Would it be right, then, to the fault in murder to an intent to kill? That would have the merit of simplicity, but would it strike the right note socially? There are powerful arguments in favour of saying that there are other killings where an intent to kill cannot be , and yet where the moral or social culpability is equal to that in most intentional killings. Of course, one cannot be adamant about whether they merit the "murder", because that is a question of drawing the line between murder and manslaughter, which is not susceptible of any . It is hard to argue that the of murder should be smaller or larger (unless the death penalty or a mandatory life sentence follows); it is a question of social judgment.

Let us consider some of the possibilities. The fault for many serious offences is intent or recklessness: why should this not suffice for murder? The question is whether all killings in which the defendant is of the risk of death are serious to warrant the term "murder". One answer sometimes given is that they are not, because a driver who overtakes on a bend, knowingly taking the risk that there is a car travelling in the opposite direction, should not be labelled a murderer if a collision and death happen to ensue. This example that a sympathy for motorists with overwhelm any tendency to . One might ask whether motorists are ever in knowingly taking risks with other people's lives. Yet if the example is a little, so that the overtaking is on a country road at night and the risk is known to be slight, it becomes questionable whether the causing of death in these should be in the same way as intentional killings. This is not to suggest that motorists should be treated differently. The point is rather that, even though knowingly taking risks with other people's lives is usually unjustifiable, taking a slight risk is less serious than intentionally causing death. In discussing the boundaries of murder, we are concerned with classification, not exculpation.

To classify all reckless killings as murder might be too broad, but the point remains that some reckless killings may be thought no less heinous than intentional killings. Can a satisfactory line be drawn here? One would be to draw the line by reference to the degree of probability. Murder is in those situations where D caused death by an act or omission which he knew had death as the probable or highly probable result. A of this test of foresight of high probability is used in several other European countries; it was introduced into English law by the decision in Hyam v. DPP (1975), but in Moloney (1985) on grounds of uncertainty.

A second is to frame the law in such a way as to make it clear that the court should make a moral judgment on the gravity of the defendant's . 210.2 of the Model Penal includes within murder those reckless killings which manifest "extreme indifference to the value of human life". Scots law treats as murder killings with "wicked recklessness", a phrase which directs the court's attention to the of the killing. Both the Model Penal test and the Scots test may be reduced to circularity, however, for when one asks how extreme or how wicked the recklessness should be, the only possible answer is: "wicked or extreme enough to the stigma of a murder conviction". Admittedly, the Model Penal does contain a list of which may amount to extreme indifference, which the courts and increases the of verdicts in a way that Scots law does not, but the essence of both is that there is no way of describing those non-intentional killings which are as heinous as intentional killings. Their protagonists argue that the law of murder is so important socially that derogation from the of certainty should be allowed in favour of more by the courts; opponents argue that the of certainty is needed here to reduce the risk of verdicts based on discriminatory or , such as distaste for the defendant's background, allegiance, or other activities.