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This reproduction is the best copy available UMI Invotuntariness, Agency and the Criminal Law Dennis Klimchuk A thesis submitted in conformity with the requirements for the degree of Ph.D. Graduate Department of Philosophy University of Toronto O Copyright 1995 by Dennis Klimchuk National Library Bibliothkque nationale I*! of Canada du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wellington Street 395, rue Wellington OttawaON KIAON4 Ottawa ON K1A ON4 Canada Canada Your hh Vofr6 referonce Our I% Narre reference The author has granted a non- L'auteur a accorde une licence non exclusive licence allowing the exclusive pennettant a la National Library of Canada to Bibliotheque nationale du Canada de reproduce, loan, distribute or sell reproduire, preter, distribuer ou copies of this thesis in microform, vendre des copies de cette these sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format electronique. The author retains ownershp of the L'auteur conserve la propriete du copyright in this thesis. Neither the droit d'auteur qui protege cette these. thesis nor substantial extracts eom it Ni la these ni des extraits substantiels may be printed or otheMrise de celle-ci ne doivent Ctre imprimes reproduced without the author's ou autrement reproduits sans son permission. autorisation. "Involuntariness, Agency and the Criminal Law" Dennis Klimchuk Department of Philosophy, University of Toronto Ph-D.thesis, 1995. Abstract How and where we ought to draw the distinction between voluntary and involuntary action is an old and enduring philosophical question. I consider the answers given to this question in the context of the common law. I approach the issue initially through a review of the development, from its first appearance in pre-Norman law to present day law, of the principle that only voluntary actions may be punished (the voluntariness requirement). The principal question on which I focus is how to make sense of the role ot public standards of behaviour in the legaI distinctions between voluntary and involuntary action without it turning out that "involuntary" just means "unworthy of punishment." The bulk of this study is taken up with a consideration of this and related conceptual problems through an examination of the recent development of the defence of automatism in Canadian and EngIish law. Automatism is raised as a defence when the accuwd claims to have lost conscious control over the movements of her body. I investigate the models of human action and its explanation to which the defence is committed, and the relationship between these models and the goals of criminal law through an examination of certain formative periods of the two defences to which automatism is most closely related, insanity and provocation. Against the background of this investigation, I argue that, while any acceptable theory of punishment entail the voluntariness requirement, the norms on the basis of which we sort voluntary and involuntary actions are different from the norms on the basis of which we decide which sorts of actions and persons deserve punishment. I sketch a general account of involuntary action, according to which to say of someone that her actions were involuntary is to urge the acceptable of a description of hcr doings according to which they were the effect of some external cause. It follows that the distinction between voluntary and involuntary action depcnds upon the distinction between the agent and the circumstances in which she acts. I conclude by considering the prinapal issues raised by this more basic distinction. Acknowledgments Many people helped make my time as a graduate student at the University of Toronto Philosophy Department a happy and productive one. I hope I will not offend if I reserve this space for thanking only those most directly related to this project. Several professors not only provided helpful comments on works-in-progress, but helped shape my thinking on the criminal law in particular and philosophical inquiry in general: David Dyzenhaus, Andre Gombay, Ian Hacking, Arthur Ripstein and Martha Shaffer. I am very pleased to count them among my colleagues and friends. Extra thanks must go to Ian and Arthur, my supervisors. Vo one could ask for more generous and insightfui supervision. Thanks, also, to Anne Curnrning, for more than I can say. Finally, speaal thanks must go to my parents, whose support throughout my education-- emotional, financial, and otherwise-was unwavering. My father, sadly, did not live to see me complete my doctorate, though as a model of integrity and perseverance, he was there throughout. Knowing how pleased he would have been helped make it all worthwhile. I dedicate the following to his memory. Table of Contents Introduction I How and where we ought to draw the distinction between voluntary and involuntary action is an old and enduring phlosophical question. 