] feature of all the basic human goods and all the first practical principles
             [is] that they are good also for others like us and that the principles direct each
             of us to have an interest in the attaining and instantiating of the relevant good
             not only in our own life but in the lives of anyone.86

80
   “Good is to be done and pursued and evil avoided.” See supra note 24 and accompanying text.
81
   NLNR (2011), supra note 64, at 100.
82
    CE Vol. I, supra note 23, at 4.
83
   See id. for references. “The version of the first principle most commonly invoked by Finnis is that stated in
   terms of integral human fulfillment.” Joseph Boyle, On the Most Fundamental Principle of Morality in REASON,
   MORALITY, AND LAW: THE PHILOSOPHY OF JOHN FINNIS, 69 (John Keown Robert P. George eds., 2013). In this
   article, I will follow Joseph Boyle in preferring Finnis’ alternative description of it as consistent with ‘integral
   directiveness of practical reason,’ rather than ‘integral human fulfillment’. See id. at 69-72.
84
   For a discussion of the various statements of Finnis and his collaborators about the ‘first principle of
   morality’ see Christopher Tollefsen, Natural Law, Basic Goods and Practical Reason, in THE CAMBRIDGE COMPANION
   TO NATURAL LAW JURISPRUDENCE 133, 148-53 (George Duke & Robert P. George eds., 2017).
85
   Delayed introduction of this topic was chosen to emphasize its pivotal place in Finnis’ moral theory.
86
   CE Vol. I, supra note 23, at 4.


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Adding this essential aspect of practical reason’s grasp of a shared participation in basic
goods by all human persons, it is possible to consider one of Finnis’ latest discussions of
the first moral principle of practical reason.87
           As noted, Finnis observes that the inclusive understanding of the goods of
practical reason encompasses “all persons like us” and involves a thoroughgoing
application of practical reasoning, which itself constitutes a distinct basic good: “Here
practical reasonableness comes into view as a further basic intelligible good to which a
distinct practical first principle directs us.”88
           He then notes the complex interpersonal and intelligible contexts in which moral
deliberations, the practical principles, and choices become relevant:

            The limitations and vulnerabilities of one’s life and capacities . . . demand
            that one adjudicate the normative claims of each and all of the first practical
            principles in their bearing on the ways one’s own choices and actions might
            affect the future existence and flourishing of oneself and others. That such an
            adjudication be reasonable is obviously good not only as a means to realizing
            any of the other intrinsic goods but also in itself.89

Choices and actions that have moral import are those by which we effect in our own and
others’ lives, growth or diminishment in flourishing in all human goods. Elaborating this
point Finnis states:

            This architectonic good—of pursuing the other goods in one’s own and others’
            lives well, fully reasonably, without deflection or distortion by sub-rational
            motivations—is the matrix of all normativity that is not merely practical but
            specifically moral (ethical). Its formal demand is that one be reasonable.90

Prior to exploring in more detail this conception of the first principle of moral reasoning,
some attention must be given to the requirement, reflected in the passages above, that a
properly moral functioning of practical reason must be “unrestricted and undeflected by
any subrational factor such as distracting emotion.”91 Apparently, subrational factors
negatively affect practical deliberation by finding a deficient justification in practical
reasoning itself, one that in some manner, draws upon basic goods themselves. Finnis
provides a helpful example of a desire for revenge caused by hatred or anger, an action
opposed to the basic good of sociability.92 If the desire for revenge arises, it is possible to
87
   The following discussion is drawn from his Introduction to CE Vol. I, supra note 23.
88
   Id. at 4.
89
   Id.
90
   Id.
91
   AQUINAS, supra note 55, at 87.
92
   See supra note 35 and accompanying table in text.


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find reasons for revenge: “one can find reasons which enable one to anticipate certain
benefits from taking revenge—for example, that it will discourage future provocations
and so make for more peaceful relations (“He’ll never do that again!” or “that failure to
take revenge would be unjust.”)93
          Of course, it becomes obvious to most persons in the course of a life, that choices
aimed at satisfying subrational desires motivated by mere appetitive drives, detrimental
habits, illness of mind or body, etc., can be supported by selective rationality. The impact
of these influences can interfere with the natural course that one’s own or another
person’s deliberations and choices would take if unaffected by such deflecting,
“distorting” or “restraining” factors.94 Feelings can impair the rational directiveness of
reason “by proposing goals whose pursuit can be made into a purpose of rationally
guided action, but only by a free choice that fetters reason and limits its directiveness.”95
And it is precisely in these circumstances, where the experience of moral obligation
surfaces. One who does not choose to allow the full directiveness of reason to apply in
practical deliberations, is aware of the breach of the moral principle by flouting the
‘ought’ inspired by t he full directiveness of practical reason.
          Speaking directly to this grasp of moral obligation, Finnis writes:

            When practical knowledge is confronted with the tendency of feeling to
            restrict it by urging a possibility whose choice would fetter it, the is-to-be of
            practical knowledge becomes ought-to-be.             The directiveness of practical
            knowledge becomes normativity because what is to be might not actually
            come to be and yet still rationally is to be.96

The force of this “ought” generated by the integral directiveness of reason provides a
person with a reason to “override” both the intensity of any emotional factors drawing
practical reason aside, as well as to overcome the selective reasoning which has been
brought forth in support of the fettering option.97
93
   PPMT, supra note 3, at 123.
94
                For our makeup as choosers and doers is complex. Feeling and emotion . . . may
                compete with and undermine intelligence and reasonableness. Always I am liable
                to be deflected from pursuit of the understood good into pursuit of the good which
                promises me some satisfactions, here and now, for me.
   JOHN FINNIS, FUNDAMENTALS OF ETHICS 73. For a through consideration of the complex variations of how reason
   and be deflected or fettered by feelings or emotions, See Joseph Boyle, On the Most Fundamental Principle of
   Morality, in REASON, MORALITY AND LAW: THE PHILOSOPHY OF JOHN FINNIS 56, 65-69 (John Keown & Robert P.
   George eds., Oxford University Press, 2013). ; See also PPMT, supra note 3, at 123-125.
95
   PPMT, supra note 3, at 125.
96
   BOYLE, supra note 94, at 63.
97
   Elaborating the force of this obligation, Boyle writes,
                [T]he judgment to which a selective use of practical reason leads remains directive,
                and indeed it is possible that a person will choose the option thus recommended.
                These goods ought not, however, to be pursued in choices responding to this result of


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 In sum, Finnis argues that the first principle of moral reasoning then is not a restrictive
 precept limiting choices in accordance with one “good-making” criterion. As seen above,
 basic goods individually open up a full horizon of innumerable options for choice, all
 desirable in one way or other in view of the basic goods. By definitively establishing that
 each of the practical principles founded on the basic goods “state what ought to be (
 is-to-be) rather that what is or will be, and though they cannot be reduced to
 “speculative”, i.e., non-practical principles, they are true (not false) and direct us to the
 basic goods a as true goods.”98 Hence, the moral principle—the “architectonic” directive
 of practical reason—guides a person to choose goods grasped in light of any of these true
 goods, but only so long as one fully considers those alternatives alive in one’s
 deliberations in light of all the rational goods.                     Finnis, thus, proposes that moral
 reasoning is simply the full operation of practical reason “unfettered” by any obstacle
 interfering with it.99
            As one Finnis collaborator summarizes the benefit of reasoning and choosing in a
 manner consistent with the integral directiveness of the basic goods:

              Carrying that process through to its end allows a fully rational assessment of
              the options for choosing. All the impacts on goods of all aspects of the options
              will be considered, not just noted theoretically. Their rational appeal is given
              voice and attention as human power allows. A free choice responsive to such
              an outcome of deliberation will be as reasonable as a choice can be, since it
              will be responsive to all that is reasonable and to nothing besides that . . . .100

 From one perspective, then the application of the integral directiveness of practical reason
 is simply an expression of a basic maxim often employed by Aquinas:




                 selective deliberation. The rational force of that obligation is rooted in the integral
                 directiveness of practical reason; that force gives one reason to override not only the
                 de facto urgency of the desire, but also the prescriptivity of the good that remains in
                 the option one sets aside because of the selectivity of the deliberation supporting it.
 98
    AQUINAS, supra note 55, at 87. On this point, some natural law philosophers receptive to Finnis et al’s efforts
    have stated with respect to the first principle of morality as self-evident, similar to the other first principles,
                 [T]he cognitive awareness of the first principle [of morality] seems to be just am
                 agent’s rational grasp of the goodness of all the goods. An agent in whom reason
                 grasps the first principle is thus one with a sufficient awareness of practical reasons;
                 the appeal of those reasons just is, in some sense, the content of the first principle
                 of morality, known by the agent without deliberation, and thus without choice.
    See Tollefsen, supra note 84, at 152-153.
 99
    “[T]he first moral principle makes it clear that to be morally good is precisely to be completely reasonable.
    Right reason is nothing but unfettered reason working throughout deliberation and receiving full attention.”
    PPMT, supra note 3, at 121.
100
    BOYLE, supra note 94, at 63. CE Vol. I, supra note 42.


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             “[G]ood results from the entire cause [ex integra causa], evil from each
             particular defect.      [ex quocumque defectu]”101 Moral truth, i.e., moral
             rectitude, is found when all the principles of practical reason are brought to
             bear in one’s deliberations and choice. Moral evil is found when one or more
             of these basic principles are excluded from consideration about what is to be
             done.

 As Finnis states with reference to Aquinas’ maxim:

             A choice is right if and only if it satisfies all the requirements of practical
             reasonableness, that is, all relevant moral requirements. . . The scholastics
             had an untranslatable maxim to make this simple point: bonum ex integra
             causa, malum ex quocumque defectu, an act will be morally good (right) if what
             goes into it is entirely good, but will be morally bad (wrong) if it is defective
             in any morally relevant respect . . . .102

 While the preceding analyses may seem abstract and detached from typical moral
 reasoning about choices and conduct, Finnis’ theory offers further, more concrete
 elaborations of how to achieve integral directiveness, i.e., proper moral reasoning. The
 following section considers some of these instrumental principles aiding in the
 application of Finnis’ first principle of moral reasoning.



      2.2.2. MORAL GOOD AND THE INTERMEDIATE PRINCIPLES

 One useful approach to gaining clearer insight, ‘putting flesh on the bones,’ so to speak,
 of the operation of this first principle of morality—the “integral directiveness of practical
 reason” —is to consider its ‘intermediate specifications’ as proposed by Finnis. According
 to Finnis, these intermediate moral principles, “identify, and direct one away from, ways
 of cutting back on being fully reasonable.”103 Elsewhere, he writes, “[e]ach of these
 requirements concerns what one must do, or think, or be if one is to participate in the
 basic value of practical reasonableness.”104 While Finnis has posited a number of these




101
    “[B]onum causatur ex integra causa, malum autem ex singularibus defectibus.”. THOMAS AQUINAS, SUMMA
    THEOLOGIAE I-II, q.19, a.6, ad 1 (Fathers of the English Dominican Province trans., Benziger 1911) (1265-73).
102
    3 John Finnis, War and Peace in the Natural Law Tradition, in HUMAN RIGHTS AND COMMON GOOD: COLLECTED ESSAYS
    183, 87 (2011).
103
    JOHN FINNIS, MORAL ABSOLUTES: TRADITION, REVISION, AND TRUTH 44 (CUA 1991).


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 principles whose full analysis is beyond the scope of this article,105 the following section
 will take up only three of them:106


      2.2.2.1. NO ARBITRARY PREFERENCES AMONGST VALUES
 “[T]here must be no leaving out of account, or arbitrary discounting or exaggeration, of
 any of the basic human values.”107 As Finnis explains, any reasonable choice of life is
 going to concentrate on and instantiate certain basic goods more than others, often at
 the expense of other forms of good, either for certain periods of time or perhaps
 permanently. Forfeiting certain basic goods, however, will be reasonable only if it is
 based on an accurate estimation of one’s capacities, circumstances in life, and one’s
 individual tastes. It will be unreasonable if that choice of life is based on an exaggerated
 preference for one basic good because of its mere instrumental value.
            Thus, it would be unreasonable if one were to become a physician not out of a
 commitment to the basic good of life as such, but in truth because one sought the
 instrumental goods of money and reputation. A person can also act unreasonably in
 overzealous pursuit of one good to the entire neglect the other basic goods:
              If a statesman or father or any self-directing individual treats truth or
              friendship or play or any of the other basic forms of good as of no account,
              and never asks himself whether his life-plan(s) makes reasonable allowance
              for participation in those intrinsic human values . . . then he can be
              properly accused both of irrationality and of stunting or mutilating himself
              and those in his care.108

 Any full human life should be devoted in some part (i.e. as much as possible) to each of
 the basic human goods.




105
    In FINNIS, supra note 94, at 75, Finnis explicitly proposes nine of these intermediate principles; In PPMT, supra
    note 3, at 128.it is stated the following way. “These intermediate moral principles . . . do not refer to any
    specific kinds of acts, they are more specific than the first principle of morality, because they specify . . .
    how any action must be willed if it is to comply with the first principle of morality.”
106
    As with the basic goods, there is no hierarchy among these principles and “each is fundamental, underived,
    irreducible and hence is capable when focused upon of seeming the most important.” NLNR (2011), supra
    note 64, at 102.
107
    Id. at 105-110. In FINNIS, supra note 94, at 75, he describes this principle as “(2) do not leave out of account ,
    or arbitrarily discount or exaggerate, any of the basic goods.”
108
    NLNR (2011), supra note 64, at 107.


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      2.2.2.2. NO ARBITRARY PREFERENCES AMONGST PERSONS
 Sometimes referred to simply as “avoiding unfairness,” this intermediate principle of
 practical reason proposes that one should give proper respect in deliberating and
 making choices to others’ right to share in basic goods, i.e., to flourish as human
 persons.109       Finnis asserts that no reason justifies an actor evaluating one’s own
 well-being differently from any other person’s.110 While Finnis acknowledges that this
 principle does not prevent reasonable preference for one’s own good or the good of those
 who are “near and dear,”111 it does, however, prohibit preferences “. . . motivated only
 by desires, aversions, or hostilities which do not correspond to intelligible aspects of the
 real reasons for action, the basic human goods . . . ”.
           This     requirement,         therefore,       directs     persons       against     unreasonable
 self-preference in the pursuit of basic goods, i.e., against selectively choosing goods for
 one’s own sake or perhaps for related persons based on exaggerated emotions of care
 and affection or, the opposite, to spite one’s opponents. This principle would disallow
 unreasonably interfering with others pursuit of such goods, and certainly any
 self-preference in choice that unreasonably prevents others’ pursuit of those goods.
 Finnis specifically mentions a few types of reasoning that should be rejected:
 “selfishness, special pleading, double standards, hypocrisy, indifference to the good of
 others whom one could easily help . . . and all the other manifold forms of egoistic and
 group bias.”112 One could, then, presumably include in this list nepotism and cronyism.
 Jealousy and envy could be added as well, i.e., begrudging one’s “neighbor” their success
 in realizing instantiations of various basic goods (e.g., loving spouse, rich communal
 family life, fulfilling occupation, solid friendships, etc.) Finnis goes on to note that this
 intermediate principle is captured by the “Golden Rule” recognized in both the Christian
 gospel and sacred texts of the Jews: ‘Do to (of for) others what you would have them do
 to (or for) you.’113


      2.2.2.3. RESPECT FOR EVERY BASIC VALUE IN EVERY ACT.
 Finnis, as has been reflected in this study of his thought, believes that to live a human
 life is to pursue human flourishing through choices that instantiate basic goods.114 At the

109
    Id. at 106-109; In FINNIS, supra note 103, at 75, Finnis describes this principle as: “(3) do not leave out of
    account, or arbitrarily discount or exaggerate, the goodness of other people’s participation in human goods.”
110
    NLNR (2011), supra note 64, at 107.
111
    I assume here Finnis has in mind various obligations a person might have to oneself or one’s family hat limit
    due to physical circumstances and other factors, how much a person can share goods with third parties.
112
    Id.
113
    Id.
114
    NLNR (2011), supra note 64, at 109-125.


