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Actio Libera in Causa

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Abstract

The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defences they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defence. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases.

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Notes

  1. Versions of the papers collected here were first presented at a workshop on the topic of actio libera in causa hosted by Claire Finkelstein and the Centre for Law and Philosophy at the Law School of the University of Pennsylvania in December 2011. Many thanks to Professor Finkelstein, her colleagues and Dean, and the participants of that stimulating workshop, are due.

  2. It has received more attention from continental, especially German, scholars: see Leo Katz’s contribution herein for references.

  3. A position articulated by Simester (2009).

  4. Following Raz (1972) insight that, contra R. Dworkin (1978), rules can conflict as well as principles: Raz (1972).

  5. I think we should distinguish between affirmative defences (understood just as encompassing justifications and excuses, and so including self-defence) and denial defences (that negative an offence element, and so including mistakes of fact that negate some element of the crime), for reasons I explain below, and thus I do not completely accept the taxonomy on which Finkelstein relies, but nothing hinges on this for the point in the text.

  6. See, for example, Perka v. the Queen [1984]; the Court explicitly refers to Fletcher (1978) when it invokes the notion of “moral innocence”.

  7. See Williams (1988), p. 269) and Finkelstein (1999, p. 163) for discussion.

  8. See Moore (1993, pp. 35–36) for an articulation and defense of the traditional view. He rejects the view that proximate causation should be understood as set by moral fault, however.

  9. For a multi-jurisdictional review of some of the difficulties involved in applying the doctrine in tort cases, as well as discussion of the role the causal connection between the plaintiff’s wrongdoing and moral fault for that wrongdoing play in determining when the bar to recovery should apply, see Fridman (1972).

  10. See (Husak 1998, 2007), and the literature spawned by his discussions. In Dimock (2010), I have suggested that our practice of holding extremely intoxicated offenders liable for their involuntary conduct is a counter-example to the ‘control requirement’ that Husak proposed should replace the ‘act requirement’.

  11. A person who is unconscious would lack any subjective mental state that might be specified as the mens rea of a crime as well, but involuntariness is not a primarily a mens rea defence. Involuntariness, automatism and sleepwalking are normally defences to crimes of negligence and even absolute liability, which demonstrates that they negate the actus reus, rather than mens rea.

  12. The phrase “extreme intoxication” is taken from Canadian criminal law. See R. v. Daviault [1994] 93 C.C.C. (3d) 21. The Canadian criminal code makes it clear that persons will be held responsible for crimes they involuntarily commit if the cause of their involuntariness is self-induced intoxication: S. 33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognised in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person. Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 16, s. 33.1. (Emphasis added.).

  13. Finkelstein and Katz (2008), quoting Model Penal Code § 221.1(1) (1985).

  14. It is because most defendants who commit crimes while voluntarily intoxicated have little culpability with respect to the causal connection between their ingestion to intoxicants and their subsequent conduct, and typically no culpability with respect to the subsequent crime at all (excluding crimes in which intoxication is itself an element of the offence), that our treatment of intoxicated offenders is so unjust in practice (even though it is typically appealed to as a paradigmatic application of imputation rules). See Dimock (2009, 2011a, b, and 2012).

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Cases

  • Perka v. the Queen, [1984] 2 S.C.R. 232.

  • R. v. Daviault, [1994] 93 C.C.C. (3d) 21.

  • R. v. Stone, [1999] 2S.C.R. 290.

  • R. v. Theroux, [1993] 2 S.C.R. 5.

  • R. v. King, [1962] S.C.R. 746.

  • R. v. Ruzic, [2001] 1 S.C.R. 687.

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Dimock, S. Actio Libera in Causa. Criminal Law, Philosophy 7, 549–569 (2013). https://doi.org/10.1007/s11572-013-9245-6

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