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DOI:10.1093/acprof:oso/9780198265795.003.0022
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V. In The Microwave
What may philosophy learn from law? The original suggestion was that it might learn the
robustness of some familiar distinctions, judged from the way in which they behave
under pressure, when the law has to have an answer. There are indeed examples that
fit this model. It is important that they are not most likely to show up in connections which
from the point of view of legal theory are the most controversial. Their robustness may
show up, rather, in the fact that they are taken for granted in legal argument, and are not
made the focus of attack by any of the parties. Consider the matter of intent in tort or
criminal law. It may indeed be controversial in a particular connection whether it matters
or not that the agent intended the outcome; and it may, further, be controversial what
would count as showing that he did intend the outcome (or at any rate should be treated
as someone who intended the outcome). But behind all this there will be a steady stream
of assumptions about situations in which it is absolutely clear that he did intend the
outcome, and that it is relevant that he intended the outcome.
Again, even when it is in dispute whether the agent intended this outcome, the dispute
itself represents him as having done some things intentionally. It may be thought that this
is simply uninteresting, since to this (p.494) extent the law is uncontroversially using
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VII. Conclusion
The Picture with which I started has some truth in it. Importantly, it is not just the
success of our concepts under the extreme conditions of the law (p.497) that has
something to tell philosophy, but also their occasional failure to survive that exposure.
Philosophy will be able to learn the right lessons, however, only if there is an adequate
theory (in part provided by political philosophy itself) about what features of the
concepts, and what special features of the law, have contributed to those successes and
failures. (p.498)
Notes:
(1 ) Some philosophers of Austins tendency may have thought that common sense was
consistent, self-validating, and free of ideology. The present discussion makes no such
assumptions.
(2) J. L. AUSTIN , A Plea for Excuses, in PHILOSOPHICAL PAPERS (1961); Regina v.
Finney, [1874] 12 Cox 625.
(3) Much of my argument will be at a general level, where distinctions between different
legalare as will not be very relevant, but the law of non-intentional torts is what I shall
principally have in mind, and this has some significance in relation to a contrast with the
criminal law. See infra note 5.
(4) This is one of several dimensions (as he recognizes) in which there are limitations to
Michael Moores project of grounding the criminal laws requirements on criminal agency
in a general metaphysics of action: see MICHAEL S. MOORE , ACT AND CRIMETHE
PHILOSOPHY OF ACTION AND ITS IMPLICATIONS FOR CRIMINAL LAW (1993) and
for discussion, the symposium, Act and Crime, 142 U. PA. L. REV. 1455 (1994). On the
particular issue of somnambulistic and other non-standard states, see my The Actus Reus
of Dr. Caligari, supra, at 1661.
(5) I am primarily concerned here with non-intentional torts, see supra, note 1. The
distinction between intentional torts and crime raises further issues.
(6) I am not clear whether anyone takes such an ideal seriously. Anyone who did do so
would have to recognize that it implies constraints on what can count as a crime.
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