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 same time, however, this foreseeably and unavoidably results in other instantiations of
 basic goods being left unchosen and undeveloped, even if one appreciates their value. “If
 one is to act intelligently at all one must choose to realize and participate in some basic
 value or values rather than others and this inevitable concentration of effort will indirectly
 impoverish, inhibit, or interfere with the realization of those other values.115 This result
 is simply a condition of human existence and is often entirely reasonable.116
            Finnis finds nothing objectionable in this type of “indirect” damage to basic
 goods. He does, however, contrast this permissible form of indirect “damage” to basic
 goods with another objectionable type of damage to basic goods, direct and immediate.
 This permissible/ impermissible contrast between ‘indirect damage’ and ‘direct,
 immediate damage’ is laid down in the following crucial paragraph (broken down here
 for ease of analysis):

             [T]o indirectly damage any basic good (by choosing an act that directly and
             immediately promotes either that basic good in some other aspect or
             participation, or some other basic good or goods). . . . is obviously quite
             different, rationally and thus morally, from . . . directly and immediately
             damaging a basic good in some aspect or participation by choosing an act
             which in and of itself simply (or, we should now add, primarily) damages
             onsistent with the moral principle “integral directiveness of practical
             reason” because such damage is inherent in virtually every choice, which
             necessarily leaves other options for instantiations of good unfulfilled.
             Direct and immediate damage to basic goods, however, is not consistent
             with that good in some aspect or participation but which indirectly, via the
             mediation of expected consequences, is to promote either that good in some
             other aspect or participation, or some other basic good(s.)                  (emphasis
                      117
             added).

 The first type of damage, i.e., indirect, occurs when an actor “promotes or pursues” one
 instantiation of a basic good, and insofar as they are busy promoting that instantiation,
 they cannot simultaneously pursue and promote instantiations in other basic goods. This
 for Finnis can be consistent with the fullness of integral practical reason, even though
 the point of the damaging action, or any immoral choice, will always be to bring about a
115
    Id. at 120; “We have, in the abstract, no reason to leave any of the basic goods out of account. But we do have
    good reason to choose commitments, projects, and actions, knowing that choice effectively rules out many
    alternative reason-ableor possible commitment(s), project(s), and action(s).” Id. at 100.
116
    “But there are many such basic forms of human good; . . . [a]nd each of them can be participated in,
    and promoted, in an inexhaustible variety of ways and with an inexhaustible variety of combinations of
    emphasis, concentration, and specialization. . . . . But our life is short.” Id.
117
    Id.at 120.


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 good in some aspect or some other basic good. Finnis observes that even immoral choices
 will be directed at some basic good, insofar as all choices in some way correspond to the
 first practical principle ‘do good and avoid evil.’ “For anyone who rises above the level of
 impulse and acts deliberately must be seeking to promote some form of good . . .”.118
             The basis for the immorality of directly damaging a basic good, is that it strikes
 at the very heart of human rationality itself, as it is existentially known and experienced
 in, and lived through, the first and intermediate practical principles. It is important to
 remember that here one is not referring to mere technical mathematical or scientific
 principles gained through speculative inquiry. Rather these practical principles form a
 vital constituitive part of one’s very psyche as a conscious acting person. Thus, when a
 person chooses to damage or destroy an instantiation of one of the basic goods, one
 experiences its clash with and contradiction to the moral ‘ought’ inscribed in the
 integral directiveness of practical reason itself. For actors who are sensitive to the
 demands of the integral directiveness of practical reason, the experience of such choices,
 can only be understood as a deformation of the human personality. In Natural Law and
 Natural Rights Finnis makes a similar but distinct point:

                  [N]o sufficient reason can be found for treating any act as immune for the
                  only direction which we have, viz., the direction afforded by the basic
                  practical principles. These each direct that a form of good is to be pursued
                  and done; and each of them bears not only on all our large-scale choices . . .
                  but also on each and every choice of an act which is a complete act . . . . The
                  incommensurable value of an aspect of personal full-being (and its
                  corresponding primary principle) can never be rightly subordinated to any
                  project or commitment. But such an act of subordination inescapably occurs
                  at least whenever a distinct choice-of-act has in itself no meaning save that
                  of damaging that basic value (thus violating that primary principle).119

 Thus, Finnis establishes the ground for defending the intermediate principle currently
 under consideration: “Respect for Every Basic Value in Every Act.”120 Or as he rephrases
 it: “[O]ne should not choose to do any act which of itself does nothing but damage or
 impede a realization or participation of any one or more of the basic forms of good.”121
             Finnis provides the following example of direct damage to a basic good: “This is
 especially obvious when a blackmailer’s price for sparing his hostages is ‘killing ‘that

118
    Id. at 119.
119
    Id. at 121.
120
    Id. at 118.
121
    Id.


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 man,’”122 i.e., the blackmailer agrees to release hostages only if one hostage kills another
 innocent hostage. Finnis observes that in this situation, “the person who complies with
 the demand, in order to save the lives of the many, cannot deny that he is choosing an
 act which of itself does nothing but kill.”123 The act of the hostage-murderer in these
 circumstances is wrong because it involves the actor in violating this intermediate
 principle. “Do not choose directly against a basic value.”124
            All the intermediate principles articulate various ways of acting immorally by
 failing to include in one’s deliberations adequate attention to one or other of the basic
 goods of integral practical reason. However, the last intermediate principle considered
 above—‘do not choose directly against a basic value’—is arguably the most egregious
 departure from integral practical reason. This is so because violation of this intermediate
 principle, involves not just neglect or diminished attention to one or more basic goods,
 but refers to situations where instantiations of basic goods are purposely damaged or
 destroyed.
            Given Finnis’ suggestion that ‘killing a man’ can—as he contends with respect to
 the hostage case just described—be a paradigm case of impermissible damage to a basic
 good, it is appropriate to consider how Finnis distinguishes between ‘killing a man’ in a
 manner that constitutes a direct attack on the basic good of life, and when it does not. As
 Finnis regularly highlights, his theory of basic goods cannot absolutely prohibit causing
 all damage to basic goods. “Every choice and action has some more or less immediate or
 remote negative impact—in some way tends to destroy, damage, or impede —some
 instantiations(s) of basic human goods. . .”.125 The unpredictable nature and complexity
 of human motivations, actions and circumstances of the physical world often conspire to
 bring forth negative consequences from even one’s most well intentioned actions. So,
 Finnis observes, “one can never avoid harming some instances of human goods.”126
 Accordingly, Finnis posits that it would be irrational to propose as an intermediate
 practical principle: “Do not cause harm even as a side effect.”127




122
    Id. at 123.
123
    Id. For further discussion of an act which is nothing other than, in and of itself, an act of damaging a basic
    good which is one basis for distinguishing murder from permissible killing, See Id. at 122-124.
124
    Id. at 123.
125
    FINNIS, supra note 103, at 71.
126
    Id. “Since it is inevitable that here will be some such harm, it cannot be excluded by reason’s norms of action.
    For moral norms exclude irrationality, . . . but they do not exclude accepting the inevitable limits we face
    as rational agents.”
127
    Id. at 71.


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       3. INTENTION AND CHOICE

 It is now possible, at this point in the analysis, to inquire more deeply into Finnis’
 account of choice discussed above.128 Considerations in that earlier section clarified that
 choice is always a selection between incommensurable alternatives of basic goods made
 intelligible through deliberation, which selection is settled only by the very choice
 itself129 Finnis’ more developed account of choice, however, explicitly includes a
 description of the essential role played by intention:

             Moral analysis, rightly employed, uses a . . . precise and stable conception
             of intention. This conception is tightly linked to the moral significance of
             choice. To choose is essentially to adopt a plan or proposal that one has devised
             and put to oneself in one’s practical reasoning and deliberation on the merits
             of alternative options, that is, plans or proposals. Whatever, then, is included
             within one’s chosen plan or proposal, whether as its end or as a means to that
             end, is intended, that is, is included within one’s intention(s).130

 To have an ‘intention’ has to two-fold character. First it requires a person to set one’s
 volitional “sight,” so to speak, o a volitionally desired object as to-be-pursued (grasped by
 practical reason as ‘an end’ orose’ or ‘good’ because it instantiates a basic good);131 and,
 second, an intention requires a person also to select the preferred means that he believes
 will lead to achieving that end, which means is grasped as good for that very reason. This
 proposal, a ‘means-end’ complex, provides practical reason with its intelligible form
 constituting, with the accompanying volitional act, one’s choice, i.e., the bringing about
 of ‘what is-to-be’.
           Based on the description above about what makes voluntarily damaging a basic
 good morally wrong, it naturally follows for Finnis that that one should never intend and

128
    See supra § II.A., note 60 and accompanying text.
129
    See supra note 69 and accompanying text.
130
    CE Vol. II, supra note 3, at 143. Elsewhere he develops the same idea in more precise, technical language:
                 The conception of intention used in moral and legal reasoning, properly understood,
                 is tightly linked to [a] sense . . . of ‘desire’ precisely because it is linked to the moral
                 significance of choice. To choose, in the relevantly rich sense of ‘choice,’ is essentially
                 to adopt a plan or proposal which one has put to oneself in one’s practical reasoning
                 and deliberation on the merits of alternative options, that is, of alternative plans
                 or proposals which one see some reason to adopt, this is, understands as desirable.
                 Whatever, then, is included within one chosen plan or proposal, whether as its end
                 or as a means to that end, is intended, that is included within one’s intention(s). What
                 one does is done ‘with intent to X’ (or: ‘with intent that X’) if X is a state of affairs
                 which is part of one’s plan either as its end (or a part of its end, or one of its ends) or
                 as a means.
    Id. at 176.
131
    See supra notes 13-16 and accompanying text.


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 choose the causing of harm to an instantiation of a basic good; or as he phrases it ‘do not
 choose directly against a basic value.’ In the context of ‘man-killing’ he describes the
 proscription as: “do not intend harm to a human being, either as an end or a means.”132
 Returning to that hostage scenario, the intention, proposal, or plan of the killer (the
 co-hostage murderer) is clear. First, the ‘end’ is the intelligible, desirable good of
 obtaining release for himself and other hostages; second, the ‘means’ is his ‘killing a
 man’ (the hostage-taker has made it clear that the hostage must be made dead not just
 injured). Here, the basic good of life participated by and instantiated in the victim’s
 existence is utterly, completely and intentionally annihilated by the killer. This is a clear
 example of a violation of the intermediate principle at issue; and, through the
 self-determination of character formed by one’s choices, the co-hostage makes himself
 into a man-killer.133



       3.1. INTENTION, CHOICE AND SIDE EFFECTS

 But what about situations when a person has a plan or proposal that does not include
 ‘killing a man,’ the conduct is intentionally chosen entirely for other reasons. At the same
 time, however, the conduct does have ‘killing a man’ as a foreseeable result, perhaps even
 with substantial certainty? Finnis is emphatic that such consequences, playing no role in
 one’s plan or proposal, are not intended:

             [S]tates of affairs which are connected, perhaps even very closely and
             directly, with the carrying out and the outcome of one’s action, but which
             are neither needed nor wanted as part of one’s way of bringing about what
             one proposes to do and bring about, are unintended effects, side effects.
             Though they are caused by one’s choice and action, they are not chosen, that
             is, are not intended, even if they are foreseen (even foreseen as certain).
             Rather they are permitted, that is . . . accepted.134

 In support of this claim, he provides two stark hypotheticals illustrating his position: “The
 first is the blowing up of an aircraft in flight in order to collect the cargo or hull insurance,
 thereby killing the pilot; this it is said is a clear case of . . . intending to kill.” Finnis’
 response is sobering:



132
    FINNIS, supra note 103, at 71.
133
    For further elaboration of this point, see Lyons, In Incognito: The Principle of Double Effect in American
    Constitutional Law, supra note 6, at 469, 496, 498.
134
    FINNIS, supra note 103, at 70-71.


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             It is in no sense a case of intending to kill, intention to ill, or intent to kill . . .
             . [T]he bomb’s effects on the pilot, . . . are not intended. For they are no part
             of the accused’s end or means as these figure in the proposal he adopted by
             choosing to blow up the plane. They are side effects in the morally relevant
             sense.135

 He adds a second aircraft example:

             Terrorists hijack a plane. One of them is carrying a timing device primed to
             detonate a bomb in a city; the instrument can be destroyed only by free-fall
             from a great height. The terrorist’s call for a parachute to be prepared, so that
             the woman among them can exit during the flight. The steward selects two
             parachutes and cuts off the ripcord of one of them, planning (a) to give over
             the dud parachute if the exiting terrorist is carrying the timing device, but
             (b) to give over the good parachute is she is not; the stewards concern is that the
             timing device be destroyed. . . . [T]he terrorist who asks for the parachute is
             carrying the device, so she is given the dud chute and falls to her death.136

 Finnis concludes “[M]y story’s steward . . . manifestly did not intend to kill the terrorist,
 though he foresaw and accepted that his own choice would certainly bring about her
 death. Her free-fall and death are side effects of the steward’s plan to destroy the timing
 device.”137
           In both these examples, the death cause played no role in the specific proposal of
 the plotters or the stewards as an end or means. As one scholar comments in this context
 “[T]he harm . . . is not part of the proposal I adopt by choice; although the physical action
 of harming . . . is included in my physical act . . . , bringing about this harm is not a reason
 for action (either intrinsic or instrumental).”138 Unlike the death in the hostage example,
 which itself is chosen as the precise means to promised release, deaths of the pilot and
 the hijacker-terrorist play no role in the plans or proposals of those causing these killings.
 The deaths are unintended, foreseeable consequences of doing what they are intentionally
 doing.
           Here, two points require further clarification:

135
    CE Vol. II, supra note 3, at 184. Finnis appends to this conclusion a semantic note: “One must immediately
    add, however, that by a nuance of our language, it is a case in which the accused cannot be said to have
    killed unintentionally—for ‘unintentionally’ connotes accident or mistake or lack of foresight.” Adopting this
    awkward liquistic usage— without changing any of the foregoing analysis— it could consistently be said, that
    the though the killing was not intended, it was not unintentional because it was not an accident, or mistake,
    or due to a lack of foresight—”. Id.
136
    Id.
137
    Id.
138
    Patrick Lee, Distinguishing Between What is Intended and Foreseen Side Effects 62 AM. J. JURIS. 231, 234 (2017).


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       3.2. INTENTION AND ‘SUBSTANTIAL CERTAINTY’

 First, for those trained in common law, it may prove difficult to discard the view that
 intent is established if the actor causes an unlawful effect with “substantial certainty.”
 The Restatement (Second) of Torts, for example, provides, “The word “intent” is used
 throughout the Restatement of [Torts] to denote that the actor desires to cause the
 consequences of his act, or that he believes that the consequences are substantially certain to
 result from it” (emphasis added).139
            In Commentary to this section, the Restatement drafters clearly concede that
 defining “substantial certainty” as intent is pure legal fiction:

             All consequences which the actor desires to bring about are intended, as the
             word is used in this Restatement.            Intent is not, however, limited to
             consequences which are desired. If the actor knows that the consequences
             are certain, or substantially certain, to result from his act, and still goes
             ahead, the law treats him as if he had in fact desired to produce the result
             (emphasis added).140

 But treating ‘substantial certainty’ as if it were intent, the drafters in principle
 acknowledge a clear distinction between the volitional desire (intent) to achieve some
 end and the knowledge that such a result will occur. Whatever practical rationales may
 exist for defining intent so expansively (e.g., evidentiary considerations),141 this fiction
 does not comport with the properly philosophical understanding of ‘intent’ as described
 by Finnis above.142



       3.3. SIDE EFFECTS AND CULPABILITY

 Second, by concluding the two aircraft hypotheticals with the assertion that the deaths
 caused are not intended, Finnis does not mean to suggest that the actors are not culpable
 and have no moral or legal responsibility for causing those side effects. On the contrary,
 he states: “Certainly one has moral responsibility for what one thus knowingly and
 “deliberately” causes or brings about. But that responsibility is not the same as one’s

139
    Restatement (Second) of Torts, § 8A (Am. Law Inst., 1965).
140
    Id., § 8A cmt. b.
141
    Lyons, In Incognito: The Principle of Double Effect in American Constitutional Law, supra note 6, at 518-525.
142
    Restatement (Third) of Torts, Phys. & Emot. Harm § 1 (Am. Law Inst., 2010) follows the same pattern,
    although it replaces the ‘desire to cause the consequences’ to ‘acts with the purpose of producing that
    consequence:’ A person acts with the intent to produce a consequence if: (a) the person acts with the
    purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially
    certain to result.


