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Donald Davidson and Section 2.01 of the Model Penal Code.

Section 2.01 of the Model Penal Code sets out the Code's version of the notoriously difficult "act requirement" or the requirement of an actus reus. A number of philosophers of law have commented upon the confusion which surrounds the notion of an act as a requirement for criminal liability. Hyman Gross holds that

...acts are not bodily movements. Those who talk as though they were do not reflect common sense, but simply resolve summarily by fiat an important problem that all of us in a more thoughtful moment perceive as difficult and obscure.[1]

Later he tells us that "the act itself, or rather the very idea of an act, still remains veiled in mystery."[2] Glanville Williams has also stated: "Considerable confusion reigns, both in ordinary speech and in legal speech, on what is meant by an act."[3] And D. O'Connor has added that "the thoroughgoing analysis of the actus reus necessary for criminal liability has yet to arrive,"[4] a claim that Douglas Husak cites with approval and agreement.[5]

Problems Stemming From the Act Requirement

This issue is not merely a definitional one. There are several traditional legal problems surrounding the act requirement. One involves omissions. If an affirmative act is the paradigm for criminal liability, how can one be liable for not acting?

A standard account of an act for purposes of the act requirement in criminal law is that it be a "willed muscular contraction." This is John Austin's[6] account, as it is Holmes's[7] and J.S. MNill,s.[8] This view of a criminal act has been roundly criticized by H.L.A. Hart, among others.[9] Hart's criticism turns on two points, one of which is precisely ours.[10] Omissions are not muscular contractions of any sort, willed or otherwise. In this sense, they are non-events. Hart tells us"...it is absurd even to attempt to fit omissions into such a picture...."[11]

A broader, but essentially simpler, definition is exemplified by the Model Penal Code (hereinafter Code), where wer are told "'act' or 'action' means a bodily movement whether voluntary or involuntary."[12] But this definition is faulted by Meir Dan Cohen precisely because it fails to include omissions (as well as possession).[13]

A second, even more serious, problem is posed by negligence and strict liability. So-called involuntary actions, such as muscle spasms or movements while unconscious, must be excluded if the act requirement is to mean anything. And they are excluded in the Code.[14] Yet, unintentional action must be able to create liability in cases of negligence or strict liability, without throwing out the act requirement. That is, if I negligently run over an infant in my car, it fails to be murder precisely because the killing, indeed the collision, was unintentional. How is this different from an involuntary act? The acts of driving, colliding, and killing are mine, and, based on a negligence doctrine, I can be held liable for them. But I cannot be held responsible if I lapse into unconsciousness at the wheel (so long as it is not through earlier fault of my own). Intuitively, we sense a difference between an unintentional and an involuntary act, but how can we explain it? In neither case was I guilty of performing the act of intentionally running over someone. What is the conceptual difference between unintentionally driving over an infant and the behavior of unconsciously doing so? And why should that conceptual difference make a moral and legal difference?

In a way similar to negligence, but totally dissimilar to involuntary acts, actions giving rise to strict liability are unintentional. If I am liable, under a strict liability statute, for harm done to persons by my explosive demolition work, it is assumed that the harm was unintentional, lest it be battery or murder, that is, an intentional wrong. Yet, I am responsible for the effects of the demolition, that is, of the effects of my act. Again, how do we distinguish between so-called involuntary actions and merely unintentional ones, and why does that distinction justify a difference in liability between the two?

There are several other problems which we shall not address directly in this paper but upon which our analysis of an act should shed light. How can the very same act, such as entering a bank, be part of the actus reus of attempted bank robbery in one context and completely innocent in another? This is especially perplexing in the case of impossible attempts[15] For example, suppose that a culprit believes she is performing one act, for instance, killing someone with poison, while, in fact, she is only putting sugar in someone's coffee. Is it not the case that we punish her for her intention (a thought) alone? What is it about her action that incurs liability? Another problem area for the act requirement is in so-called status criminality. How is it that a statute criminalizing being a drug addict violates the act requirement[16] while one criminalizing being drunk in a public place does not.[17]

