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Fleeting Mental States

Published online by Cambridge University Press:  03 October 2000

Peter Cane
Peter Cane*
Affiliation:
Research School of Social Sciences, Australian National University, Canberra
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Abstract

The philosophical concept of acting intentionally does not entail a perceptible time gap between intention and action. We may say of a person who acts on the spur of the moment that their action was intended or intentional; but in such circumstances, intention and action may seem to merge in a way that makes it difficult to disentangle the mental and physical elements of the person's conduct. The author argues that in this context the tools and techniques used by philosophers of mind and action may not provide us with the best understanding of the social practices of blaming found in the criminal law.

Type
Shorter Articles
Information
The Cambridge Law Journal , Volume 59 , Issue 2 , 29 June 2000 , pp. 273 - 283
Copyright
Copyright © Cambridge Law Journal and Contributors 2000

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Footnotes

I have greatly benefited from discussions with Tony Connolly, Claire Finkelstein and Declan Roche.

References

1 I use this term and its cognates to cover both acts and omissions as appropriate.

2 E.g. Bratman, M., Intention, Plans and Practical Reason (Cambridge, Mass., 1987)Google Scholar.

3 Mele, Alfred calls them “proximal intentions”: Springs of Action: Understanding Intentional Behaviour (New York, 1992)Google Scholar.

4 This is not, of course, inconsistent with the requirement that mens rea and actus reus must coincide—i.e. if the mental state is formed prior to the prohibited conduct, it must persist until the time of the conduct.

5 Ashworth, A., Principles of Criminal Law, 3rd. edn. (Oxford, 1999), 177Google Scholar.

6 R. Cross, “The Mental Element in Crime” (1967) 83 L.Q.R. 215, 226.

7 Finnis, J., “Intention and side-effects” in Frey, R.G. and Morris, C.W. (ed.), Liability and responsibility: Essays in law and morals (Cambridge, 1991), 37Google Scholar.

8 Adams, F. and Mele, A., “The Role of Intention in Intentional Action” (1989) 19 Canadian J. of Philosophy 511–532CrossRefGoogle Scholar. Curiously, Mele is prepared to accept that fleeting intentions may not be conscious: “Strength of Motivation and Being in Control” (1997) 34 American Philosophical Quarterly 319, 323.

9 Searle, J.R., Intentionality (London, 1983)CrossRefGoogle Scholar, 83ff. Searle's views are discussed by Adams and Mele, n. 8 above. One disadvantage of Searle's approach is that under it actions which, by repetition, become “automatic” can be described as intentional if they are means to an end in relation to which the agent has formed a prior intention (e.g. changing gear in the process of executing a prior intention to drive to work: Searle, ibid., 84-85). This account reduces the distinction between intentionality and voluntariness to the point where the phrase “intentional act” becomes (almost) pleonastic.

10 Mele, n. 8 above (1997).

11 Mele, n. 3 above, 185.

12 Searle, n. 9 above, 263.

13 Duff, R.A., Intention, Agency and Criminal Liability (Oxford, 1990), 46Google Scholar.

14 Ibid., 128.

15 Ibid., 132.

16 Ibid., 47. Duff analogises prior intentions to promises ibid., 132-133.

17 See the discussion of dualism ibid., ch. 6.

18 These approaches are simplified paradigms: they do not exactly represent the views of anyone in particular, or perhaps of anyone at all. Nor are they the only possible approaches.

19 Which Ashworth refers to as “the factual element” of the autonomy principle: n. 5 above, 2728.

20 N. Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 M.L.R. 621.

21 Bratman, n. 2 above, 1.

22 Rawls, J., A Theory of Justice (London, 1972), 20, 48–51Google Scholar. Rawls developed the idea of reflective equilibrium in the context of explicitly normative moral philosophy, but the basic procedure also seems to fit the sort of analytical philosophy we are concerned with here.

23 Dworkin, R., “The Original Position” in Daniels, N. (ed), Reading Rawls: Critical Studies of “A Theory of Justice” (Oxford, 1975), 22Google Scholar.

24 Bratman, n. 2 above, 1-2.

25 For a clear example of this strategy see Zimmerman, M., An Essay on Moral Responsibility (Totowa, NJ, 1988)Google Scholar, ch. 1, esp. 13-15. See also Dennett, D.C., The Intentional Stance (Cambridge, Mass, 1987), 47Google Scholar.

26 The idea of “commonsense” is also pervasive in judicial (and non-judicial—see Hart, H.L.A. and Honoré, Tony, Causation in the Law, 2nd edn. (Oxford, 1985)CrossRefGoogle Scholar) analyses of causation.

27 Bell, J., Policy Arguments in Judicial Decisions (Oxford, 1983)Google Scholar, ch. VII.

28 In DPP v. Morgan [1976] A.C. 182, 214 Lord Hailsham said that unreasonableness of belief (of consent to intercourse) can only be evidence of (and no more than evidence of) lack of honest belief. I am going one step further and saying that at least in cases where the accused gives no testimony as to their mental state, the only question the law can answer is whether, given what the accused did and said in the relevant circumstances, it is reasonable to conclude that he or she had the required mental state. Legal liability should not turn on questions that cannot be answered with the resources available.

29 In Dennett's terms (n. 25 above, esp. 17, 25-26, 39-40), the law takes “the intentional stance” to understanding and explaining human behaviour.

30 See Rosenberg, D., The Hidden Holmes (Cambridge, Mass, 1995) 126, 138–140Google Scholar; Shavell, S., Economic Analysis of Accident Law (Cambridge, Mass, 1987), 26–32, 264-265CrossRefGoogle Scholar.

31 This is an evidentiary presumption, and should not be confused with an irrebuttable presumption such as “a person is presumed to intend the natural and probable consequences of their conduct”.