Tested by the pragmatic criterion of practical consequence, these entities are remarkably elusive. Even if they exist, law has no practical means of locating them and in fact ignores them on any but the most superficial verbal level. Judges and juries do not, as a precondition to finding that a killing was intentional, peer into the defendant's mind in quest of the required intent. They look at the evidence of what the defendant did and try to infer from it whether the deed involved advance planning or other indicia of high probability of success, whether there was concealment of evidence or other indicia of likely escape, and whether the circumstances of the crime argue a likelihood of repetition-all considerations that go to dangerousness rather than to intent or free will. The legal factfinder follows this approach because the social concern behind criminal punishment is a concern with dangerousness rather than with mental states (evil or otherwise), and because the methods of litigation do not enable the factfinder to probe beneath dangerousness into mental or spiritual strata so elusive they may not even exist.

XREF: Connects to the legal realism tradition and pragmatic jurisprudence (Holmes, Pound), where law is judged by practical consequences rather than abstract doctrine.

Richard A. Posner, Richard A. Posner - What Ha…, loc. 85