The Strategy of the Analysis

I propose here to examine the act requirement as it appears in the Model Penal Code, merely to limit the scope of ur inquiry. I am hopeful that much, if not all, of what we say will be applicable to the theoretical foundations of criminal law generally. Limiting our attention to the Code, and especially the language of the Code, makes the project manageable. With this limitation we can provide, perhaps, the beginnings of an analysis of the philosophical foundations of the act requirement. The approach I shall take is implicit in contemporary action theory. It has its root in Wittgenstein,[18] was developed by Elizabeth Anscombe,[19] and came to full fruition in the work of Donald Davidson.[20] In short, I believe that these action theorists have provided us with all the conceptual machinery we need to provide legal theory with a dispositive analysis of an act, of an omission, and of the notion of voluntary conduct. We can only provide a preliminary explication of some of these notions here. But it should be one which is both internally coherent and consistent with the two claims which the criminal law makes: (1) Voluntary action is especially appropriate as a subject for the attribution of criminal liability;[21] (2) Intentional actions, and omissions, as well as negligent conduct and strict liability, can all be ordered under the concept of voluntary action for the purposes of (1). (Note that some alternative account of an act--not ours--might show us that acts were not especially fitted to attributions of responsibility. It might even show us how they cannot be fitted into a regime of responsibility. Moreover, such an account might be the true account. Still, it could never do what we seek to do, namely provide the account of an act that demonstrates its centrality both to the notion of responsibility and to the criminal law. Such an alternative account as we have been imagining would tend to overthrow, not support and underlie, the conceptual structure of the criminal law.)

Our analysis of an act, on the other hand, will provide us with a most pleasant surprise. We shall find that the very characteristic which is essential to action is that which also provides the paradigm mental state as an element in criminal liability, that is, intention. The degree to which the actus reus and the mens rea are conceptually intermingled has always been vaguely felt in the law but never fully explicated. John Austin believed that all action was intentional and, therefore, all culpable action was intentional.[22] (As we shall see, he was correct.) Yet others, including Salmond, have taken issue with Austin's view because he appears to leave no room for negligence, nor for strict liability.[23] (Salmond was wrong. All action being intentional does leave room for negligence, and even strict liability, as we shall see below. However, Salmond was certainly correct that Austin failed to show how this is so.) Glanville Williams claims that there is "a mental element in an act" distinct from the mens rea requirement. He says:

An act is a voluntary movement. This definition splices part of the mental element of crime on to the physical element (emphasis in original).[24]

Again, he is quite correct, but we receive no account of this metaphorical "splicing"; we continue to face what Gross dubbed the "veil of mystery." This metaphor can be unpacked and the "veil of mystery" removed by use of action theory.

A word about method. We shall not proceed, as lawyers are often wont to do, by looking at problem cases first. We shall only briefly consider negligence and strict liability, but in enough depth to see that our approach can handle both, while still retaining the act requirement and its constituent "mental element" (per Williams). We shall not even discuss possession, speech as crime, or crimes of status. We shall not discuss attempts or other inchoate crimes. Further problem cases will be explicitly excluded as we come across them. Our method will feature a rigorous and persistent limitation of our attention to the paradigm case, that of voluntary conduct or the voluntary act, and within that broader category, even more narrowly, we shall focus first and primarily upon intentional action. (We shall spend considerable time on so-called "involuntary acts," not because they are problem cases, though they are, but because we must understand them if we are to understand voluntary acts.) Our reason for this nearly exclusive concern with the paradigm case is simple. If Gross, Williams, and Husak are correct, and I believe they are, heretofore we have not understood the paradigm case of an act at all. We surely must understand voluntary conduct and, more narrowly, intentional action, and its special fitness as a basis of criminal liability before we can hope to make sense of problem cases like omissions, negligence, and strict liability.

Model Penal Code 1.13(2): Acts and Bodily Movements

The Code, in 1.13(2), sets out the following definition:

"[A]ct" or "action" means a bodily movement whether voluntary or involuntary...

As an analysis of ordinary usage of our common sense concepts, this is patently false. Imagine that I render you unconscious with a drug and rig a string and pulley in such a way that I can lift your arm up and down as you slumber. There is no way in which you can be said to "act" or in which that arm movement is your "action." Yet, the Code would be required to include it as an "act," for it is an involuntary bodily movement, or so it surely seems. To be sure, your arm goes up, but this is something done to you or something which happens to you. It is in no way your act or action. Indeed, Wittgenstein has remarked, in discussing this example, that action just is the ingredient which is missing when your arm goes up in such a way:

Let us not forget this: When "I raise my arm," my arm goes up. And, the problem arises: What is left over if I subtract the fact that my arm goes up from the fact that I raise my arm.[25]

That very difference, that part which is "left over", is our quarry.[26] It is the heart of what action is all about.