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 responsibility for what one chooses (intends) as part (whether as end or means) of one’s
 proposal.143 In short, Finnis recognizes that asserting that a result was not intended,
 may, as J.L. Austin warned about excuses, only get one “out of the fire into the frying
 pan.”144
            In such cases, however, the wrongfulness, if it is wrongful, of causing the side
 effect, does not have superadded to it the same moral blameworthiness as it would had
 the harm been caused intentionally. Though the actor may be culpable because he or she
 caused an unintended side effect, she was not the type of person that brought that effect
 about because she wanted and chose it, i.e., intended it.
            Before considering in more detail the morality of unintended but foreseeable
 deaths caused in the aircraft hypotheticals, it will be useful to consider two real-life
 situations in which Finnis believes that causing foreseen killings as side effects of action
 carries no moral culpability.



      3.3.1. MORALLY ACCEPTABLE SIDE EFFECTS

      3.3.1.1. SELF-DEFENSE
 Finnis’ account of self-defense, generally coincides with the general pattern of the defense
 proposed by Thomas Aquinas (1225-1274) and thus is informed by what has come to be
 known as the ‘Principle of Double Effect.’145 (PDE) As seen in the following excerpt from
 Aquinas’ locus classicus for PDE, the justification for the morality of causing death in the
 case of defending oneself is rooted in the very distinction between intent and side effects
 adopted by Finnis.146 Prior to consideration of Aquinas’ text, however, it is necessary to
 note that he maintained that it was always impermissible for a private individual to intend
 the death of another person, unless sanctioned by the state. “[I]it is not lawful for a man
 to intend killing a man in self-defense, except for such as have public authority.”147
            In his Summa Theologiae, Aquinas proposes that one act can have two effects: one
 effect is intended and the other not intended. As long as there is a reasonable proportion
 between the good objective (i.e., the focus of the actor’s intent and choice) and the

143
    Killing of FINNIS, supra note 103, at 71.
144
    J.L. Austin, A Plea for Excuses, 57 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY 13 (1957).
145
    See Lyons, In Incognito: The Principle of Double Effect in American Constitutional Law„ supra note 6, at 482-484;
    For a comprehensive review of the PDE covering its understanding, application, and history see CAVANAUGH,
    supra note 6.
146
    See supra § III.A.1., note 135 and accompanying text.
147
    “Illicitum est quod homo intendat occidere hominem ut seipsum defendat, nisi ei qui habet publicam
    auctoritatem.” THOMAS AQUINAS, SUMMA THEOLOGIAE II-II, q. 64, art. 7. corp. (Fathers of the English
    Dominican Province trans., Benziger 1911) (1265-73).


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 unintended side effect, (usually some form of foreseeable harm), the requirements of
 morality are satisfied and causing the unintended side effect(s) is justified:

              It is to be stated that nothing prevents there from being two effects of one act,
              of which only one is in intention [in intentione] and the other outside intention
              [praeter intentionem]. Moral acts, however, receive their character from what
              is intended and not from what is outside of intention. . . . From the act of
              defending oneself, therefore, two effects may follow: one being preservation
              of one’s life and the other the killing of an attacker. Now an act of this type,
              insofar as the preservation of one’s own life is intended, is not illicit since it is
              natural for every being to keep itself alive to the extent possible . . . . It is not
              necessary . . . that a man refrain from carrying out a measured act of defense
              to avoid the killing of another. A person has a greater obligation to provide
              for his own life than for that of another.148

 Thus, for Aquinas, causing the “death of the attacker” plays no part in the agent’s intention
 when properly acting in self-defense.149 The victim does not ipso facto “intend” to kill
 just because he can keep himself alive only by engaging in conduct to stop the attacker
 that is so forceful that it also has the foreseen effect of causing the attacker’s death. In
 such instance, the actor’s conduct is permissible and justified precisely because the death
 resulting from repelling the attack is unintended, and the intention to protect one’s life
 is a significant enough good to justify conduct that causes the foreseeable death of the
 attacker as an unintended side effect.
            As Finnis summarizes all this:

              Aquinas denies that one who is defending himself may rightly intend the
              death of his assailant, even as a means of self-defense, though one may, if
              necessary, adopt a means of self-defense, which one knows will cause death
              as an unintended side effect. Quite a few in the tradition have disagreed, but
              many have agreed, as I do.150

148
    Id. [Dicendum quod nihil prohibet unius actus esse duos effectus, quorum alter solum sit in intentione, alius vero
    sit praeter intentionem. Morales autem actus recipiuntspeciem secundum id quod intenditur, non autem ab eo quod
    est praeterintentionem . . . . Ex actu igitur alicuius seipsum defendentis duplex effectus sequipotest: unus quidem
    conservatio propriae vitae; alius autem occisio invadentis.Actus igitur huiusmodi ex hoc quod intenditur conservatio
    propriae vitae, nonhabet rationem illiciti: cum hoc sit cuilibet naturale quod se conservet in essequantum potest. . . .
    Nec est necessarium . . . ut homo actum moderatae tutelae praetermittat ad evitandum occisionem alterius, quia plus
    tenetur homo vitae sua eprovidere quam vitae aliena.]
149
    Of course it is often possible, or even probable, that some persons do in self-defense intend the death of an
    assailant. This, as indicated above, see supra note 148, Aquinas excludes as always illicit. For Finnis of course,
    intending the death of any person would always be proscribed by the intermediate principle, “Do not choose
    directly against a basic value.” See supra note 125 and accompanying text.
150
    FINNIS, supra note 103, at 78.


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      3.3.1.2. KILLING OF NON-COMBATANTS IN ARMED CONFLICT
 Given the pervasive inflow of televised battlefield reportage, it is a commonly known fact
 that military adversaries often place assets of military value near, or embedded in, non-
 combatant populations. In situations of military conflict, opposing forces may attempt
 to destroy such facilities, often through aerial bombing. This has led to some countries
 efforts to limit, as far as possible, such ‘collateral damage.’ This concept has been defined
 as, “Unintentional or incidental injury or damage to persons or objects that would not be
 lawful military targets . . . Such damage is not unlawful so long as it is not excessive in light
 of the overall military advantage anticipated from the attack.”151 One author describes the
 thinking about “not unlawful” collateral damage as follows:

            In this scenario of foreseen, but unintentional killing, the military has set a
            certain level of acceptable risk for collateral damage death or injury. Attempts
            to reduce the number of civilians harmed will be made. But the operation may
            be allowed to proceed on the judgment that the civilian losses are justified in
            light of the value of the military objective . . . and that there was no other
            way to be effective . . . .152

 In general, this example of restrained tactical bombing follows the general pattern of
 lawful self-defense described in the preceding section. Military air command determines
 that destruction of some military installation is reasonably necessary in light of its goal
 of victory against its opponents. The intention is not to damage the lives of surrounding
 civilians, but only to destroy the enemy’s’ war-making power. Assuming there is a
 truthful balancing of harm between the good intended (the value of the destruction of
 enemy facilities) and the unintended harm (damage and injury to civilians), generally
 the damage to civilians (even death), if necessary to the achieving a serious legitimate
 military goal, has been regarded as morally ‘justified.’
           Thus, both in self-defense and this type of restricted tactical bombing scenario
 there need be no intent to bring about the death of the assailant, in the first, ans the
 civilians, in the second. What is intended is whatever force is necessary to stop the
 attack or destroy the military facility. Although the death of the assailant, on the one
 hand, and the death of innocent civilians, on the other, may be risked or foreseen, and
 perchance foreseen with substantial certainty, those deaths need play no part in the
 practical reasoning of the actor, but may reasonably be regarded, though tragic, as
 unintended foreseeableside effects of the action they did intend. It follows, of course,
151
    NETA C. CRAWFORD, ACCOUNTABILITY FOR KILLING: MORAL RESPONSIBILITY FOR COLLATERAL DAMAGE IN AMERICA’S
    POST 9/11 WARS 16-17 (2013) (citing U.S. AIR FORCE, TARGETING: AIR FORCE DOCTRINE DOCUMENT 2-1.9, at 113
    (2006).
152
    Id. at 19-20.


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 that military operations such as strategic bombing—where massive deaths of civilians and
 demoralization of the enemy, are chosen precisely as the intended means to
 victory—would not be justified under either Aquinas’ or Finnis’ application of PDE.153



       3.3.2. MORALLY UNACCEPTABLE SIDE EFFECTS?

 Returning to the two aircraft examples of unintended causing of death described by
 Finnis above,154 It is appropriate to consider whether similar exculpatory conclusions
 can be reached regarding the deaths caused in these other scenarios.
            With respect to the first hypothetical—in which the pilot was killed as a side
 effect of a bomber blowing up an aircraft in order to collect insurance on it—Finnis states
 very clearly, “[T]he pilot killed by the cargo bombers . . . is treated with gross
 injustice.”155 Relating this wrong back to the intermediate principles of practical reason,
 he explains that the bomber violates the second intermediate principle proscribing
 “arbitrary preferences amongst persons.”156 Finnis observes, “[T]he bomber violates the
 Golden Rule since he would not wish his own life to be thus willfully destroyed by others
 acting not pursuant to any moral responsibility (for example , of defense of self or
 others) but to desire for gain.”157 By rejecting practical reason’s grasp of another’s basic
 good of life as similar to one’s own—and shared equally by oneself and the other—the
 cargo bomber acts unfairly in willingly158 , if not intentionally, causing the foreseen
 destruction of the other’s (the pilot’s) basic good of life.
            In further elaborating the injustice done to the cargo pilot, Finnis adds “his life is
 simply treated as if it were of less value than the insurance money gained by the


153
    Consider Finnis’ comments on the bombing of Hiroshima:
                 [T]he reason for selecting Hiroshima for atomic attack was not that its modest
                 military installation challenged the US or its forces . . . . It was rather that Hiroshima
                 met the requirement that some Japanese city be destroyed, without warning, by an
                 attack designed to maximize the shock of destruction of people and structures, and
                 so overcome Japanese willingness to continue the war . . . . The morally significant
                 intent of those who planned and ordered the operation against Hiroshima was not
                 merely to destroy the military target but rather to destroy the city and many of its
                 inhabitants.
    NUCLEAR DETERRENCE, supra note 3, at 93.
154
    See supra § III.3.A.1, notes 136-139 and accompanying text.
155
    CE Vol. II, supra note 3, at 184.
156
    See supra notes 110-114 and accompanying text.
157
    CE Vol. II, supra note 3, at 184. Here Finnis tacitly concedes that at times an actor can and must recognize
    the rights of others to interfere with one’s own pursuit of basic goods.
158
    Finnis uses ‘willfully’ here in the same sense as “not unintentionally” which he uses to mean unintended,
    but not the result of accident, mistake, or lack of foresight. “By another nuance of our language, is it also a
    case, I think, of ‘willfully’ killing—for ‘willfully’, to my ear, means not unintentionally. Id. See supra note 135.


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 bomber.”159 Here, his language suggests that he sees the cargo bomber’s conduct as also
 violating the intermediate principle proscribing “arbitrary preferences amongst
 values.”160 As noted in prior discussion of this principle, Finnis writes, “[T]here must be
 no leaving out of account, or arbitrary discounting or exaggeration, of any of the basic
 human values.”161 The cargo bomber’s preference, however, for a mere instrumental
 good, i.e., money, (perhaps desired as a means to enhance his own basic good of life)
 entirely disregards the value of the pilot’s basic good of life. As noted in discussion of
 this principle above, it is unreasonable to pursue one basic good to the total exclusion of
 other basic goods.         Knowingly, even if not intentionally, causing destruction of an
 instantiation of the basic good of life as a side effect, without proper justification is not
 justified. To cause as a side effect, the complete destruction of another’s participation in
 the basic good of life, for the sake of an intentional choice of a limited instrumental good,
 e.g., money, could never be rationally justified by the directiveness of practical reason
 toward all the basic goods.
           Turning to the second aircraft hypothetical—where the steward gives a disabled
 parachute to the bomb-laden hijacker-terrorist foreseeing that she would fall to certain
 death—Finnis        states     without      elaboration,         “the   steward’s   treatment    of   the
 hijacker-terrorist “does the terrorist no injustice; one going about to kill others is not
 treated unfairly by lethal counter measures.”162 Here Finnis is clearly referring to the
 exculpatory analyses illustrated in the self-defense and tactical-bombing situations
 presented above.163 Under that analysis, following Aquinas, a person unjustly subject to
 a threat of death or serious harm by another may act to protect themselves by using
 force, even deadly force to stop the threat. Without entailing any intention on the part
 of the actor to kill, the actor’s efforts and the force required to ‘terminate the threat,’
 may permissibly cause, understood as a side effect, the death of the person(s) creating
 the threat.
           Finnis’ conclusion then proposes that the steward, who disabled the parachute
 thus causing the female terrorist’s foreseen death is guiltless of any moral fault. The
 steward’s actions are entirely justified by the threat posed by the hijacker, and the
 intended protection of threatened persons. The cargo bomber, of course, has no such
 defense.



159
    CE Vol. II, supra note 3, at 186.
160
    See supra notes 107-115 and accompanying text.
161
    See supra note 110 and accompanying text.
162
    CE Vol. II, supra note 3, at 186.
163
    See supra § III.A.3.a, notes 149-153 and accompanying text.


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      3.3.2.1. LEGAL PENALTY FOR CAUSING FINNIS’ MORALLY UNACCEPTABLE,
 A UNINTENDED SIDE EFFECTS
 So what is the appropriate treatment for the bomber in this situation? Finnis does not
 hesitate to assign him the highest form of criminal liability, i.e., murder. He, however,
 notes a problem given the limited and restricted categories available to his prosecutors in
 homicide cases:

             In a legal system which divides all criminal homicide into two sharply
             distinguished categories—murder and manslaughter— ranked in gravity, it
             is easy to sympathize with the pressure to assign the cargo bomber to the
             more serious category, notwithstanding that the categorization centres on
             the distinction between the intended and the non-intended but reckless or
             culpably negligent causing of death, that that the cargo bomber’s killing is
             not a case of intending to cause death.164

 Finnis here clearly expresses dissatisfaction with his envisioned options for legal
 prosecution of the cargo-bomber. Although the pilot’s death for Finnis, is—strictly
 understood—an unintended, albeit foreseen, side effect, no justification exists for the
 cargo-bomber’s willingly165 causing that death. As seen in both the self-defense and
 tactical-bombing situations, proportionate goods were intended that balanced and
 justified the unintended causing of deaths in those scenarios. The cargo-bomber’s killing
 of the pilot, however, is not similarly justified. Accordingly, Finnis does not hesitate to
 assert that the cargo-bomber is deserving of conviction for homicide at the highest level
 of culpability and punishment, i.e., murder.
            Finnis’ prosecutor, however, has only one type of homicide that can be
 prosecuted for murder: intentional homicide. Therefore,—because the pilot’s death was,
 ex hypothesi, not intended— the carbo-bomber cannot be charged with murder. The only
 options, then, that remain for Finnis’ prosecutor are, manslaughter for recklessness, or
 the third level of homicide for criminal negligence. None of these, however, satisfy
 Finnis given the “pressure” to mete out a proper punishment due the egregious nature of
 the cargo-bomber’s conduct.
            In response to this dissatisfaction, Finnis proposes as an alternative: “[T]he clear
 headed way of acceding to this pressure is, I suggest to broaden the definition of murder
 to include not only (a) killing with intent to kill but also (b) doing without lawful
 justification or excuse an act which one is sure will kill.”166 Of course, the option of a
164
    CE Vol. II, supra note 3, at 185.
165
    For Finnis’ use of ‘willingly’ as including ‘not intended’ see supra note 158.
166
    CE Vol. II, supra note 3, at 185.


