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Response to Alexander.

The case Professor Alexander poses at the beginning of his rejoinder, that of the intentionally drunken officer, is a variant of a familiar problem. One does something, usually ingesting drugs or alcohol voluntarily, which then makes one's, subsequent behavior involuntary. Alexander's case is slightly different in that the officer intentionally gets drunk with the further intention (as part of the course of action) of sinking the Bismarck. Why is this a problem for my analysis?

He proposes three "escape routes" from his argument (though I confess, I'm not sure what I'm escaping from). In discussing the "second route," he seems to concede that my analysis would work for his counter example since ". . . the officer's past voluntary acts led him to be where he was when the wave caused him to lose his balance." But, he goes on, ". . . This route will not allow us to distinguish cases of proper strict liability and negligence liability from cases of no liability due to the absence of a voluntary act." Why not? The issue is the existence of an independently specifiable act or course of action or voluntary omission preceding an involuntary motion that somehow makes us responsible for the involuntary motion. Let us take an example. Suppose one reads but ignores a clear warning label on drugs, then operates a vehicle, then--lapsing into unconsciousness--injures someone. Surely, this is a case of negligence. Following my analysis, it requires the injurious consequence and an act intentional under a variety of descriptions (taking medication, ignoring the directions, and so on) carried out in a proscribed manner, that is, violative of a duty of due care. In the involuntary motion cases, there is no series of prior voluntary acts which we could specify and would characterize as negligence. Of course, all involuntary motions are preceded by various voluntary acts. But not all are preceded by a series of such acts which both cause those involuntary motions to cause injury and are done in a negligent manner. Alexander offers no argument that we cannot distinguish cases of negligence from what Holmes calls no act cases, only the naked assertion that we cannot. But the above approach, following my discussion of negligence in the paper, seems clearly to do that.

The one example Alexander does offer as counterargument is the strict liability case, the one in which sinking the Bismarck is a strict liability offense. Note first that this offense is defined by a consequence alone. Typically, this is not how strict liability offenses are defined. Rather, they are constituted by a course of action producing death, injury, or property damage, such as manufacturing impure drugs or causing injury while doing demolition work. Defining the offense so broadly and with a consequence only (that is, sinking the Bismarck any old way) allows Alexander to cast his net so widely that it gives credence to his claiming: "But now the requirement of a (prior) voluntary act is so weak that no case will fail to meet it (a strict liability standard)."

But even so, there are many cases that will fail to meet it. If the officer is thrown from an airplane, and, after crashing through the wardroom roof, strikes the button, surely it was no act of his that sank the Bismarck. He was a mere projectile. If I enter the wardroom and shove the officer against the button, no course of action of his is intentional under the description of sinking the Bismarck. Here again, perhaps in a less obvious sense, he is a projectile. True, some voluntary acts of the officer do, in the causal chain, lead up to my shoving him. Although that seems to be the implicit criterion Alexander thinks the second route represents, it does not. In my discussion of strict liability, I clearly say--indeed the logic of the Davidson model requires it --that the act (of sinking the Bismarck) must be intentional under some description for the officer to be agent and, thus, for the act (and consequence) to be attributable to him. So, merely being a human projectile in the sinking of the Bismarck and having carried out some voluntary acts under any old descriptions prior to being a projectile will not qualify those acts for attribution of strict liability. They must be acts intentional under some description which are the proximate cause of the damage, and there must be notice that strict liability attaches to such damage. Where Alexander may have put his finger on a fascinating issue is in raising the question of just how one characterizes proximate cause to include strict liability cases but not to include a human projectile case. That, however, is a problem for another day. It does not infect my analysis.

Certainly, the Davidson model works for intentional crimes. I read Alexander as agreeing to that. I see only a naked denial in his claiming that it fails in the negligence case. Lastly, I think that the counterargument against strict liability simply fails. Although much of Alexander's argument is insightful and helps us clarify the application of Davidson to the act requirement, nothing in what he says prevents us from using Davidson's analysis to good effect in elucidating the act requirement.

James W. Child is Associate Professor of Philosophy, and Senior Research Fellow in the Center for Social Philosophy and Policy, Bowling Green State University, Bowling Green, Ohio.
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Title Annotation:response to Larry Alexander in this issue, p. 98
Author:Child, James W.
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
Words:893
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