Thus, the definition of "act" or "action" in 1.13(2) is too broad in that it includes those movements (for example, your arm going up in this way) which are not genuinely acts.[27] But perhaps 1.13(2) was not intended to capture the full intuitive sense of "act." Perhaps it means merely to offer a stipulative definition of "act" and "action." That is, "for the purposes of this code, we shall stipulate the meaning of 'act' to be...," for with Humpty Dumpty in Through the Looking-Glass, we can (sometimes) make words mean precisely what we want them to mean. This is especially true of technical terms in the law. If so, this is quite all right, but then we must firmly excise all common usage or common sense penumbra from the formal, stipulated meaning. That, the law and the interpreters of the Code have consistently refused to do.[28] Little wonder, for more than ordinary usage is at stake. Since, in our common sense world, acts are paradigmatically those entities for which we are appropriately held responsible, a criminal code, to do what we intend it to do, must reflect this. Failure to do so renders it arbitrary and even irrational from the standpoint of common sense and the ordinary person who is subject to the Code. To criminalize skin color (status) or sneezes and muscular spasms (so-called "involuntary acts") seems not only immoral, but at odds with the rule of law and the very notion of a legal system.[29]

Model Penal Code 2.01(2): Voluntary and Involuntary Acts

The strategy of 2.01(2) is partially to define the problematic (and we shall soon see, contradictory) notion of an "involuntary act" mentioned in 1.13(2) by giving an incomplete list of such "acts" in section 2.01(2) (a) (b) and (c). These include reflexes, convulsions, bodily movements during sleep or unconsciousness, and those under hypnosis or hypnotic suggestion. This last, namely hypnosis, is so problematic as to be beyond our simpleminded analysis, but the first four are quite important. Notice that they share one very significant feature. There is no sense at all in which we can be said to intend a reflex, a convulsive muscular movement, or a movement carried out when unconscious or asleep. Thus, we cannot hold a driver directly responsible for a collision that transpires after he has become unconscious at the wheel.[30] (We will not hold him responsible at all if his unconsciousness did not occur through his own fault.) Similarly, we will not hold Fain, the somnambulant gunman in the famous Kentucky case, guilty of murder, even if his finger pulled the trigger.[31] Indeed, the lack of intention may be the essential similarity among these examples of non-liability, given in Code 2.01(2) (a), (b) and (c).

The importance of our common sense notion of intention (not yet sophisticated in either a legal or philosophical way) becomes even more evident when, after the specific examples in 2.01(2)(a), (b) and (c), we get in (d) a general characterization of what are not "voluntary acts."

(d) a bodily movement that otherwise [other than (a), (b), or (c) above] is not a product of the effort or determination of the actor, either conscious or habitual.

This section proceeds negatively. Involuntary acts are not what? They are not the "product of the effort or determination of the actor, either conscious or habitual?" Consonant with our ever tightening focus upon the paradigm, we shall leave out a consideration of habitual action (a category about which philosophers remain both devided and confused).[32] Voluntary action then, in the paradigm case, is the product of the conscious effort or determination of the actor. Could this be intentional action? In other words, when I intentionally throw the ball to Jones, is it my conscious effort and determination to get the ball to her? This seems right, but in order to grasp this and its significance completely, we must define "intention." We shall begin by providing a legal definition, conveniently from the Code itself. Let us then look at the relevant part of section 2.02 wherein the culpability requirements (historically, the mental element) are set out.

Intention in Model Penal Code, Section 2.02

Historically, the mental element has been broken down into intention and negligence, with recklessness occupying a sort of vague middle ground, and with strict liability, a poor cousin, provided with little or no conceptual or philosophical underpinning. Typically, strict liability is justified on so-called public policy grounds, as if it had no theoretical connection with either the voluntary conduct or mental element requirements. As we shall see, it actually has a very close connection, one our account captures. In turn, intention is analyzed as either that which is brought about purposely or that which is brought about knowingly but not purposely, that is by "double effect" as both philosophers and continental legal systems are inclined to call it. Thus, to cite a hoary example, when the surgeon removes the tumor from the pregnant woman's uterus, he knows he will kill the fetus, but is not his purpose to do so. It is his purpose only to save the woman. The death of the fetus occurs by double effect. Anglo-American law has not historically been as careful to distinguish the knowing intention from the purposive one as has the continental tradition.[33] However, the Code drops the general category of intention and goes on directly to define "purposely" in [Section]2.02(2) (a), and "knowingly" in [Section]2.02(2) (b). As we focus upon the paradigm instance of intention and intentional action, we shall be concerned only with sub-section (a) (i) and the notion of purposely:

2.02(2) (a) (i): A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result (emphasis added)....