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 murder prosecution under section (b) of Finnis’ proposed statute would apply to the
 cargo-bomber. In view of his unlawful act of blowing up the aircraft for money, knowing
 the pilot would indubitably perish. The cargo-bomber would have no justification or
 excuse defense. The aircraft-steward on the other hand, if charged with murder, would
 presumably be entitled to the ‘defense of others’ justification defense.
              Finnis’ plight, however, would be fully resolved by the Model Penal Code sections
 dealing with murder, and its corresponding grades and definitions.167 MPC § 210 begins
 with a general definition of homicide: “Criminal Homicide. (1) A person is guilty of
 criminal homicide if he purposely, knowingly, recklessly or negligently causes the death
 of another human being.”                   Subsection (2) adds “Criminal homicide is murder,
 manslaughter, or negligent homicide.” This, of course, is generally consistent with
 Finnis’ account of homicide stated above, where the options are murder, manslaughter,
 or negligent homicide. The advantage of the MPC provisions, however, is found in its
 specification of multiple culpability states of mind (mens rea) sufficient for indictment
 and conviction for murder. § 210.2. Murder provides:

                (1) Criminal homicide constitutes murder when:
                         (a) it is committed purposely or knowingly; or
                         (b) it is committed recklessly under circumstances manifesting
                extreme indifference to the value of human life.
                The crucial issues, of course, relate to how the MPC defines its terms. The
                relevant definition of “knowingly” applicable to the MPC provides:

                         §2.02.(b) Knowingly
                A person acts knowingly with respect to a material element of an offense
                when: (ii) if the element involves a result of his conduct, he is aware that it is
                practically certain that his conduct will cause such a result (emphasis added).168

 In short, the MPC murder provision solves all of Finnis’ concerns. It would appear, for
 example that a prosecutor could proceed, confident of conviction, directly against the
 Cargo-bomber for murder under § 210.2.(1)(a) ‘knowingly’ prong.
              The preceding section has illustrated that Finnis’ account of intention and side
 effects does not do away with culpability for side effects, in fact he clearly indicates that
 punishment, even punishment for murders brought about as foreseen side effects, can
 be appropriate. “[O]ne who inflicts death, even as a side effect, in order to effect such
 an instrumentalization of another has in the fullest sense, ‘no excuse’ for thus knowingly

167
      See Model Penal Code, §2.02 and §210.2 (Am. Law Inst, 1985).
168
      Id., §2.02.


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 causing death. We should not complain if both law and common moral thought treat this
 as murder.”169
               At the same time, however, Finnis cautions that—while it may be appropriate to
 treat unintended, but unfairly accepted foreseen deaths as murder— this should not be
 an occasion to warp the authentic and philosophically correct concept of ‘intent.’ The
 cargo bomber’s knowledge that the pilot’s death would follow with practical certainty,
 though a valid basis for a murder charge in that case, does not make, and should not be
 understood to imply, that such knowledge is in reality a form of intent. As Finnis writes,
 referring to situations where “knowingly” will support a murder conviction: “[N]or should
 we distort our understanding of intention so as to bring this within the category of murder
 supposed, too casually, to be limited to intent to kill (or seriously harm).”170 Thus, while
 accepting in principle any definition of murder, like the MPC’s, as able to be committed
 either “purposely or knowingly,” Finnis seeks to emphasize that they are not one and the
 same and should not be conflated.




          4. OVERVIEW

 The foregoing sections of this article have elaborated central facets of Finnis’ natural law
 theory. To recap, Finnis proposes that human life is, among others, a basic good of
 practical reason, and thus can never be intentionally damaged or destroyed. To do so
 would generate cognitive schizophrenia, pitting a person against his own natural
 inclinations and first principles of action, which in their integral directiveness establish
 the experience of ‘moral ought.’ His theory of intention and choice highlights the
 importance of a meticulously precise understanding of intentions as bearing on one’s
 rationally and freely chosen ends and means. By means of forming intentions, i.e., the
 integral parts of their plans or proposals adopted by choice, actors reflexively determine
 their own moral character.
               At the same time, as a corollary to these previous insights, Finnis clarifies the
 often overlooked role played in moral philosophy by side effects, i.e., consequences of
 choices and actions that are not intended but which are often foreseen with greater or
 lesser certitude. Finnis, unsurprisingly, does not approve of every harmful action simply
 because its bad consequences may be unintended. Rather, given the complexity of
 human life, with its threats and dangers, he offers a resolution to the dilemma that would
169
      CE Vol. II, supra note 3, at 194.
170
      Id.


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 be created by prohibiting any and all damage to basic goods, a human impossibility. He
 proposes an equitable resolution to any such absolutist norm. Causing evil, even death of
 another person, may at times, permissibly be caused as a foreseen or foreseeable side
 effect, i.e., when the death itself does not play any role in an actor’s plans or purpose;
 when the actor does not choose the death as an end or a means. Following Aquinas, he
 adds the requirement that there must be a reasonable proportion between the good
 intended and the unintended evil caused; reflection must be given to the intended good
 of the action weighed against the seriousness of the unintended harm brought about.




        5. CONDITIONAL INTENTIONS

 In this concluding part of the present article, consideration will be given to Finnis’ account
 of “conditional intentions.” He elaborates this concept in reference to two pivotal English
 spring-gun cases noted in the Introduction: Ilott v. Wilkes (King’s Bench 1820)171 and its
 progeny Bird v. Holbrook (Court of Common Pleas 1828).172 Both examine claims brought
 with respect to the controversial use of these potentially lethal “man-traps” set to deter
 would-be trespassers.
            As will become clear in the ensuing reflections, Finnis contends that an actor who
 engages in this sort of defensive practice is, albeit conditionally, just intending, i.e., choosing
 directly against a basic good, in causing trespassers to be shot and either killed or severely
 wounded. Finnis contends that even if the landowner has no desire to harm (in fact there
 may be a desire not to harm), the harm if it should occur would be intended, conditionally,
 on the part of the actor.
            Finnis describes the practice at issue in the following manner:

              The typical mantrap was in fact a spring gun: a heavily loaded shot-gun, its
              trigger attached to springs and wires arranged in hidden lines along which
              the blast of shot would travel when anybody tripped them. Typically, such
              guns were set in woods and gardens to deter, disable, and punish persons who
              under the law of the day were no more than trespassers.173

 Sustained discussion of this issue is found in his Intention in Tort Law essay, and commences
 with allusion to Justice Holmes’ comments in the well-known 1922 “attractive nuisance”

171
    (1820) 106 E. R. 674 (K.B.) (U.K.).
172
    (1828) 130 E. R. 911 (C.P.) (U.K.).
173
    Id.


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 case, United Zinc Chemical Co. v Britt.174 In Britt, contrasting situations where adults, rather
 than children, are injured upon trespass, Holmes wrote, “If the children had been adults
 they would have had no case. They would have been trespassers and the owner of the
 land would have owed no duty to remove even hidden danger; it would have been entitled
 to assume that they would obey the law and not trespass.”175 If, however, the landowner
 prepares a hidden trap for the trespasser, Holmes notes the difference: “The liability for
 spring guns and mantraps arises from the fact that the defendant has . . . expected the
 trespasser and prepared an injury that is no more justified than if he had held the gun and
 fired it.”176



       5.1. NUTS, TULIPS, PEACOCKS, AND SHOTGUNS

 Finnis’ discussion, however, immediately turns to consideration of the important English
 tort case decided just over 100 years before United Zinc.



       5.1.1.     ILOTT V. WILKES CLASHES OVER INTENT: CONDITIONAL OR
       OTHERWISE

 In this case, the plaintiff Ilott trespassed during daylight hours with a companion onto
 defendant Wilkes’ 50 to 60 acre private wood.177 Their purpose was to gather nuts. The
 private wood was situated along a public way, and Wilkes had placed nine or ten spring
 guns at various hidden locations on his property concealed by trip wires.178 In addition,
 “[s]everal boards were affixed, containing notice to the public that such instruments were
 so placed.”179 Ilott’s companion specifically warned him about the presence of the guns,
 and refused to enter unless Ilott proceeded first. They entered onto the property and Ilott
 was injured when he tread upon a wire connected to one of the spring-guns.180 At the end
 of trial in this case, the judges unanimously rejected plaintiff Ilott’s arguments, and found
 that no action could be maintained against defendant landowner Wilkes.


174
    United Zinc. & Chemical Co. v. Britt, 258 U.S. 268 (1922).
175
    Id. at 275.
176
    Id.
177
    (1820) 106 E.R. 674 (K.B.) (U.K.).
178
    “Defendant . . . had set a certain spring-gun charged with gun-powder and leaden shot, in a certain part
    of said wood and premises, near those parts over which the right of way extended, with a certain wire
    communicating with the lock and other parts of the said spring-gun by the treading on or touching of which
    wire, the said gun could be let off and fired . . . .” Id. at 675.
179
    Id.
180
    Id.


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 In his article, Intention in Tort Law,181 Finnis provides a critique of the various judges’
 opinions in Ilott. He introduces his discussion, however, with consideration of some
 contemporaneous editorial comments on the case offered by Sydney Smith,182 a popular
 19th century English editorialist. Smith’s comments along with Finnis’ added emphasis
 set the tone and nicely encapsulate Finnis’ critique of the Ilott opinion:

           I do not say that the setter of the trap or gun allures the trespasser into it; but
           I say that the punishment he intends for the man who trespasses after notice
           is death. He covers his spring gun with furze and heath, and gives it the most
           natural appearance he can, and in that gun he places slugs by which he means
           to kill the trespasser. The killing of an unchallenged, unresisting person, I
           really cannot help considering to be as much murder as if the proprietor had
           shot the trespasser with his gun . . . Does it [matter] whose hand or whose
           foot pulls the string which moves the trigger?—the real murderer is he who
           prepares the instrument of death, and places it in a position that such hand or
           foot may touch it, for the purposes of destruction.”183

 Finnis, fully endorsing Smith’s editorial opinion, restates it in the following way

           Put strictly in the language of intent, . . . just as personally shooting a
           trespasser engaged in no act or threat of violence is simply killing or
           wounding with intent to kill or wound. So too setting a spring gun involves
           intending (conditionally but really) to do the same ‘without firing the shot.’
           And what one cannot, lawfully, with intent, accomplish ‘directly’ (in person)
           one cannot, with the same intent, accomplish ‘indirectly’ (mechanically)
           (emphasis added).184

 Thus, Finnis summarizes in one short paragraph the argument that, as he states, “was in
 fact put squarely by the plaintiff ’s counsel . . . and unanimously rejected by four
 well-regarded judges of the Court of King’s Bench. Expressly contrary, however, to
 Finnis’ contention that Wilkes had a conditional intention to kill or seriously injure
 trespassers, the judges of the court unanimously held that Ilott’s injury was not caused


181
    See, e.g., Finnis, supra note 2.
182
    See, e.g., “Sydney Smith, (born June 3, 1771, Woodford, Essex, Eng.—died Feb. 22, 1845, London),
    one of the foremost English preachers of his day, and a champion of parliamentary reform. .
    . . Smith was also famous for his wit and charm.” Sydney Smith, ENCYCLOPEDIA BRITANNICA
    https://www.britannica.com/biography/Sydney-Smith.
183
    Finnis, Intention in Tort Law, supra note 2, at 230-231.
184
    Id. at 231.


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 intentionally by Wilkes, and therefore Ilott could maintain no legal action against Wilkes
 for his injury.185
            Based on various aspects of Finnis theory of intent and choice considered above,
 and based on various statements of the judges in Ilott and its progeny Bird v. Holbrook,186
 good reasons support the conclusion that Finnis simply begs the question when he
 concludes—as in the quote above—that a person who sets a spring gun necessarily
 intends to kill conditionally, i.e., if a trespasser should disregard warnings and enter. In
 order to draw out reasons in support of this conclusion, it will be necessary to consider
 the actual reasoning found in the judges’ opinions.
            In the opening paragraphs of Ilott, a short opinion authored by Chief Justice
 Abbott, the judge first notes that the case does not require the court to decide “whether
 a trespasser sustaining an injury from a latent engine of mischief, placed in a wood or in
 grounds where he had no reason to apprehend personal danger, may or may not
 maintain an action.”187 While Abbott expresses his belief that the use of such engines is
 inhumane, he nevertheless adds, “at the same time I cannot but admit that repeated and
 increasing acts of aggression to property may perhaps reasonably call for increased
 means of defense and protection.”188
            After this introductory remark, Abbott proposes:

             I believe that many persons who cause engines of this description to be placed
             on their grounds do not do so with the intention of injuring any one, but really
             believe that the notices they give of such engines being there, will prevent any
             injury from occurring, and that no person who sees the notice will be weak
             and foolish enough to expose himself to the perilous consequence likely to
             ensue from his trespass.189

 In response to this judicial finding of no intent, Finnis counters: “The fallacies about
 intention are in each case clear enough . . . . [U]nless he was supposing a high degree of
 ignorance or self-deception about the frequent ‘accidents’ involving spring guns,
 [Abbott] clearly confuses intending with hoping.”190 Here Finnis suggests that Abbott
 erroneously believed that when landowners set spring guns they subjectively hoped that
185
    See, e.g., Abbott’s concluding sentence and final holding: “I am of the opinion that this action cannot be
    maintained.” Ilott at 677.
186
    See (1828) 130 E.R. 911 (C.P.) (U.K.).
187
    This question was not in play, because Ilott, as noted in the recitation of facts, was on actual notice that
    guns were placed on the property. The question, however, was decided in Bird v. Holbrook eight years after
    Ilott. As will be shown infra see notes 220 and 221 and accompanying text the question is relevant to the
    consideration of the Ilott holding.
188
    Id..
189
    Ilott, at 676.
190
    FINNIS, Intention in Tort Law, supra note 2, at 232.


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 no trespasser would be killed. According to Finnis, however, Abbott was wrong, and the
 landowners in fact intended to kill trespassers. As Finnis explains: “Landowners of this
 kind [Abbott] envisages may well both desire and hope that no one will trespass and thus
 that no one will be shot, yet they clearly do intend that those (if any) who do trespass
 will be shot.”191
              Moving on to Sydney Smith’s direct comments concerning Abbott’s statements
 on the subject of the the landowners’ beliefs, Smith writes:

                But if this be the real belief of the engineer—if he think the mere notice will
                keep people away—then he must think it a mere inutility that the guns should
                be placed at all: If he think that many will be deterred, and a few come, then
                he must mean to shoot those few. He who believes his gun will never be called
                upon to do its duty, need set no gun, and trust to rumour of their being set, or
                being loaded, for his protection . . . . He who sets a loaded gun means it should
                go off if it is touched.192

 Here Finnis, again approvingly adopts Smith’s logic: “Means to’ is another synonym for
 ‘intends to’.”193
              A few remarks regarding Smith’s comments are in order. First, Smith’s point
 hinges on the belief that the population of surreptitious trespassers and poachers was
 gullible and easily hoodwinked. Yet, these qualities are not often attributed to persons of
 such stealthy ilk. Presumably, if the facts played out as suggested by Smith, it would
 arguably not take long for the ruse to be discovered, spread by “rumour,” and the
 faux-deterrent rendered impotent. With respect to necessity of the placement and
 concealment of the guns for purposes of deterrence, Justice Bayley observes:

                The [plaintiff ’s] declaration states that the plaintiff had no notice of the places
                or of the direction in which the guns themselves were placed, or where the
                wires communicating with the guns were placed; but it is not necessary to
                give notice to the public that guns are placed in such particular spots in such
                particular fields; for that would deprive the property of the intended protection. .
                . It is sufficient for a party generally to say, “There are spring guns in this
                wood” (emphasis added).194

 Here Bayley illustrates his clear understanding that it is the concealment of the guns,
 combined with the posting of warnings that functions as the deterrent against unlawful
191
    Id.
192
    Id.
193
    Id.
194
    Ilott, at 677.


