The actus reus of Dr. Caligari.

• Author: Williams, Bernard Arthur Owen
• Position: Criminal responsibility in cases of somnabulism or hypnotic suggestion - Symposium: Act & Crime

Michael Moore's book is subtitled "the philosophy of action and its implications for criminal law."(1) For much of his discussion, this formulation does express the way in which he proceeds: an account of action that is philosophically (as he often puts it, "metaphysically") motivated yields the kinds of distinctions and conclusions that are needed in order to support central principles of the criminal law, particularly as these have been formulated in the tradition reaching back to Jeremy Bentham and John Austin. In particular, three fundamental principles of the criminal law are defended, on the basis of philosophical considerations, from philosophical skepticism. These are the principles that Moore calls the voluntary act requirement, the actus reus requirement, and the double jeopardy requirement.(2) Moore's many subtle and interesting discussions succeed in showing that these principles can be defended against skepticism by philosophical argument.

However, there are areas in relation to which the subtitle seems to me to represent, as one might say, an exaggeration. In these areas, the best that one can do is to take some distinction or conclusion necessary to the criminal law and show that a theoretical account of it can be given that is at least not inconsistent with formulations motivated by the philosophy of action. It seems obvious, on reflection, that there must be areas about which this is true. The criminal law, after all, has special aims and purposes, and the requirements that it imposes on describing people's actions are unlikely to coincide throughout with distinctions that are motivated quite independently of those special purposes. I have argued elsewhere that any conception of responsibility involves the four elements of cause, intention, state, and response.(3) Responsibility is (with certain comprehensible exceptions) standardly ascribed to a person as the cause of a state of affairs; the questions will arise of what that person was trying to bring about and of what state of mind he or she was in at the time. Finally, an ascription is made with the aim of directing some response to that agent in this connection.

There is no one setting of these various factors, particularly those of intention and state of mind, that will suit every purpose, and this is manifestly so in contemporary law, where the setting of the requirements on intention are typically different in tort law from what they are in the criminal law. All the more, then, the various settings of these conditions in our everyday descriptions of action are unlikely to coincide already with those required by various branches of the law. There is no reason to believe that the various distinctions we use will provide, ready-made, what the criminal law needs, without taking account of special requirements within the criminal law.

Moore has no need to deny this point, and he often seems to accept it. He says, for example: "[T]he relevant question here is not: can any complex action be performed without the performance of a volitionally caused bodily movement? Rather, the question is: can any of the complex actions prohibited by Anglo-American criminal law be performed except by volitionally caused movement?"(4) This, in itself, does not require much modification or redirection of the philosophy of action by the concerns of the criminal law. The relevant question might collect its answer on purely philosophical grounds, and the only way in which the discussion will have been shaped by the interests of the criminal law will be the restriction of the question to a certain class of actions that are the law's concern. However, even this modest step does require the notion of the kind of actions that are the criminal law's concern, and that notion itself is not going to be generated by the philosophy of action.

A more significant consideration arises when the law demands answers (as, of course, it often does) which everyday users of action descriptions would not feel compelled to give--which, indeed, they might well feel disposed in common sense not to give. Consider the well-known questions of where and when A killed B.(5) If A squeezes the trigger in one jurisdiction and B is hit by the bullet in another, or if A administers the poison at one time and B dies as a result very much later, there is a notorious difficulty in answering questions of "where" or "when." The philosophy of action--more specifically, perhaps, the analysis of action descriptions--certainly shows why there is a difficulty, and indeed it is a condition on the adequacy of such a philosophy that it should be able to explain why there is a difficulty. However, there is no reason to suppose that philosophical procedures themselves can answer that difficulty. This is because we need a special reason, such as the reasons provided by the demands of the criminal law, to want to answer the question at all.

The point is similar to those raised by indeterminacy through vagueness. It is a requirement on the philosophy of language that it should make plain what our difficulty is in saying when people become bald or (to take a more contentious case) in saying at what point a fertilized ovum becomes a human baby. But those explanations themselves should not be expected to answer the question. Aristotle was prepared to move the same point into metaphysics itself, when he said that it was sensible not to seek more precision than is allowed by the underlying subject matter.(6) But this absorption of the issue into metaphysics is, in relation to the present questions, slightly misleading. Aristotle's suggestion is that if the metaphysics of the situation (the underlying subject matter) does not in itself permit the distinction to be made, then the distinction should not be made. But this does not follow--all that follows is that the distinction should not be made if one is solely interested in metaphysics. If the distinction has to be made for some other reason, as when, for legal reasons, it must be determined where or when Smith was killed, then one has to go beyond metaphysics or the philosophy of action to make distinctions that one cannot get from those subjects if they are left to themselves.

II.

Moore respects this point in a good deal of his practice. However, there is at least one area in which Moore tries to make the philosophy of action generate a determinate answer when it cannot do...