"Purpose," then, becomes the conscious object of the actor's action. Intention, in the paradigm case then, is acting with a purpose, where the purpose is the conscious object of the actor's bodily movement.[34] This is very like the "effort or determination of the actor" set out in 2.01(2) d where "voluntary act" is defined. That is, my purpose in acting is typically what I am trying to bring about, what I am making efforts to bring about, what I am determined to bring about. Expressed in each of these ways, we are talking about the conscious object of my action, that is my purpose as set out in 2.02 (2) (a) (i).

Can we yet say that we have shown that voluntary action, as defined in 2.01 d (2), just is intentional action in the paradigm case of intention as purpose, defined in [Section].02(2) (a)? It is tempting to make this equation but we cannot do so, at least not this way. This was Austin's mistake, pointed out by Salmond. Not all culpable action intentionally brings about a harm or a wrong, as in the case of negligence and strict liability. The mental element, the mens rea, requires that we intend the act as a criminal act. If we kill someone we require, in order to have a case of murder, not merely that there be some purpose or other (that is, some "conscious object" or other) to our bodily movements, thus making it voluntary action. In an act of murder, we must intend not just something by our action; we must intend to kill.[35] This point is made most clearly in a case cited by Glanville Williams.[36] In Eaton v. Cobb[37] the court held that when someone intentionally opens a car door into the flow of traffic, that intention (to open the car door) is not sufficient to make the act an intentional (willful) obstructing of the highway. In other words, it is not enough that we are making efforts to bring something about, that is, the open car door, or that we have some conscious object of our action, that is, to have the car door open, We still do not have intentional obstruction of traffic. Yet, this is enough to make the opening of the car door voluntary action as defined in 2.01(2) (d). [Section]2.02(2) (a) (i), on the other hand, where "intention" is defined, requires, for intentional homicide, for example, that one is trying to bring about that person's death. Code 210.1 (1) and 210.2 (1) (a), the murder statute, requires the purposive causing of the death of another.[38] To return to the case of Eaton v. Cobb, one commits an intentional wrong not when one intentionally opens the car door but when one intentionally obstructs traffic.

Thus, if A kills B in a boxing match, A's movements while boxing, including his fatal blow, are clearly voluntary action. A was not asleep or convulsively jerking his arms; his purpose (his intention) was to hit B on the jaw or to knock him out or to win the match. (Notice the variety of ways we can describe what A did intend. This multiplicity of apt descriptions becomes important for Davidson's theory of action.) Whatever the boxer's purpose was (or however we describe it), it was not to kill his opponent. The killing was not intentional. Thus, A lacked mens rea, and his killing of B, as opposed to his hitting of B, was not intentional, that is, was not the conscious object of his action. So, merely identifying voluntary action in 2.01(2) with intention as paradigmatically expressed in 2.02(2) (a) (i) is a confusion. The blow was an intentional act given some purpose or intention, for example, winning the match. But, it was not expressive of the prohibited intention, namely killing. Moreover, identifying voluntary action with intentional action would have the flaw that Salmond found in Austin's analysis. That is, there is no room for liability based upon negligence or strict liability. Indeed, actions performed with negligence or under a strict liability standard would be involuntary, a clearly mistaken result.

But we are very nearly home, for there is an intimate connection between the act requirement and intention in the philosophical conception of action. Moreover, it can be demonstrated to obtain in those two parts of the Code, that is, [Sections]2.01 and 2.02. First, however, we need to borrow a piece of conceptual machinery from philosophical action theory, a notion introduced by Elizabeth Anscombe and used to great advantage by Donald Davidson.[39] An action can be described in many ways. As the action theorists say, it can be an action under various descriptions. To use one of Davidson's examples, when I turn on the lights in my darkened home, I flip a switch, I illuminate the room, perhaps I alert a prowler. They describe the same action.[40] In each case, it is "described under" a different description. Note that this action is intentional under some of these descriptions; for example, I illuminate the room intentionally. Under others it is unintentional; for example, I alert the prowler unintentionally.

