Mistakes about Intention in the Law of Bioethics

Much of law and ethics at the end of life turns on whether there is a moral and legal distinction between killing and letting die. That distinction, in turn, relies on a difference between intention (what one purposely aims to bring about in his actions) and foresight (what one merely believes to be likely or even substantially certain). On this distinction rests the plausibility of the legal prohibition against physician-assisted suicide and many other important moral and legal prohibitions in bioethics, the ethics of warfare, and much else. The distinction between intention and foresight is the subject of frequent philosophical and legal criticism, ranging from Thomas Scanlon’s recent book Moral Dimensions (the first chapter of which is devoted to an argument against the principle of the double effect and the intention–foresight distinction) to legal scholarship. My goal in this article is to bring the work of Stanley Hauerwas to bear on the law of bioethics, which I will accomplish through a discussion of how debates over intention in moral philosophy, moral theology, and law have shaped—and confused—bioethics. Writing about Stanley Hauerwas on law and bioethics may strike those who know Hauerwas’s work as an odd project—just as Peter Geach noted in his essay The Religion of Thomas Hobbes that perhaps he had chosen to write on an empty subject, much like G.K. Chesterton’s Lord Darnaway put such titles as The Snakes of Ireland and The Religion of Frederick the Great on the spines of the dummy books in his library. So also one might think about “Hauerwas on bioethics and law,” for one of Hauerwas’s (mostly salutary, to my view) contributions to theological bioethics has been his persistent refusal to acquiesce to the overly professionalized and bureaucratic