1 will consider the answers given to this question in the criminal law. This investigation will proceed by way of an examination of what lawyers call the voluntariness requirement, the principle that only voluntary actions may k punished. Chapter one: From the AngIo-Saxons to Bracton Early formulations of the voluntariness requirement can be found in the laws of the pre-Norman kings, and again in Bracton in the thirteenth century. In the tenth and eleventh centuries, the involuntariness of an accused's action was a qualification on the victim's right to enjoy compensation. By the thirteenth century, the involuntariness of an accused's action had become reconceptualized as a qualification of the defendant's capacity to bear responsibility for her or his actions. Chapter two: From Bracton to Blackstone In its basic form, the voluntariness requirement remains unchanged from the thirteenth to the eighteenth centuries. But for Bracton, involuntariness was one sort of defence, while for Hale and Blackstone (who wrote in the seventeenth and eighteenth centuries, respectively), involuntariness is a quality shared by all valid criminal excuses. Hale and Blackstone formulate taxonomies of involuntariness defences which differ only in small detail. However, for Blackstone, and not Hale, the fact that an accused acted involuntarily explains why he or she is excud from criminal responsibility. Chapter three: Since B lackstone The scope of the category of involuntary action has narrowed considerably since Blackstone's time. Actions performed in ignorance or error are no longer considered involuntary actions, as they were by Hale and Blackstone. Since the nineteenth century, actions perfonred under duress or necessity have been often thought of as "voluntary but compelled," in Stephen's words. On the other hand, provocation was reconceptualized in the early nineteenth century as an involuntariness defence. The last fifty years have seen the development of the defence of automatism, raised when the defendant claims to have failed to have enjoyed conscious control over the movements of her body. Chapter four: The problems This survey of the involuntariness requirement suggests some basic th~about the relationship between voluntariness and responsibility. The most important of these is the autonomy thesis: the principles by which we distinguish between voluntary and involuntary action must be conceptually separable from the principles by which we determine whether someone should be punished. If the autonomy thesis is false, the voluntariness requirement is a tautology. But a quick look at the structure of the involuntariness defences suggests that the distinction between voluntary and involuntary action is drawn, in part, on the basis of the standards of behaviour to which we are held by the criminal law. So perhaps the autonomy thesis is false. We can sort through these and dated conceptual probterns through an examination of the development of the defence of automatism. Chapter five: The pre-history of automatism The earliest reported cases of what we would now call automatism were sleepwalking caws in the late nineteenth century. In one of these cases, Fain u. Commonwealth (28791, the court sought but could not find a rule according to which those predisposed to sleepwalking could be found culpably negligent if they had not taken steps to ensure that they would not cause harms to others. Such a standard of negligence was developed in the early twentieth century in a series of driving cas. Chapter six: The emergence of the general defence The second half of this century saw a proliferation of conditions which were recognized to gave rise to a condition akin to sleepwalking, where the agent fails to enpy conscious control over the movements of her body. This expansion of the category of automatism gave rise to the central conceptual problem with the defence: the distinction between insane and non-insane automatism. The need to draw this distinction occasioned renewed focus on the structure of the insanity defence. By 1973, the two dominant tests of automatism had appeared: the "proneness to recur" test, and the "internal cause" test. Chapter seven: Psychological-blow au tornatism in Canada, 1970180 There was a series of Canadian cases in the 1970s in which defendants claimed to have been caused to lose conscious control over the movements of their bodies because they had received a psychological blow. Psychologxal-blow automatism put the conceptual problems of the defence, especially the distinction between insane and non-insane automatism, into sharp relief. R. v. &bey (1977)established the rule that a successful defence of psychological-blow automatism requires the defendant to show that the psychological blow which causd her to dissociate might have similarly affected an average, normal person. Rnbey also marked the adoption in Canadian law of the internal cause test over the proneness to recur test. Chapter eight: The legal quagmire A recent Canadian sleepwalking case, R.