Action Defined: Doings Intentional Under Some Description

Now, let us define a category broader than actions, that of doings. There are many things which I do, some of them intuitively classifiable as actions, others not. My writing this line is both something I do and an action of mine, as was my shooting baskets with my son last night. It seems that all actions are doings but not all doings are actions. Thus, when I bleed or stumble or grow older, each is described as something I do, though none is an action of mine. (The test is that none of these three doings is intentional under any description, but this begs our forthcoming definition.) We can give a rough grammatical criterion in English for doings. We use verbs in continuous tenses and active voice to describe them.[41] Note that, as with actions, doings can occur under more than one description. Thus, we can say, "Barbara's knee is bleeding" and "Barbara is suffering the effects of a fall."

Now we are in a position to give a good working definition of an action. An action is a doing which is intentional under some description. Realizing the philosophic import of this definition is, indeed, one of Donald Davidson's significant contributions. He tells us, for example:

Action does require that what the agent does is intentional under some description (emphasis added)....[42]

Davidson relates this necessarily intentional character of action to agency this way:

And so I think we have one correct answer to our problem: a man is an agent of an act if what he does can be described under an aspect that makes it intentional (emphasis added).[43]

However, this "definition" of action is incomplete. First, we defined the genus, that is, a doing, of which action is a species, only intuitively and partially (and primarily grammatically, as opposed to philosophically). But a more serious defect in the definition is that we are treating "intention" as it appears in the definition of "intentional" as an undefined primitive. This will work only if we have a strong and clear notion of intention as part of our ordinary language and its common sense ontology and only if, further, that definition is coherent and fits the requirements of the law. Unfortunately, such a clear definition is part of neither.[44]

However, we do have a handy substitute for a full-blown theory of intention as it might be contained in common sense ontology, a conceptual sketch, if you will. This substitute is the Model Penal Code, [Section]2.02(2) itself. It presents the outline of a theory of intention, sketchy to be sure, perhaps even simpleminded, but a rudimentary theory nonetheless. [Section]2.02(2) (actually, we shall limit ourselves to subsection (a) (i) of 2.02(2)) will give us all the theoretical machinery we need for our present, quite modest purposes.

Davidson's Definition of Action and the Model Penal Code

So, it is intention that characterizes action. And it is, for the Model Penal Code, purpose which, paradigmatically, characterizes intention. Thus, by substituting "purposive" for "intentional" in the Davidsonian formula, we can say that an action must be purposive under some description.[45] Recall our unfortunate boxer A, who unintentionally killed B with the blow by which A intended to knock B out. A's blow is a voluntary action under Code 1.13 and 2.01 in that it was intentional under the description "A hit B on the jaw" and" A knocked B out" but not under the description "A killed B". Though the action can appropriately be described this way, it is, under this description (a killing), unintentional. We know this because it was A's purpose to hit B on the jaw and to knock B out, that is, it was the conscious object of his action in each case, but not his purpose to kill B. B's death was not the conscious object of A's action.

Let us return to the notion of "voluntary action" and "involuntary action" for a moment. We saw above that the notion of an "involuntary action" is discordant with both our linguistic intuitions and our common sense concepts. All actions, we want intuitively to say, are voluntary. Having your arm lifted by a string and pulley operated by me while you sleep is not your action. Now, we can see that it is more than discordant, it is contradictory. A reflex, blinking one's eyes, for example, or a convulsive movement or one done in sleep is not intentional under any description; it is not an action, nor is it an "act." Yet these are the Code's own examples of "involuntary action." We should call them involuntary movements or even involuntary behavior but not involuntary action or acts (or even conduct, it would seem).

If "involuntary action" is contradictory, it follows that "voluntary action" must be redundant. All action is voluntary. Indeed it is. This has been picked up by at least two astute legal commentators, Meir Dan Cohen and Glanville Williams.[46] Neither one has any apparent conversance with Davidson's work, or with action theory generally, yet their intuitions are right on the mark. Neither, however, has provided a conceptual foundation for the redundancy in "voluntary action" which both allege. Now we have it. A voluntary act (following 2.01(2) (d) must be the product of the conscious effort or determination of the actor. The same act is intentional (following 2.02(2) (a) (i)) in that the act has some conscious object. A movement that is voluntary in virtue of being the product of the conscious effort or determination of the actor, that is, of being intentional under some description, is by definition an act. Clearly, these two definitions (in 2.01(2) (d) and 2.02(a) (i) respectively), understood this way, are as close to identical as ordinary language allows.