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 entry onto the premises. The most secure way for a landowner to guarantee the efficacy
 of this deterrent against trespass (for whatever reason)—and dispel any public doubt
 about the reality of the warnings— would be to actually load and set the guns (perhaps in
 the presence of trustworthy citizens). Smith’s and Finnis’ proposed subterfuge reeks of
 glib cleverness exuded by upper class city gentlemen who have no gardens or fields to
 protect from trespass.
            Of course, the principal issue before the court, as evidenced by the judges’ laserlike
 focus on the question of intent, is whether Smith is correct when he states, ’He who sets a
 loaded gun means it should go off it if is touched;’ and, whether Finnis, is correct in adding
 ‘Means to’ is another synonym for ‘intends to’.195 These statements of Smith and Finnis,
 however, in point of fact, appear to miss the entire object of the spring-gun deterrent as
 it functions in Ilott. This point did not escape the judges hearing the case. Justice Bayley
 wrote:

              Such instruments may be undoubtedly placed without any intention of doing
              injury, and for the mere purpose of protecting property by means of terror;
              and it is extremely probable that the defendant in this case will feel as much
              regret as any man for the injury that the plaintiff has sustained.196

 With respect to Bayley’s point here, Finnis responds that it “fails to recall that one intends
 not only one’s ultimate ends (say, protecting one’s property) but also all the means one
 has chosen to further those ends (say, injuring or killing poachers as a punishment, and
 as a deterrent to and disablement from future poaching). One chosen means are indeed,
 one’s proximate ends.”197



195
    FINNIS, Intention in Tort Law, supra note 2, at 232.
196
    Ilott, at 677.
197
    Id. Here Finnis, again following Aquinas, notes that a chosen a means to some end, may itself become
    a proximate end, which in turn may require deliberation and choice about the means by whihow that
    intermediate end is to be achieved.
                   [I]ntention regards the end as a terminus of the movement of the will. Now a
                   terminus of movement may be taken in two ways. First, the very last terminus,
                   when the movement comes to a stop; this is the terminus of the whole movement.
                   Secondly, some point midway, which is the beginning of one part of the movement,
                   and the end or terminus of the other. Thus in the movement from A to C through B,
                   C is the last terminus, while B is a terminus, but not the last. And intention can be of
                   both. Consequently though intention is always of the end, it need not be always of
                   the last end.
    [Intentio respicit finem secundum quod est terminus motus voluntatis. In motu autem potest accipi terminus dupliciter,
    uno modo, ipse terminus ultimus, in quo quiescitur, qui est terminus totius motus; alio modo, aliquod medium, quod
    est principium unius partis motus, et finis vel terminus alterius. Sicut in motu quo itur de a in c per b, c est terminus
    ultimus, b autem est terminus, sed non ultimus. Et utriusque potest esse intentio. Unde etsi semper sit finis, non tamen
    oportet quod semper sit ultimi finis.] THOMAS AQUINAS, SUMMA THEOLOGIAE I-II, q. 12, art. 2. corp. (Fathers of the
    English Dominican Province trans., Benziger 1911) (1265-73).


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 Here, Finnis reveals his clearest assessment of how a landowner’s practical reasoning
 unfolds. Apparently, as he envisions it, the landowner begins his practical deliberation
 with a grasp of the benefit of protecting his property from trespass, poaching, theft, etc.
 Then, having volitionally set that as his end, he proceeds to deliberate about means, i.e.,
 how he can achieve that protection. At the end of this deliberative process, according to
 Finnis, the landowner chooses ‘to kill or injure poachers’ as the means, (i.e., punishment,
 deterrent and disablement of trespassers) to that end.
           Finnis’ conclusion here, however, openly impugns the unanimous factual findings
 of the court’s members in Ilott. That the judges highlight the question of intent confirms
 that there was no confusion about the critical issue: whether the landowner intended to
 kill or injure as a means to protect their property. They all concluded he did not have any
 such intention. For Finnis of course, as explained above,198 having the intention that he
 attributes to the landowners, to kill or injure to protect property, requires landowners to
 choose the setting of spring-guns precisely ‘in order to kill or injure’ as the means to that
 end.199 To repeat Finnis’ position on intent, choice, and means:

             What consequences, results, outcomes of one’s choosing and doing are to be
             judged intended . . . . is settled simply by considering why one is doing
             what one is doing, counting as within the proposal one has adopted by choice,
             everything which one wants for its own sake [end] or for the sake of what one
             wants for its own sake [means to end].200

 Therefore, on Finnis’ account of the landowners’ intention, in answer to the question of
 why the landowners set the spring-guns, they, if truthful, must answer: ‘I want to
 protect my property from trespassers by means of killing or seriously injuring them.’ If
 this adequately describes the plan or proposal of the landowners, in Finnis’ mind this
 would indeed entail a conditional intention to kill or injure, if they trespass. Of course,
 based on Finnis’ theory of choice this would also entail that the landowners must be
 understood to choose in a very precise and specific way—the very deaths or serious injury
 of the trespassers—as an integral part of their plan and proposal to protect their
 property from trespassers.
           Justice Bayley in Ilott, however, in the act of holding that landowners who set up
 the spring-guns do so “without any intention of doing injury . . .”, immediately adds “for
 the mere purpose of protecting property by means of terror (emphasis added).” If, however,
 as Baley affirms, a landowner who sets up a loaded spring-gun has no intention to injure,

198
    See supra § III.A, note 129 and accompanying text.
199
    See esp. supra note 131 and text.
200
    CE Vol. II, supra note 3, at 171.


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 how can the judge simultaneously affirm in the same breath that the landowner’s true
 intent is “protecting property by means of terror?” If a landowner’s intent is not to injure
 or kill, how then could setting spring- guns achieve its deterrent purpose, as Justice Baley
 himself proposes, “by means of terror?”
              A close review of the Ilott opinions reveals the clear answer to this question—an
 answer to which Finnis devotes scant attention.                    In the course of their individual
 opinions the judges repeatedly emphasize that their holding rests solidly upon the fact
 that notice of the presence of spring-guns was clearly communicated to Ilott and the
 public at large. In short, the judges conclude that Ilott has no action against Wilkes based
 on his intentional, voluntary decision to enter onto the property despite knowing the
 character of the risk. The judges go on to explain this triggers two distinct but related
 legal grounds for absolving Wilkes of responsibility: 1) given the notices, Ilott voluntarily
 assumed the risk of death or serious injury; and 2) Ilott’s intentional choice to enter the
 property, having been apprised of the danger, is the ‘proximate cause’ of his own
 injuries, thus cutting off any liability of Wilkes.


      5.1.1.1. ILOTT’S ASSUMPTION OF THE RISK
 In support of Ilott’s ‘assumption of the risk’ (volenti non fit injuria) “to the willing there is no
 injury” doctrine, consider the following statements of the judges:
                It is sufficient for a party generally to say “There are spring-guns in the wood;”
                and if another then takes upon himself to go into the wood, knowing that he
                is in the hazard of meeting with the injury which the guns are calculated to
                produce, it seems to me that he does it at his own peril; and must take the
                consequences of his own act. The maxim of law, volenti non fit injuria applies,
                for he voluntarily exposes himself to the mischief which has happened.201

                In this case it is found by the jury that the plaintiff actually knew that the
                spring guns were set in this wood. . . . [W]e cannot say that an action may be
                maintained against the defendant for doing an act like the one in question.202

                The jury have found that the plaintiff (before he entered the wood) knew that
                engines like that by which he suffered in consequence of his trespass were
                placed there; to him therefore, they ceased be latent engines of mischief. 203


201
    Ilott, at 677.
202
    Id. at 676.
203
    Id.


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                  Considering the present action merely on the ground of notice, and leaving
                  untouched the general question as to the liability incurred by placing such
                  engines as these where no notice is brought home to the party injured, I am
                  of opinion that this action cannot be maintained.204

                  Where a man . . . is actually apprised before he enters that the guns are there,
                  he cannot afterward complain that there has not been a proper and sufficient
                  notice given.205

                  [T]he party who so enters, with full knowledge of the danger, is himself the
                  cause of the mischief that ensues and falls within the principle of law, volenti
                  non fit injuria, for as he knew that the spring guns were placed, there, he can
                  have no right of action for an injury which resulted from his own act alone.206

                  [I]t cannot be unlawful to set spring-guns in an enclosed field, at a distance
                  for any road, giving such notice that they are set, as to render it, in the highest
                  degree, probable, that all persons in the neighbourhood must know that they
                  are so set.207



      5.1.1.2. NO PROXIMATE CAUSE
 In support of a finding of no ‘proximate cause’ between Wilkes’ conduct and Ilott’s injuries
 consider the following court statements:
                  The only doubt which I have entertained during the course of the argument
                  arises out of that maxim of law, that a man cannot do that indirectly which
                  he cannot do directly. I am now , however, satisfied , that that principle has
                  no application to the present case, where the plaintiff had express notice that
                  the spring-guns were placed on premises where he wrongfully entered; . . .
                  in that case the act of firing off the gun, which was the cause of the injury, was
                  his act, and not the act of the person who placed the gun there.208

                  Now in the present case, in order to make the firing off of this gun the act of
                  the person who placed it there, we must consider him as doing indirectly the
                  same thing as if he had taken up the gun at the time and shot the plaintiff;
                  and we must consider the latter as a mere instrument, not an actor. If he
                  had seen the wires and trod on them with the intention of firing off the gun,
                  it is clear that that would have been his own act. Here he entered the wood
204
    Id. at 677.
205
    Id. at 678.
206
    Id.
207
    Id. at 680.
208
    Id. at 678.


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             with full notice that those engines were placed there, and with the
             knowledge, therefore, that the danger was unavoidable.             So far as was
             concerned, the cause of the mischief could not be considered as latent, and
             the act of letting off the gun, which was the consequence of his treading on
             the wire, must be considered wholly as his act, and not the act of the person
             who placed the gun there.209

 The judges’ insistent focus on the role of notice, viz., the posted warnings, in
 pronouncing Wilkes’ innocence, clarifies that they envisioned the “terror” by which the
 landowners lawfully intended to deter trespassers and poachers, was not—as Finnis
 contends—the intentional ‘killing’ of such persons.                  Rather, the conclusion most
 consistent with the finding of the judges and common sense was that first and foremost,
 the landowners’ true plan was to protect their property by intentionally generating as a
 deterrent a great fear of death (i.e., terror). This, it is suggested, is a more plausible
 account of the landowner’s intent. Rather than intending to kill, they intended to deter
 trespassers by both setting real guns and then adequately warning, as Wilkes did, about
 their lethal presence.        That this was their intention, and not killing, is evidenced
 precisely by the fact that warnings were posted, as was explicitly recognized by all the
 judges of the King’s Bench in Ilott. If the landowners’ true intention in setting up spring
 guns was to deter by killing or seriously injuring trespassers, they would not have posted
 warnings.
            In order to confirm this interpretation of Ilott v. Wilkes, it will be useful to briefly
 consider its companion case which arose eight years after the decision in Ilott and in which
 no notices of hidden spring guns were posted.



       5.1.2. BIRD V. HOLBROOK (1828)

 In this case210 , Holbrook, the defendant, had rented a “walled garden” and was growing
 and selling “valuable flower-roots, particularly tulips, of the choicest and most expensive
 description.”211 Holbrook and his wife lived in a small summer-house in the middle of the
 garden. Holbrook had been robbed, shortly before the events giving rise to the litigation,
 of flowers and roots valued at 20£.212 Soon after that theft and in order to protect his
 property, Holbrook with the aid of another man:

209
    Id. at 679.
210
    See also (1828) 130 E. R. 911 (C.P.) (U.K.).
211
    Bird, at 912.
212
    See, e.g., 20£ Pounds Sterling in 1828 was the equivalent of $1,136 U.S. dollars in 2019. Calculated at
    https://www.uwyo.edu/numimage/currency.htm.


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             placed in the property a spring gun, the wires connected with which were
             made to pass from the doorway of the summer house to some tulip beds, at
             the height of about fifteen inches from the ground, and across three or four of
             the garden paths, which wires were visible from all parts of the garden or the
             garden wall; but it was admitted by the Defendant, that the Plaintiff had not
             seen them, and that he had no notice of the spring gun and the wires being
             there; and that the Plaintiff had gone into the garden for an innocent purpose,
             to get back a pea-fowl [peacock] that had strayed.213

 It was also proved at trial that Holbrook had been asked by two persons on two separate
 occasions prior to the incident whether he had put up any notice of the spring guns; one
 person advised him to do so. Holbrook, however, responded that he did not “conceive that
 there was any law to oblige him to do so,” and the Defendant desired such person not to
 mention to anyone that the gun was set, “lest the villain should not be detected.”214 On the
 evening of March 21, 1825, a neighbor’s peacock flew into Holbrook’s garden. Bird, a 19
 year-old male, climbed Holbrook’s garden wall to help a servant of that neighbor retrieve
 the peacock. After calling out to see if anyone was in the garden and receiving no answer,
 Bird jumped down into the garden. “And the boy’s foot coming in contact with . . . the
 wires, close to . . . where the gun was set, it was thereby discharged, and . . . its contents,
 consisting of large . . . shot, were lodged in . . . his knee-joint, and caused a severe
 wound.”215
           In Ilott, as noted above, Chief Justice Abbott had specifically observed that that case
 did not require the court to decide “whether a trespasser sustaining an injury from a latent
 engine of mischief, placed in a wood or in grounds where he had no reason to apprehend
 personal danger, may or may not maintain an action.”216 This question, as can be gleaned
 from the facts related above, was the precise issue raised by Bird’s action against Holbrook.
 In this case, which neither Chief Justice Abbott nor Justice Bayley participated in, the court
 unanimously held, citing reasoning in IIlott v. Wilkes, that an action could be maintained
 by Bird against Holbrook.
           Without belaboring the details of the court’s analysis, the following statement in
 Bird of Chief Justice Best, who did participate in Ilott, suffices to summarize its main line
 of reasoning. After quoting a number of statements from Ilott relating to the requirement
 that notice of spring-guns be posted by landowners if they are to avoid liability, Chief
 Justice Best writes:
213
    Bird, at 912.
214
    Id. at 912-913.
215
    Id. at 913.
216
    See supra note 178 and accompanying text.


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              I am, therefore, clearly of the opinion that he who sets spring guns, without
              giving notice, is guilty of an inhuman act, and that if injurious consequences
              ensue, he is liable to yield redress to the sufferer. But this case stands on
              ground distinct from any that have preceded it. In general, spring guns have
              been set for the purpose of deterring; the Defendant placed his for the express
              purpose of doing injury; for when called on to give notice, he said, “If I give
              notice, I shall not catch him.” He intended therefore, that the gun should be
              discharged, and that the contents should be lodged in the body of this victim,
              for he could not be caught in any other way.” 217

 Bird thus confirms that when no posted warnings are provided, all the views of Finnis
 about the setting of spring guns and conditional intentions to kill if a trespasser enters
 are verified. Finnis is correct that the landowner must intend that if a person enters the
 property,the intruder will be severely injured or killed. To what other motivation, apart
 from gross carelessness, can a conscious failure to post warnings be attributed?




        6. SPRING-GUNS, DEATH AND SIDE EFFECTS

 Having explored the contours of the judges’ logic in their opinions in Ilott and Bird, it is
 possible to respond directly to Sydney Smith’s and Finnis’ argument that, “He who sets
 a loaded gun means it should go off it if touched.” And Finnis immediately adds ‘[m]eans
 to’ is another synonym for ‘intends to.’ ”218 It is relevant and proper to inquire how the
 landowner in Ilott would respond to the accusation or better the question, “what did you
 intend by setting a loaded gun that will go off if it is touched? For, if loading the gun was
 part of the landowner’s plan or proposal he should be able to provide some explanation.




        7. SPRING-GUNS, CONDITIONAL INTENTIONS, AND SIDE EFFECTS

 The preceding statement of Chief Justice Best in Bird sheds, as described with a term
 dear to Finnis,219 “diaphanous” light on Ilott. As explained above, the judges in Bird, a


217
    Bird, at 916
218
    Id.
219
    See generally Finnis, Intention in Tort Law, supra note 2, at 233.


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 case of first impression,220 clearly reject Finnis’ contention that setting spring guns
 necessarily entails a conditional intention to kill. Rather, as argued above with respect to
 Ilott, the judges unanimously interpreted the posting of clear warnings as evidence that
 the injury caused by the spring-gun was not intended; but instead the spring-guns were
 “set for the purpose of deterring”—not by killing as Finnis would have it—but by means
 of terror and fear. The court goes on to find, contrariwise, that Holbrook, by failing to
 give warning, “placed his [guns] for the express purpose of doing injury.” Continuing and
 tying the failure to warn with its proper implication, the court found that defendant
 Holbrook “intended therefore that the gun should be discharged, and that the contents
 should be lodged in the body of the victim.”



