Involuntariness, agency and the criminal law

by Klimchuk, Dennis

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.