Let us summarize our progress so far. With Davidson's help, we have a meaningful definition of "an act" or "an action." It is something done by a person (a doing) which is intentional under some description. Given the Code's definition of intention, we can translate that as: something done with some conscious purpose under some description.[47] What does this solve? First, we can understand what Austin meant when he held that all action was intentional. In our language, all action is, indeed, intentional under some description. Soon we shall see how this can handle both negligence and strict liability, Salmond to the contrary. We can already see how to unpack William's metaphor, that part of the mental element is "spliced" onto the "physical element," that is, the physical movement involved in the act. The mental element he refers to is precisely that it must be intentional under some description.

Our new definition clearly separates involuntary movements from acts, for they occur with no intention of any sort, no purpose of any kind. It is precisely intention or purpose which makes action the sort of bodily movement especially liable to the attribution of legal responsibility or legal culpability. But to see this, we must first consider mens rea and statutory descriptions of criminal action.

The Act Requirement, Mens Rea and the Statutory Definition of a Crime

Criminal statutes do not prohibit acts, for acts can fall under many descriptions. They prohibit acts under specific descriptions. This is reflected in 2.02 (2) (a) (i) of the Code when it says that a person must act" ... purposely with respect to a material element of an offense...."For example, when C murders his wife for the insurance, he also solves his financial troubles. The law does not prohibit C from solving his financial troubles. Its interest (its sole interest in this statute) is in prohibiting actions which can be appropriately described as "purposively causing the death of another human being," that is, when his action is purposive with respect to the appropropriate element of the crime. A crime is intentional (an "intentional crime" or "a crime of intention") if and only if it is intentional under the description contained in a prohibiting criminal statute. But the act requirement is satisfied if and only if the action is intentional under any description, a much weaker test. Thus, our boxer's blow satisfies the act requirement (it was, as we have seen, intentional under several descriptions) but fails the mens rea requirement for the intentional crime of murder because it was not intentional under the specific description of "purposively causing the death of another human being."[48]

The Nature of Action and the Attribution of Liability

This analysis has great power for it nicely separates so-called involuntary acts from so-called voluntary acts (hereinafter, just "action" or "acts"). Moreover, it tells us why acts are such highly suitable candidates for the attribution of liability. We can see this by merely scratching the surface of one influential action-theoretic definition of intention. Most action theorists believe that at some (perhaps elementary) level intentions consist, at least in part, of desires and beliefs.[49] That is, I want the room cooled (a desire) and I believe that opening the window will cool it. Thus, my action of opening the window is intentional under several descriptions, for example, "opening the window" and "cooling the room" but not "letting in a fly," which, let us say, I did inadvertently. Still, letting in the fly is an act of mine just because that act was intentional under some other description, namely cooling the room.

Now, the presence of the desire for the end or purpose of my action is, in some sense, an expression of my will.[50] However, for our purposes, we can drop the deeply problematic reference to "the will." We can talk instead of our own knowledge of what we do, of what the natural and probable consequences of our act will be and, especially, of our control over our act and its ends. (Following our procedure of paradigmatic analysis, we shall ignore compulsive or unconsciously driven behavior.) My intentional action is controllable in the sense that I control what I do and direct it toward ends I choose.

Does "control" introduce a new notion, extraneous to the concepts we have been working with in the Code? I think not. Putting Code 2.01 (2) (d) together with 2.02 (2) (a)(i) we can get intentional action (in the paradigm case) as a product of the conscious effort and determination of the actor toward some conscious object (either the act itself or its results).

The notion of "a product" suggests the successful completion of some action (effort). That expresses control. Moreover, the direction, the "towardness" of the effort or determination, is a further expression of control. Obtaining one's conscious object through conscious effort and determination can be accomplished only through one's control of one's bodily movements, which just is voluntary action.