         7.1. CONDITIONAL INTENTIONS TO KILL AND INTENT TO DETER BY FEAR
         AND TERROR

 These dicta in Bird confirm the plausibility of the preceding interpretation of Ilott offered
 in response to Smith’s and Finnis’ query above. In answer to the question “why” set loaded
 guns, the judges in both Ilott and Bird appreciated that Wilkes’ setting the spring-guns
 need not, as Finnis vigorously maintains, entail an intention, even conditionally, ‘to kill’
 as a means to ensure protection of property. Instead—having given abundant notice of the
 presence of the lethal guns which had been set—his intention in setting spring-guns can
 coherently be interpreted as being solely “for the purpose of deterring” by means of fear
 and terror, not a conditional intention to deter by killing as is clearly the case in Bird.
               Accordingly, the response to Sydney Smith and Finnis’ question would be simply
 to propose that the question is a non-sequitur. The landowners’ real intention in ‘setting
 a spring-gun-cum-warning’ is precisely that no one enter the property to begin with, not
 to seize or disable the trespasser for capture as in Bird. The further response that could
 be given, as considered above,221 would be for the landowner to explain that to be
 effective the guns must actually be loaded and concealed in order—not to kill—but to
 make the warning believable to the occupants of the community, efficacious to deter
 trespassers out of real terror and fear. As such, the intent of the landowners in reality is
 that their deterrent prevent would-be trespassers from entering the property. Wilkes’
 intention was that the terror of the hidden guns and warnings, with townspeople
 confirming their lethal nature, would effectively scare trespassers off. Stated in terms of
 Finnis’ account of intention, the landowner could respond : ‘my plan or proposal was

220
      See Bird at 916, “[T]his case stands on ground distinct from ant that have preceded it.”
221
       See supra notes 196-197 and accompanying text.


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 that by letting neighbors clearly observe that the guns were actually loaded and by
 placing abundant warnings, word would spread. I would be able to protect my property
 by intimidating away intruders by fear and terror of certain death or serious injury.’ If a
 landowner executes conduct in accord with this proposal—a plan that should reasonably
 deter trespassers from entering in the first place—it is disingenuous then to accuse him
 of intending, as part of his plan or proposal, that “if someone does come on the land” they be
 killed or seriously injured. Their plan or proposal was that the deterrent would be
 effective, and no trespasser enter onto the land.



        7.1.1. KILLINGS NECESSARY FOR THE DETERRENT TO BECOME EFFECTIVE?

 While this interpretation of Ilott is consistent with the reasoning of the court in Ilott and
 Bird, before moving on, it is necessary to consider yet one final argument of Finnis seeking
 to establish killing of trespassers is part of the landowners’ intent i.e., part of their ‘plan
 or proposal,’ in setting spring-guns: Finnis writes “The deterrent ‘object’ (intent) will be
 attained only by the infliction of injury or death on at least a few trespassers, culpable or
 innocent: such injury is thus intended as a means to achieving the deterrent object”.222
               Finnis, here proposes that in order for the bona fides of the deterrent to be
 established, at least a few persons, presumably either on the owner’s land or another’s,
 would have to attempt trespass and be killed or injured in their efforts. And so, pace
 Finnis, those deaths must be intended. This last reprise of Finnis—again contrary to the
 findings of the judges in Ilott and Bird—works off the question-begging supposition,
 argued against above, that the landowners have a conditional intention to kill.
               Without any evidence supporting this assertion, Finnis assumes as fact what is in
 reality a purely contingent, and perhaps doubtful, matter, i.e., that trespassers would not
 believe the truth of the posted warnings until a few were actually killed or injured by the
 guns. In point of fact, most trespassers, regardless of recent history, would be aware that
 spring-guns, like any shot-guns, are extremely dangerous and, at the least, capable of
 seriously maiming, if not killing. This knowledge of the reality of the deterrent to any
 would-be trespassers could also be gained, if the landowner took, as suggested above,
 reasonable measures to ensure knowledge of the truth of the threat. In short, it is mere
 speculation that the “object” intended as a deterrent could “be attained only by the
 infliction of injury or death upon a few trespassers.”



222
      FINNIS, Intention in Tort Law, supra note 2, at 233.


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 On the other hand, on Finnis’ behalf, it is not unrealistic to foresee—that with many
 landowners employing spring-guns—some rash trespassers and poachers might venture
 their fortunes and despite posted warnings, breach the close and be injured or killed by
 activation of spring-guns. Does this confirm Finnis’ point? Does the landowner’s plan or
 proposal include a conditional ‘intent to injure or kill’ at least a few in order for the
 deterrent to be taken seriously?                   One cannot, of course, deny that the death of
 trespassers by spring-guns despite the posted warnings is an associated risk of employing
 that mode of deterrence. But, even assuming a particular landowner might foresee that
 possibility with greater or lesser certainty, does this prove Finnis’ contention that such
 deaths are therefore conditionally intended by the landowner?
              This article has argued—consistent with the judges’ holdings in both Ilott and in
 Bird—that landowners who set spring-guns with adequate warnings need have no intent
 to kill, conditionally or otherwise. Rather, their intention, i.e., their plan or proposal, is to
 deter trespassers by means of genuine terror achieved by setting guns actually loaded
 with powder and shot, and by posting clear warnings of their lethal presence. In this
 situation, if an intruder recklessly ignores the warnings and proceeds to enter the land
 and is killed or seriously injured, would it not be appropriate, given Finnis’ own theory, to
 regard these injuries not as intended but rather as foreseen yet unintended side effects of
 the landowner’s conduct.
              In proposing the argument that such killings or injuries must necessarily be
 intended, Finnis appears to have disregarded his own central thesis regarding the
 relationship          between       intent     and    foreseeable       consequences—including   deaths
 foreseeably caused even with certainty. It is difficult to envision why a landowner in
 these circumstances could not be understood to be situated in a way at least analogous to
 those described by Finnis above with respect to the cargo bomber, terrorist-hijacker, and
 commander ordering tactical bombing.223 In each of those scenarios, Finnis had no
 difficulty in concluding that the deaths—which were directly caused by the actors and
 foreseen by them with substantial certainty—were not caused intentionally; but rather,
 willingly caused as unintended side effects.224
              The same reasoning applies to situations where there may be killings or injury
 caused by spring-guns with adequate warnings posted. Is it not plausible that the death
 or serious injury of a trespasser plays no part in the plan or proposal chosen by the
 landowner? The landowner does not want or need trespassers to be ‘made dead’ or
 seriously injured in order to attain the goal of property protection. All he needs to

223
      See generally supra § III.A.1, notes 135-139 and accompanying text.
224
      For the non-intentional sense of ‘willingly’ used here, see supra note 158.


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 protect his property is to avert, divert, or forestall entry. His intention, according to a
 fair reading of the esteemed judges’ opinions in Ilott and Bird, was solely to deter
 unlicensed entrance (trespass) onto property by means of fear and terror, not by means
 of killing. Thus, on this analysis any deaths which might foreseeably occur, though
 tragic, would not occur as part of the landowners plan or proposal. Stated in terms of
 Finnis’ own theory, it would only be fair to construe them as unintended side effects. As
 Finnis aptly summarizes all this in another context:

             Whatever consequences lie outside one’s proposal, because neither wanted for
             their own sake nor needed as a means, are not synthesized into one’s will.
             Though one may foresee these results and accept that one will be causing
             them, or the risk of them, one is not adopting them. They are side effects,
             incidentals.225



       7.1.2. A FEW DEATHS WILL STRENGTHEN THE DETERRENT EFFECT

 On the other hand, one might ask, what is the implication if any unintended deaths that
 might occur are welcomed by the landowner insofar as they will increase the deterrent
 effect of spring-guns? Would this change the evaluation of the landowner’s intent?
            Precisely such a question is considered by Finnis with respect to the tactical
 bombing scenario developed above.226                   Recall that in that situation, the deaths of
 civilians—living or working in proximity to military installations to be bombed—might
 be foreseen with substantial certainty. Yet, those deaths would be unintended, and come
 about as a side effect. As was explained, in certain situations, if the military objective is
 significant enough, such unintended deaths are often regarded as morally justified. Of
 course, for Finnis, the intentional bombing of innocent civilians to lower and demoralize
 an enemy and undermine its determination to fight, would always be wrong as an
 intentional destruction of instantiations of the basic good of life, thus violating various
 intermediate principles.227 The question posed here, however, considers the situation
 where morally permissible unintended deaths of civilians caused by such bombing have
 the further consequence of weakening the morale of the enemy, and play an
 incremental, albeit critical role in achieving victory for the side of the tactical bombers.
 As Finnis describes it: “The commanders of a bombing force may regard civilian


225
    FINNIS, Intention in Tort Law, supra note 2, at 213.
226
    See supra § III.A.3.a.ii, notes 152-154 and accompanying text.
227
    See supra § II.A.2.b., note 104 and accompanying text.


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 casualties and the consequent demoralization and highway-obstructing civilian refugee
 columns as a welcome bonus, yet not intend them.”228
              Does that bonus benefit, possibly foreseeable, of the unintended deaths of
 civilians, which would be immoral if caused intentionally by strategic bombing, cause
 the bombing deaths to be deemed intentional? Finnis’ response is consistent with his
 theory of intention and choice:

                Any who welcome and rejoice in an effect of their actions, but who in no way
                adapt their practical reasoning (and thus the plan they adopt and execute)
                with a view to bringing about that effect, do not intend it . . . . [S]uch bonus
                side effects can be genuinely side effects even when foreseen (if they are in
                no way provided for in the chosen proposal) . . . .229

 Accordingly, even if tragic but unintended deaths of trespassers occur and thereby ensure,
 to the satisfaction of the landowner, a greater efficacy of the deterrent created by the
 posted warnings and setting of spring-guns, this would not make those deaths indirectly
 intended. So long as the landowners did not incorporate achieving this benefit into their
 practical plan or proposal, this beneficial but unintended side effect would, one might say,
 remain the unintended side effect of unintended side effects.



        7.2. CONDITIONAL INTENTIONS ‘TO KILL’ AND INTENDING TO ‘STOP THE
        TRESPASS’

 The preceding section offered one possible defense of the view, supported by the
 unanimous findings of judges in Ilott and Bird, that landowners who set loaded
 spring-guns with warnings had no intention, conditionally or otherwise, to kill or injure.
 Rather, it was argued the landowners intended to deter solely by fear and terror.
 Further, it was reasoned that if any trespasser flouted the warnings, their deaths could
 be understood as unintended side effects of the landowner’s conduct.
              One additional retort, however, can be brought against Finnis’ and Smith’s
 sustained effort to impute intentional killing to landowners. Whether or not one finds
 plausible the arguments offered above asserting that the plan or proposal of the
228
      CE Vol. II, supra note 3, at 205.
229
      Id. at 182; Elaborating this point Finnis states:
                    This is possible, provided that (a) they do not regard civilian casualties and their
                    welcome effects as even a secondary aim, and (b) they select only military targets,
                    calibrate the bombs and plan the bombing runs exclusively for the purpose of
                    destroying those targets, and desist from bombing areas containing civilians as soon
                    as the military targets are removed.
      Id. at 205.


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 landowner is primarily inspired by an intention to defend property by means of fear and
 terror, not by killing, still one other another approach can be proposed. If a trespasser
 actually begins the process of unlawful physical intrusion, scorning the posted warnings,
 the guns might be placed by the landowners as a last defensive resort, to ‘stop in its
 tracks’ so to speak, an attempted trespass.
            The principal plan or proposal of the landowner would be primarily to deter all
 such persons out of fear and terror of being shot given the presence of the warnings and
 actually loaded guns. In the event that this deterrent fails, however, and the trespasser
 actually begins to enter, the reserve plan of the landowner might be that the activation
 of the guns will achieve the final defense of the property, either by injuring or killing the
 trespasser.
            Of course, this may appear a direct capitulation to Finnis’ argument that the
 killing or injuring would be “conditionally intentional” if the trespasser enters. The
 critical question, however, is whetherthis second type of defensive injuring or killing
 must, in these circumstances, be considered intentional?
            Here, however, it is again possible, using Finnis’ own logic, to argue that the
 landowner’s causing of harm to the trespassers in this situation be understood as not
 intended.       Applying intention in the strict sense he proposes,230 the landowner’s
 intention could be construed as aimed solely to ‘defend against’ or ‘stop unlawful
 intrusion.’     If all this plays out—a would-be trespasser ignores all posted deterrent
 warnings, begins to enter, and is killed or seriously injured—must it be concluded that
 the trespasser was intentionally killed or injured by the landowner? For Finnis the
 answer is absolute and unproblematic: “Put strictly in the language of intent, . . . just as
 personally shooting a trespasser engaged in no act or threat of violence is simply killing
 or wounding with intent to kill or wound. So too setting a spring gun involves intending
 (conditionally but really) to do the same ‘without firing the shot.’”231
            At this point, however, it is opportune to consider very precisely whether Finnis’
 contention here is consistent with the implications of his endorsement of the
 unintended nature of the killing of the cargo plane’s pilot, the hijacker-terrorist,232
 assailants in justified self-defense, and civilians by the tactical bomber.233 In each of
 these situations, Finnis describes the killings as unintended. Consider again Aquinas’
 account of PDE as it operates in self-defense:


230
    See supra § III.A.1.,note 135 and accompanying text.
231
    CE Vol. II, supra note 3, at 200.
232
    See supra § III.A.3.a.ii, notes 152-154 and accompanying text.
233
    Id.


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            It is to be stated that nothing prevents there from being two effects of one act,
            of which only one is in intention [in intentione] and the other outside intention
            [praeter intentionem]. Moral acts, however, receive their character from what
            is intended and not from what is outside of intention. . . . From the act of
            defending oneself, therefore, two effects may follow: one being preservation
            of one’s life and the other the killing of an attacker. 234

 What prevents this same line of analysis from applying in the spring-gun/trespasser
 situation? Similar to the person exercising self-defense who seeks, while employing
 lethal self-defense, only to ‘stop the attack,’ so too, whether the landowner stands at the
 edge of his property warning the trespasser not to enter, or the landowner places the
 spring-gun with warnings on the edge of his property, can’t his intention be understood
 as solely to ‘stop the invasion.’ Would it not be entirely consistent for the landowner to
 assert, analogous to the case of self-defense, that death or serious injury of the trespasser
 plays no part of his plan or proposal and brings him no benefit. All the landowner may
 have as an intention by use of lethal force is to ‘stop the invasion’. Having disregarded the
 deterrent warning, there would be no other way to prevent the trespasser from entering.
           Applying Aquinas’ self-defense analysis mutatis mutandis to the trespasser
 situation, the activation of the spring-gun, or the direct shooting after warning in
 person, would have two simultaneous effects: first, within the intention [in intentione] of
 the landowner, it would ‘directly thwart and prevent unlawful entry onto one’s
 property;’ the other effect, outside the landowner’s intention, [praeter intentionem]
 ‘foreseeable harm to the trespasser.’ Here, unlike the earlier example of the hostage
 killing, the act of the landowner would not be one which “of itself does nothing but
 damage or impede a realization of or participation in . . . a basic form of human good.”235
 From one indivisible act of defending one’s property with lethal force from unlawful
 invasion, two effects immediately follow; first: (the good effect) the protection of land
 and possessions from illegal invasion; second: (the evil effect) unintended but foreseen
 injury or killing of the would-be trespasser.



      7.3. ‘A MAN CANNOT DO INDIRECTLY WHICH HE CANNOT DO DIRECTLY’

 At this point, it is appropriate to return to the departure point with which this article
 commenced.        In his article, Intention in Tort Law, Finnis introduced his theme with

234
    THOMAS AQUINAS, SUMMA THEOLOGIAE II-II, q. 64, art. 7. corp. (Fathers of the English Dominican Province
    trans., Benziger 1911) (1265-73); see also supra note 149 and accompanying text.
235
    NLNR (2011), supra note 64, at 118-19.


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 discussion of Justice Holmes’ comments in United Zinc Chemical Co. v Britt.236 There,
 Holmes states: “liability for spring- guns and mantraps arises from the fact that the
 defendant has . . . expected the trespasser and prepared an injury that is no more
 justified than if he had held the gun and fired it.”237 Here of course, Holmes is explicitly
 referring to the well-known maxim of English property law, mentioned in both Ilott and
 Bird. In Ilott, Judge Holroyd wrote: “a man cannot do indirectly which he cannot do
 directly;”238 and Justice Best, “you cannot do, indirectly, what you are not permitted to
 do directly.”239 Both of these judges, however, denied applicability of the maxim in Ilott,
 based on plaintiff Ilott’s assumption of the risk and proximate cause analysis.240 InBird,
 however, where the defendant posted no warnings, and admitted to setting the gun for
 the purpose of catching the trespasser, Plaintiff Bird’s attorney Sergeant Wilde argued:

             [I]t is clear . . . that such conduct would have been illegal, if the Defendant
             had been present, and had seen the Plaintiff enter his garden. . . . No man
             is permitted to do indirectly that which it is unlawful for him to do directly.
             The Plaintiff was not attacking the Defendant’s person, he was not attempting
             a felony; at the utmost, he was a bare trespasser: The Defendant, if he had
             been present, could not have apprehended, much less have shot him for the
             trespass.241

 Justice Borrough in Bird, adopted this same reasoning, “The Plaintiff was only a trespasser:
 if the Defendant had been present, he would not have been authorized even in taking him
 into custody, and no man can do indirectly that which he is forbidden to do directly.”242
            Plaintiff ’s counsel in Ilott presented a similar but ultimately unsuccessful
 statement of the same law on behalf of his client Ilott.

             [A] man shall not do indirectly that which he cannot do directly. The
             circumstance of the plaintiff ’s having notice that the guns were fixed in this
             wood, can make no difference; for, if the defendant had himself stood at the
             entrance with a loaded gun, and given notice to a trespasser that he would
             shoot at him if he entered, such an act would not therefore be justifiable.243

             [T]he law has assigned certain specific remedies for the protection of
             property; and even if they were insufficient, is it not competent to an

236
    See United Zinc., 258 U.S. at 268; See also supra notes 175-177 and accompanying text.
237
     Id.
238
    Ilott, at 678.
239
    Id. at 680.
240
    See supra § IV.A. 1.a. i) and ii), note 203 and accompanying and following text.
241
    Bird, at 914.
242
    Id. at 917.
243
    Ilott, at 676.


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             individual to have recourse to a contrivance, the effect of which may be to
             inflict wounds, or even death, upon a mere trespasser.244

 Of course, applying the maxim to the facts of Bird brings out its sense most lucidly. A
 landowner may not hide spring-guns and provide no warnings with the express intention
 of catching trespassers by killing or injuring. In these circumstances, the meaning of the
 injunction: ‘a man shall not do indirectly that which he cannot do directly’ is clear. Just
 as intentionally killing or injuring a trespasser is wrongful because unjustified, so too,
 intentionally, i.e., purposely, killing or injuring him mechanically is just as wrongful. In
 such a case, Holbrook’s conduct entails, i.e., necessarily involves, an intent to kill or injure
 trespassers.



      7.4. THE MAXIM AND UNINTENDED EFFECTS.

 But how would the maxim apply in view of this article’s claim that a landowner’s causing
 death or injury to the trespasser can plausibly be interpreted as unintended?
 Summarizing again the main arguments of this section: first, it was argued, consistent
 with the holdings of the judges in Ilott and Bird, that landowners who post warnings did
 not have an intention to kill or seriously injure trespassers but solely to deter them by
 means of fear and terror;245 second, it was argued that setting a spring-gun or even
 directly shooting at a trespasser after giving a warning not to enter, may be
 understood—along the lines suggested by Finnis’ adoption of Aquinas’ account of
 self-defense—as causing only the unintended side effects of injury or death.
           Both actions could be carried out solely with the intention of “stopping the
 invasion’ not in order to kill or injure. Hence the landowner’s chosen plan or proposal,
 i.e., his intention, would not entail an intention to cause death or serious injury as means
 or end. For, to recap, the landowner has no need for the trespasser to be injured or killed,
 only that the invasion be halted. Therefore, whether such halting results directly from a
 shot fired by the landowner in person, or indirectly and mechanically with a spring-gun,
 if warnings are given, harm to the trespasser could be understood as brought about as an
 unintended side effect.246 And thus, on Finnis’ own terms, his contention that the injury
 or killing caused by spring-guns must be intended, conditionally or otherwise, is falsified.
           Rephrasing the maxim to take into account the possibility here discussed, i.e.,
 that the harms are unintended, it would read: ‘One cannot indirectly cause as an

244
    Id.
245
    See supra § IV.B.1.,note 222 and accompanying text.
246
    See supra § IV.B.2.


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 unintended side effect, what one cannot directly cause as an unintended side effect.’ The
 critical question that remains, then, is whether it is permissible to directly cause as an
 unintended side effect the injury or death of a mere trespasser. Discussion up to this
 point of the article has focused exclusively on refuting Finnis’ specific claim that the use
 of spring-guns necessarily entailed an intention to kill or injure. This article has argued
 that, on Finnis’ own principles, no such intention is entailed. The fundamental moral
 question, however, still remains, i.e., whether such unintended injury or killing would be
 morally permissible.




          8. DEFENSE OF PROPERTY AND UNINTENDED KILLINGS CAUSED AS
          SIDE EFFECTS

 As discussed above in light of Aquinas’ full account of self-defense—causing unintended
 side effects, standing alone—does not ipso facto legally or morally vindicate the conduct
 and its unintended effect. As Aquinas wrote, in considering the permissibility of causing
 the unintended death or injury of an assailant:
               Now an act of this type, insofar as the preservation of one’s own life is
               intended, is not illicit since it is natural for every being to keep itself alive to
               the extent possible. . . . It is not necessary . . . that a man refrain from
               carrying out a measured act of defense to avoid the killing of another. A
               person has a greater obligation to provide for his own life than for that of
               another.247

 In order to determine whether the unintended injury or death caused to a trespasser
 either directly by shooting or indirectly by a spring-gun set with warnings may be
 justified— applying Aquinas’ PDE analysis of two effects—it is necessary to compare the
 nature of the good intended (in intentione) by landowners in light of the unintended
 (praeter intentionem) evil effect. In other words, in order to justify causing the unintended
 “evil effect” (serious harm or death of the trespasser), it is necessary to consider whether
 the importance of the intended effect (protection of property from unlawful entry,
 poaching, and theft) provides a reasonable justification for causing such unintended
 harm. The following section will explore whether common law has provided a resolution
 to this question.


247
      See supra note 149 and accompanying text.


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      8.1. THE VALUE OF HUMAN LIFE UNDER COMMON LAW

 As seen in the preceding sections,248 under common law, it was not permissible
 intentionally to use force to repel a mere trespass involving no threat to the household
 or person of the owner.249 Yet, scant attention is given in either Ilott or Bird by way of
 explanation for this expansive protection given to trespassers. The 1877 American case,
 Simpson v. State,250 however, is useful on this score:

             It is a settled principle of our law, that everyone has the right to defend his
             person, and property, against unlawful violence, and may employ as much
             force as is necessary to prevent its invasion. . . . But when it is said a man
             may rightfully use as much force as is necessary for the protection of his
             person and property, it must be recollected the principle is subject to this
             most important qualification, that he shall not, except in extreme cases
             inflict great bodily harm, or endanger human life. The preservation of
             human life, and of limb and member from grievous harm, is of more
             importance to society than the protection of property. Compensation may
             be made for injuries to, or the destruction of property; but for the
             deprivation of life there is no recompense; and for grievous bodily harm, at
             most, but a poor equivalent. It is an inflexible principle of the criminal law
             of this State, and we believe of all the States, as it is of the common law, that
             for the prevention of a bare trespass upon property . . . human life cannot
             be taken, nor grievous bodily harm inflicted.251

 These statements describing common law limitations on the use of force in ‘defense of
 property’ and its rationale, in context of the present discussion, can be summarized as
 follows: a landowner, in defense of his property involving a trespasser who poses no threat
 to the person of the landowner or who is committing no other felony, cannot lawfully
 injure or even apprehend the trespasser, much less kill him. Under common law, it was
 never permissible to inflict serious harm or threaten human life, much less kill, in order
 solely to protect one’s property. The value of human life and the protection of bodily
 integrity are superior to any mere property interest.




248
    See generally supra § IV.B.3., note 238-243 and accompanying text.
249
     Id.
250
    Simpson v. State, 59 Ala. 1, 9 (1877).
251
    Id. at 9.


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       8.2.     CULPABILITY FOR CAUSING UNINTENDED INJURY OR DEATH TO
       PROTECT PROPERTY.

       8.2.1. MORAL CULPABILITY

 The common law interest in subordinating the value and protection of property to the
 good of human life interfaces neatly with Finnis’ understanding of the basic good of life
 and the various intermediate principles of morality proposed by him.252 Of course, at the
 same time, none of these considerations of the value of human life explicitly take up the
 permissibility vel non of causing unintended harm. Nevertheless, when considering the
 moral evaluation of willingly causing side effects, the following remarks of Finnis are
 clearly germane:

               Moral responsibility and consequent legal liability for intentional infliction
               of harm are paradigmatic, exemplary.          Avoiding such wrongs is only a
               necessary, not a sufficient condition of acting justly. But the same respect
               for each individual whom one might have harmed as a means to an end [i.e.,
               as part of one’s plan or proposal; intentionally] carries over into, and
               informs, the quite different principle of fairness. Here one encounters the
               quite different principle of commutative injustice involved in the imposing
               of harmful foreseen side effects by persons who in their actions or omissions
               fail to comply with rational principles such as the Golden Rule.253

 Applying this to the preceding considerations, it is evident that causing serious injury or
 death to a person who is a bare trespasser—even if such consequences occur as unintended
 side effects—could never be justified by appeal to the intended good of mere ‘protection
 of property’.
              For Finnis, commutative justice “rectifies or remedies inequalities which arise in
 dealings . . . between individuals. These ‘dealings’ may be either voluntary . . . or
 involuntary, as where one man ‘deals with’ another by stealing from him, murdering
 him, or defaming him.”254 Based on the lack of proportion between the good intended
 ‘protection of property,’ and the serious harms caused by a landowner who, with
 warnings, directly shoots a trespasser or sets a spring-guns, such action is clearly
 unjustified. And this is true, even if the consequences of such actions are—strictly
 analyzed—properly understood as unintended. Such damage to a trespasser’s life and
 bodily integrity cannot be justified as a legitimate means for protection of property.
252
    See supra § II.A.2b., note 103 and accompanying and following text.
253
    CE Vol. II, supra note 3, at 215.
254
    NLNR (2011), supra note 64, at 178.


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 Such conduct is clearly a violation of commutative justice: “Compensation may be made
 for injuries to, or the destruction of property; but for the deprivation of life there is no
 recompense; and for grievous bodily harm, at most, but a poor equivalent.”255
            Under a revised version of the maxim, its corollary, it then follows that a
 landowner cannot ‘indirectly (with a spring-gun) cause to a mere trespasser as
 unintended damage what he could not directly (by shooting him in person) cause to him
 as unintended damage. Therefore, just as directly shooting a trespasser with a warning
 ‘in order stop the ‘trespass ‘ would be wrong, even if its results were unintended, so too,
 indirectly causing the same unintended result by setting a spring-gun is wrong, i.e., is a
 violation of the Golden Rule and commutative justice.
            Finnis confirmed in his discussion of the cargo bomber that causing foreseen
 serious harm or death, even if unintended, can violate the Golden Rule against “arbitrary
 preferences amongst persons.”256                  Applying those considerations here, one would
 presumably not want oneself or one’s loved ones to be subject to unintended serious
 injury or death for a bare trespass solely in order to allow a landowner to protect his
 property. By failing to respect practical reason’s grasp of a trespasser’s basic good of
 bodily integrity, an instantiation of the basic good of life, landowners would willingly act
 unfairly.257
            Similarly, as in the cargo bomber case, causing unintended harm to mere
 trespassers would violate Finnis’ intermediate principle barring “arbitrary preferences
 amongst values.”258 The landowner may view the protection of property as a means of
 promoting and ensuring his own well-being from dissipation due to poaching or theft;
 or, perhaps as vindicated by the sham rational that by “allowing trespassers to go
 unpunished would be unjust. It would encourage trespass and be a personal failure to
 exercise my duty as a citizen to aid in enforcement of the law.” Here, the landowner
 would violate this intermediate principle, by exaggerating the value of his own financial
 wellbeing and social reputation. These goods, however, are not desirable in themselves
 as instantiations of a basic good, but are purely instrumental goods beneficial for
 promoting various subordinate goods of life. In no case would it be appropriate to offer
 defense of property as a justification for seriously wounding or killing a mere trespasser,
 even if those consequences are unintended.

255
    See supra note 251, Simpson v. State, at 9.
256
    Supra notes 110-114 and accompanying text.
257
    Finnis uses ‘willfully’ here in the same sense as “not unintentionally” which he uses to mean unintended,
    but not the result of accident, mistake, or lack of foresight. “By another nuance of our language, is it also a
    case, I think, of ‘willfully’ killing—for ‘willfully’, to my ear, means not unintentionally. CE Vol. II, supra note
    3, at 184. Supra note 136.
258
    Supra § II.A.2.b. i), notes 103-109 and accompanying text.


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 Accordingly, with respect to the breach of both these intermediate principles, a
 landowner’s decision to set spring guns to shoot or risk shooting a trespasser, even with
 a warning, would not be in harmony with the first principle of morality: ‘the integral
 directiveness of practical reason.’ For to voluntarily engage in such conduct—causing
 unintended harm to the goods of life and bodily integrity of a mere
 trespasser—landowners must “fetter” and “deflect”259 the integral directiveness of
 practical reason. They do so by unreasonably exaggerating the value of their own
 participation in the basic good of life and its instrumental necessities (property, wealth,
 etc.) and by freely excluding practical reason’s appreciation of the other’s interest in the
 same goods.



       8.2.2. LEGAL CULPABILITY

 In earlier considerations relating to the search for a just criminal punishment for the
 cargo bomber’s causing of the unintended but foreseeably certain death to the pilot, it
 was noted how Finnis proposed that the most grievous form of homicide should be
 charged, viz., murder.260 Examining the Model Penal Code it was determined that the
 most fitting charge for the cargo-bomber would be murder pursuant to § 210.2(1)(a) for
 ‘knowingly’ causing homicide without adequate justification. As Finnis stated in that
 context: “[O]ne who inflicts death, even as a side effect, in order to effect such an
 instrumentalization of another has in the fullest sense, ‘no excuse’ for thus knowingly
 causing death. We should not complain if both law and common moral thought treat this
 as murder.”261
            What of the landowners causing unintended harm, either by shooting directly at a
 trespasser in order to ‘stop the invasion,’ or, alternatively, the landowner who sets a spring
 gun intending to deter by fear and terror? Given the serious violation of commutative
 justice in both cases, and Finnis’ expressed proclivity for homicide in this context, what
 charge, if any, could be brought against such landowners under MPC §210? Of course, in
 this context it is necessary to disregard the judges conclusion that Wilkes was free from
 guilt due to the fact that Ilott assumed the risk or proximately caused his own damages.
 As Finnis states: “It is the sort of conduct, the sort of transaction between persons, which
 cannot be justified by alleged assumption of risk or by appeal to the maxim volenti non fit
 injuria.”262

259
    Supra notes 88-94 and accompanying text.
260
    See CE Vol. II, supra note 3, at 194.
261
    Id.
262
     Id. at 202.


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              To repeat, MPC § 210 provides:

                (1) Criminal homicide constitutes murder when:
                          (a) it is committed purposely or knowingly; or

                          (b) it is committed recklessly under circumstances manifesting
                extreme indifference to the value of human life.