In addition to my controlling my action (as set out above) I must know what it is I do. My beliefs about what I want and how to get it require, literally, that I know what I am doing under some description.[51] Indeed, my access to knowing what I am doing is privileged. I know in a direct and immediate way not shared by others who must observe what I am doing.[52]

My act has precisely these two key features. First is my actual knowledge of what I am doing and, more broadly, its special "knowability," that is, its unique availability by me to be known. Second is the controllability of my action. These two make it fair, reasonable and morally appropriate that we be held liable for our actions.[53] Since knowability and controllability are necessary constituents of our intentions, it is its very intentional character which makes action so appropriate an object for the attribution of criminal liability. But, of course, to see this special appropriateness, we must see, as our analysis allows us to, that, indeed, all action is intentional. Thus, in virtue of that feature, it is the nature of action that it be uniquely knowable by the actor and its occurrence uniquely controllable by him. This analysis of action and intention gains credence as an explication of the theory underlying the criminal law from the Code itself. That is found in Code [Section]4.01 (1) dealing with criminal insanity. These two characteristics, knowledge of the nature of one's action, including but not limited to its moral nature, and control over it, are the two ingredients the lack of which defines insanity (mental disease or defect) in Code 4.01 (1). In the literature on the insanity defense, the knowledge condition is typically described as the cognitive requirement, and the control requirement is described as the volitional requirement.[54]

Compare intentional action so characterized with a class of other events that occur in the lives of humans for which they ought not, either as a matter of morality or even of rationality, be held responsible, and for which no modern Western legal system does hold them responsible. One does not act or even do anything when one is washed overboard in a storm. It is, said Holmes, "the difference between an act and no act," something that happened to the person.[55] LaFave and Scott give an additional and very helpful example.[56] Where A forces B's body into C, causing injury to C, there is no liability to B. B performed no act. His body was a thing, a projectile used by A. All we can say of B is that something happened to him, or something was done to him.

Likewise, as we have seen, we are not accountable for things we do which are not intentional under any description. Davidson provides a wonderful example of this:

If the officer presses a button thinking it will ring a bell that summons a steward to bring him a cup of tea, but in fact it fires a torpedo that sinks the Bismarck, then the officer sank the Bismarck; but if he fell against the button because a wave upset his balance, then, though the consequences are the same, we will not count him as the agent.[57]

Clearly, the officer acted in the first instance, and we would treat him as liable under a negligence standard (suppose he is a German officer). We would properly say he "made a mistake." But, in the second case, he was, as Davidson says, not an agent; he did not act, and we would be much less inclined to ascribe negligent liability to him. He did not make a mistake; rather, something happened to him. (Although his falling was something he did, it was not his act.)

In these cases, either knowledge of what one was doing (under any description) or control over it or both were missing. That is precisely what is missing when we have happenings or doings or motions not intentional under any description. Even more important, that is precisely what makes cases of action what they are, namely, action. And it is knowledge and controllability that make action attributable to us and make us accountable agents of that action.

Omissions and Negligence

Though a sustained analysis of these notions is a topic for another time, we can have a very brief look at how this approach would treat omissions and negligence. What we shall see is that, while omissions and negligence are not crimes of intentional action, they are nonetheless cases of action sufficient for the attribution of criminal liability.

How do omissions differ from those cases of what Holmes in The Eliza Lines[58] calls "no act"? After all, when one omits to perform a required act, one fails to act. Yet, we feel there is no failure of the act requirement when we prosecute someone for intentionally not paying their Federal income tax or not registering with the Selective Service Commission. How is this so? Recall it was an inability to deal with omissions by the old Austin-Holmes analysis of an act which was the basis of criticism of it by Hart.[59]

Our analysis provides us with a very nice way of handling intentional omissions. Culpable, intentional omissions occur in "a course of action." By doing A, B and C, you may well intentionally avoid doing D, which you might have been doing instead. The constituent actions are each intentional under some description and the entire "course of action" is intentional under a series of such descriptions. This means that we both know what we do and that we control what we do when engaged in such a course of action. Moreover, we are typically presumed to know what we are required to do, that is, to know the law.[60] We intentionally do not do what we are required to do by intentionally directing our actions so that we avoid doing it. We can imagine asking a friend on April 15th, "Did you pay your income tax today?" and receiving the answer, "No, I am protesting such and such and don't intend to pay it this year, so I stayed home all day and read a book." She intentionally did not pay her income tax by intentionally staying home and reading a book to the conscious exclusion of paying her taxes. Her intentional action which intentionally excluded performing that act. She knew what she was doing (staying home reading a book) and, as regards paying her income tax, she knew what she was not doing. It was in her control to pay or not pay her income tax. These cases, then, are easily distinguished from such behavior as muscular spasms, fits, and doings while unconscious, which are intentional under no description and therefore not controllable by us or often even known to us (in cases where we are unconscious).