 Applying this provision to the current hypotheticals yields varying results. For the
 landowner who shoots directly at the trespasser without intent to kill, as described
 above, but only to ‘stop the trespass’263 presumably a ‘purposely’ state of mind would be
 excluded. If the landowner aimed and shot at a vital spot of the trespasser as the most
 effective way to stop the trespass, a murder charge might be brought under § 210.2(1)(a)
 “knowingly” because he arguably would know with “practical certainty” that the
 trespasser would be killed. This result is even more likely given the MPC’s further
 provision in § 2.02(7): “Requirement of Knowledge Satisfied by Knowledge of High
 Probability”. When knowledge of the existence of a particular fact is an element of an
 offense, such knowledge is established if a person is aware of a high probability of its
 existence [.]” Thus even if the landowner does not know with practical certainty that the
 death of the trespasser would occur, he can be charged and convicted of murder if the
 landowner knows when he shoots that the trespasser’s death is highly probable.
              On the other hand, if he does not aim at a vital spot, he cannot know with practical
 certainty that death will ensue. In this case, this hypothetical would be assimilated to
 the other hypothetical where the landowner sets a spring-gun, and it ends up causing
 unintended harm or death to the trespasser. For in both these scenarios it is neither the
 landowner’s purpose to kill nor does he know with practical certainty that the trespasser
 will die. In fact, in the spring gun case, the landowner doesn’t even know with certainty
 whether a trespasser will come at all. The landlord should be viewed only as risking the
 death of the trespasser. In such case, the only remaining option for a murder charge being
 brought against the landowner would be 210.2(b) for recklessly causing homicide:

                210.2. Murder.
                          (1) Criminal homicide constitutes murder when: . . .

                          (b) it is committed recklessly under circumstances manifesting
                extreme indifference to the value of human life.

 The crucial issue, of course, again relates to how the MPC defines its terms. The relevant
 definition of “murder” under MPC § 2.02(1)(b) is for recklessness manifesting “extreme

263
      See supra § IV.B.2, note 234 and accompanying text.


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 indifference to the value of human life.” The MPC defines recklessly in the following
 manner.

             Recklessly. A person acts recklessly with respect to a material element of an
             offense when he consciously disregards a substantial and unjustifiable risk
             that the material element . . . will result from his conduct. The risk must be
             of such a nature and degree that, considering the nature and purpose of the
             actor’s conduct and the circumstances known to him, its disregard involves a
             gross deviation from the standard of conduct that a law-abiding person would
             observe in the actor’s situation.264

 Official commentary to this section explains that § 210.2 (1)(b) was adopted to capture a
 kind of recklessness more culpable than that required for mere ‘reckless manslaughter.’
 “This provision reflects the judgment that there is a kind of reckless homicide that
 cannot fairly be distinguished in grading terms from homicides committed purposely or
 knowingly.”265 MPC commentary further notes that this subsection was adopted to
 capture common law “depraved heart” murder.266
            The commentary clarifies that the critical distinction between reckless murder
 and the lower graded reckless manslaughter relates to the nature of the risk created and
 consciously appreciated by the actor given the nature of his conduct, i.e., the seriousness
 of the “substantial and unjustifiable risk.” The commentary states that a distinction
 between the recklessness required for manslaughter versus that for “extreme
 indifference” recklessness murder, “is a matter of degree and the motives for risk
 creation may be infinite in variation.”267                  Accordingly, the MPC provides that the
 distinction between the recklessness mens rea justifying conviction for murder versus
 manslaughter cannot be defined more precisely. “. . . [I]it must be left directly to the
 trier of fact under instructions which make it clear that recklessness that can fairly be
 assimilated to purpose or knowledge should be treated as murder and that less extreme
 recklessness should be punished as manslaughter.”268
            Here, even assuming, as just argued above, that the killings were not practically
 certain to follow but were risked as unintended side effects, they would have been utterly
264
    Model Penal Code, § 2.02(2)(c) (Am. Law Inst, 1985). As applied to homicide, the commentary indicates that
    it requires a finding that “presupposes an awareness of the creation of a substantial homicidal risk too great
    to be deemed justifiable by any valid purpose that the actor’s conduct serves.”
265
    Model Penal Code, § 2.02(2) cmt. 4 (Am. Law Inst, 1985).
266
    “Insofar as Subsection (1)(b) includes within the murder category cases of homicide caused by extreme
    recklessness, though without purpose to kill, it reflects both the common law and much pre-existing
    statutory treatment usually cast in terms of conduct evidencing a “depraved heart regardless of human
    life” or similar words.” Id.
267
    Id.
268
    Id.


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 unjustified. And given that a serious unjustified risk of causing death would rank very
 high on a culpability scale, it would clearly involve “a gross deviation from the standard
 of conduct that a law-abiding person would observe in the actor’s situation.”269 The callous
 and ruthless disregard for trespassers’ lives and their bodily integrity, combined with lack
 of any truly justifying considerations, makes this scenario a paradigmatic illustration of
 ‘extreme indifference to the value of human life’ or ‘depraved heart’ murder.
              Accordingly, notwithstanding Finnis’ resolute efforts to attribute culpability to
 landowners based on their purportedly intended killing when they shoot trespassers
 directly or set spring-guns, in fact the preceding analysis has shown that on his own
 principles it would make little difference in terms of moral or legal culpability. As
 explained above, the cargo bomber’s unintended causing of the death of the aircraft pilot
 was deserving of the highest form of moral censure and the highest levels of legal
 culpability (murder).             So too, foreseeably causing, or risking causing, without
 justification, trespasser deaths—plausibly construed on Finnis’ own principles as
 unintended side effects—would rightly be condemned as morally corrupt and deserving
 of the most severe criminal punishment for murder by “depraved heart.”




          CONCLUSION

 The central purpose of the preceding article, as stated in the introduction, has been to
 challenge Finnis’ contention that a landowner who sets a spring-gun or uses other lethal
 force to deter a trespasser, even if the landowner has posted clear warnings, entails that
 the landowner intentionally kills or seriously injures that trespasser, Defense of the
 thesis, challenging Finnis’ contention, culminates in the arguments presented in the last
 part, Part IV. These concluding arguments propose, employing Finnis’ own principles,
 that threatening a trespasser with lethal force, either by a hidden spring-gun, or by
 directly shooting at him solely in order to ‘stop the trespass’ can—by analogy to Aquinas’
 account of self-defense— cause consequences that can be regarded as unintended side
 effects, aimed solely and defensively at ‘stopping the invasion’ i.e., the trespass. While
 causing such unintended side effects would be deserving of the most severe criminal
 punishment, this article has been devoted to arguing, a fine but critical point, viz., that,
 in keeping with the Judges’ opinions in Ilott and Bird and based on Finnis’ own principles,
 they are not necessarily intentional or part of the actor’s intention.

269
      Model Penal Code,§2.02(2)(c) (Am. Law Inst, 1985).


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 More specifically, this thesis is dependent upon the considerations developed in earlier
 parts of this article. Fundamentally, all these considerations flow from analysis of Finnis’
 natural law theory of basic goods. For, as Finnis explains, these basic goods provide
 incipiently all the reasons for whatever a person may rationally choose and do. This
 theory of the basic goods, in turn, leads Finnis to his first principle of morality, the
 integral directiveness of practical reason. This principle, naturally grasped by practical
 reason in view of all the basic goods, taken integrally, requires a person in all their
 deliberations and choices to respect each of those basic goods. Taken together, in their
 entirety, they engender a ‘moral’ sense of ‘ought’ in the practical cognition of a human
 person. This moral ought, however, is violated whenever a person chooses, not from
 robust deliberations taking into account all the basic goods, but in circumstances where
 one has willingly permitted the fullness of practical reason to be ‘fettered’ due to the
 influence of feelings or other truncated considerations. In these situations, the person
 acts unreasonably, i.e., immorally by failing to apply all of one’s naturally grasped
 rational principles.
               At the same time, Finnis recognizes that it is impossible to act in the world without
 causing some harm, even to instantiations of basic goods. The principle he develops to
 account for this is the maxim “Respect for Every Basic Value in Every Act.” Accordingly,
 this maxim functions as a prohibition only on intentionally causing damage or destruction
 to an instantiation of any one of the basic goods. For choosing to intentionally destroy
 or seriously damage an instantiation of a basic good would be to deny and pervert one’s
 very identity as a rational acting person, thus creating a moral schizophrenia and making
 oneself to be the kind of person who voluntarily acts immorally. As Finnis writes: Thus
 one who intends to destroy, damage, or impede some instantiation of a basic human good
 necessarily acts contrary to reason.”270
               This article, of course, has been primarily concerned with damage to the basic
 good of ‘life.’ While the intermediate principle prohibits all direct intentional damage or
 destruction of basic goods, it does not, and from a practical point of view cannot,
 absolutely forbid causing harm to basic goods, even the good of life. Finnis resolves this
 problem by developing a very precise conception of intention and choice. In particular
 he posits that an intention bears precisely on what one chooses as part of one’s plan or
 proposal in acting. Anything caused by one’s conduct that is outside of that plan or
 proposal comes about as an unintended side effect. Of course, Finnis following Aquinas,
 recognizes that just because something is unintended on this schema, does not make it


270
      CE Vol. II, supra note 3, at 195.


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 morally permissible. Rather, causing or accepting unintended side effects, can and must
 be justified only in terms of the good one does intend.
               The concluding arguments of this article employ Finnis’ own very precise
 account of intention and choice.           Building upon his general natural law theory, it
 proposes that using lethal force against a trespasser in order to ‘stop a trespass,’ can by
 analogy to Aquinas’ account of self-defense, as adopted by Finnis, be regarded as an
 unintended side effect praeter intentionem (outside one’s intention). As Finnis puts this
 critical point, “Whatever consequences lie outside one’s proposal, because neither
 wanted for their own sake or needed as a means, are not synthesized into one’s will . . . .
 They are side effects, incidentals.”
               Of course Finnis also points out that simply because some consequences of
 conduct lie outside one’s plan or proposal and can properly be understood as
 unintended, does not eo ipso settle the question of whether that conduct is permissible,
 i.e., moral. Referring to unintended side effects, Finnis states: “One may well be culpable
 in accepting them. But the ground of culpability will not be that one intended them, but
 that one wrongly, for example unfairly, accepted them as incidents of what one did
 intend.”271
               This article, applying these critical points, argues, in keeping with the opinions
 of the judges in Ilott and Bird¸ that a landowner’s intention in setting spring-guns with
 warnings is not necessarily to kill or injure, even conditionally, but instead to use the real
 threat of lethal force to deter by terror and fear. Further, this article contends that if
 that deterrent fails, even the direct application of lethal force ‘to stop the trespass’ and its
 subsequent causing of serious harm or death could be viewed on Finnis’ own principles
 as unintended. A landowner does not need the trespasser to be made dead or seriously
 injured to protect his property. He only needs to scare him off. Further, just as in Aquinas’
 self-defense argument, the victim does not need the death of an assailant, but even so is
 entitled to use deadly force to ‘stop the attack.’ The lethal consequence need play no part
 in his plan or proposal. So too, death or serious injury of the trespasser is not necessary for
 the landowner to accomplish his goal of protecting his property. All he needs is to ‘stop the
 trespass’ to ‘stop the invasion.’ Thus, if any killing or serious injury occurs, caused by the
 landowner’s conduct, albeit immoral and unlawful, could be understood as unintended.
               These are the main arguments proposed by this article in support of the view
 that Finnis has erred in maintaining that a landowner’s use of lethal force, backed up by
 warnings, must include a conditional intention to kill or seriously injure, if the
 trespassers enter.
271
      Id. at 213.


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 Yet, even if this article is successful in putting Finnis’ main thesis into doubt, i.e., if the
 arguments presented above plausibly undermine his thesis, there is an important point
 of convergence. For whether one understands, as Finnis does, the triggering of the guns
 and injury or death to the trespasser as part of the landowner’s plan or proposal, i.e., as
 his intention; or whether one interprets the triggering of the weapons as an unintended
 side effect, either option would represent instances of conduct whose consequences would
 be unlawful and grievously immoral. As the article also argues, under common law, no
 adequation exists between the good of protecting property and causing death or serious
 bodily harm, even if unintended, to trespassers who pose no threat to the landowner’s
 person. As was stated in Simpson v. State,272 “Compensation may be made for injuries to,
 or the destruction of property; but for the deprivation of life there is no recompense; and
 for grievous bodily harm, at most, but a poor equivalent.”273
            In fact, the penal result under either approach may not differ in substantial
 degree. Both would describe landowners who are prime candidates for murder charges
 under Model Penal Code § 210.2. A landowner who intentionally kills or injures will be
 liable for “purposely” killing under § 210.2(1)(a).             The landowner who causes such
 unjustified killing as unintended side effects, should appropriately be charged with
 “depraved heart killing,” pursuant to § 210.2(1)(b), for recklessness manifesting “extreme
 indifference to the value of human life.”
            The distinction between Finnis’ theory of these mantrap cases and that advocated
 by this article may seem of little consequence. But its significance can be best appreciated
 by considering Finnis’ discussion of the difference for one’s moral character between on
 the one hand choosing, and thus intending, to harm a basic good directly, and, on the
 other, causing such damage as an unintended side-effect.

              [C]ommon morality is not indifferent to outcomes. But it includes among
              the significant outcomes the impact of choosing and intending upon the
              character of the chooser. It attends to the fact that choices last. The proposal
              which one adopts by choice in forming an intention, together with the
              reasoning which in one’s deliberation made that proposal intelligently
              attractive, remains, persists, in one’s will, one’s disposition to act. The
              proposal (and thus the intention) is, so to speak, synthesized into one’s will,
              one’s practical orientation and stance in the world.274



272
    See generally Simpson, 59 Ala. 1.
273
    Id. at 9.
274
    CE Vol. II, supra note 3, at 213.


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 The actor who conditionally intends the death of a person as part of their plan or proposal,
 either as an end or as a means to an end, is the kind of person who chooses to subordinate
 all the good in that person completely to the interest of another. This kind of person
 reflexively makes themselves to be a murderer, of the worst kind.
            On the other hand, one may act culpably, but without any intention to kill or
 seriously injure the trespasser. In this case, one acts wrongfully in accepting that side
 effect when there is no justifying reason.

             Whatever consequences lie outside one’ proposal, because neither wanted for
             their own sake nor needed as a means, are not synthesized into one’s will.
             Though one may foresee these results and accept that one will be causing
             them, or the risk of them, on is not adopting them. But the ground of
             culpability will not be that one intended them, but that one wrongly, for
             example unfairly, accepted them as incidents of what did intend. The effect
             on one’s character of accepting them is not like the dynamic, shaping effect
             that forming an intention (even a reluctant intention) has. 275

 One has committed a wrong, and perhaps a serious wrong. Yet, one has not reflexively
 constituted one’s own self, one’s basic character, into that of a killer, but less culpably,
 a reckless person. While this distinction may fade in importance to some, at least the
 reckless person has some residual, perhaps tenuous, attachment to the basic good of life,
 an attachment that remains and can be used to correct their moral compass. The direct
 man-killer on the other hand, like Aristotle’s intemperate man, has lost the first principle
 by which he could work to amend his character. A true man-killer is one who has lost sight
 of and appreciation for the basic good of life.
            One   scholar,     providing      commentary        on    a   pertinent      passage        from
 Aristotle—appropriate for summing up and closing the present study—describes the
 Greek philosopher’s assessment of the devastating impact on a person’s moral character
 that occurs when one loses the first principle of right action, i.e., Aristotle’s intemperate
 man:

             The intemperate man, for example, does not suffer regret and his actions are
             fully in conformity with his choice. Indeed, lack of regret is his salient feature.
             . . . His ruling principle has been destroyed and so he no longer cares about
             being virtuous. As a result, he experiences no psychological turmoil. His soul,
             like that of the virtuous, is harmonious; his reason and his desires drive him in
             the same vicious direction. He is clear-headed about his actions even though,

275
      Id.


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                 because he is morally obtuse, their ultimate import eludes him. As Rorty puts
                 it, ‘he has ends—he is the sort of person who can act in the light of his ends—
                 but he has the wrong ends.’ Because his reason is corrupt, the intemperate
                 person is . . . neither pardonable nor curable. 276




276
      David Roochnik, Aristotle’ account of the Vicious: A Forgivable Iinconsistency, 24 HIST. PHIL. Q. 209 (2007) (Internal
      cites to Aristotle omitted), commenting on a passage from Book VII of the Nichomachean Ethics. In this
      passage he is quoting Amélie Oksenberg Rorty, Akrasia and Pleasure, in ESSAYS ON ARISTOTLE’S ETHICS 267, 271
      (Amélie Oksenberg Rorty ed., University of California Press, 1980).


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