Negligence can be viewed as an unintentional omission to carry out one's actions in a certain way. It is not the failure to perform an act, but a failure to perform some act or series of acts in accord with a specific duty assigned to all adults. That duty is to carry out one's actions with due care or as a reasonably prudent person would. It is an unintentional omission to act in this way, but it makes sense, and we think it morally appropriate, to charge that we should have so conducted ourselves. After all, our negligent course of action was intentional under some description, that is, it was action. Indeed, negligence requires a course of intentional action, for it requires consciousness, knowledge of what one is doing (under some description), and control over one's behavior (with some "conscious object" of one's action). Recall our earlier example. If I strike a child with my auto, my act, under that description, was unintentional. But it was an act precisely because it was intentional under the descriptions "driving my car," and "going to the store," and so on. It was not intentional under the description "driving negligently" or "killing a child." However, since it was intentional under the description driving my car, I both knew what I was doing under the relevant description and controlled it. Clearly then, I could have followed the course of action without being negligent and, thus, could have avoided its tragic consequences. That is, my course of action, intentional under some description, was sufficiently known to me and controllable by me such that I could have conducted it in this required (reasonable and prudent) way. And, it is perfectly rational (and morally appropriate as well) to claim that I should have conducted it in this way.

Strict Liability

One of the most controversial bases of accountability, especially within the criminal law, is strict liability. It is, however, quite consonant with the theory of action and liability attribution put forward here. Thus, it is consonant with the act requirement of the criminal law. When one engages in ultra-hazardous activity, for example, one is engaged in a course of action intentional under some (a variety of) description(s). When a demolitions expert blows up a building in downtown Chicago as part of an urban renewal project, she engages in intentional action. She intends to blow up the building. She intends to earn a fee. Indeed, we can assume that she intends to avoid causing injury to people. Now, the demolitions expert can be held strictly liable for the consequences of her actions precisely because she knows what she is doing in blowing up the building and can be presumed to know (she is charged with knowing) the possible consequences of what she does. Moreover, she controls what she does and she does not have to do it. Perhaps most important, she can be presumed to know that one is strictly liable for the harmful consequences of such a course of action under the description of "conducting demolitions in an urban area." That is, she can be presumed to know the law; she has notice. Now, compare this with being strictly liable for remaining at your lookout post on a ship and being charged with desertion for being washed overboard. Being washed overboard is not a course of action. One cannot control what happens to one, and one might not (if one is unconscious, say) even know it is happening. We certainly cannot be said to know the nature of one's action here since one is not acting. Again, we have the clear distinction between an act and no act. It is intelligible and coherent (and, perhaps even rational and moral) to hold one strictly liable for the consequences of a course of action, intentional under some description, which is undertaken with notice, of its being action to which strict liability attaches. It is neither intelligible nor coherent (much less moral) to hold one responsible for a natural event that happens to one.

Conclusion

This essay only scratches the surface. We have oversimplified on all sides. We leave unanalyzed a vast array of problem cases and issues. What of knowing but not purposive instances of intention? What of possession? What of crimes of status? We have limited ourselves quite artificially to the Model Penal Code while not addressing issues raised by other codes, much case law, or other legal systems. Moreover, we have used only elementary action theory, leaving aside even more powerful machinery (for example, Davidson's notion of intention) as well as many criticisms of even the elementary material we have used (for example, criticisms of the Anscombe/Davidson theory of action or criticisms of the desire-belief model of intentional action). Still, we have seen enough and cleared enough underbrush to know that contemporary philosophical action theory has much to contribute to understanding some of the deepest issues at the philosophical foundations of law.

We have a good working definition of action as something done that is intentional under some description. This definition works to separate voluntary conduct (action) from involuntary movements or behavior while preserving the rationale for attributing liability to omissions and negligence, and even for attributing strict liability for the consequences of certain courses of action. We can now understand the philosophic force behind the act requirement and see exactly how it is related to the mental element of a crime. Perhaps we have also lifted the "shroud of mystery" surrounding the nature of voluntary conduct and intentional action, if only slightly.

NOTES

[1] H. GROSS, A THEORY OF CRIMINAL JUSTICE 50 (1979).

[2] Id. at 133.

[3] G. WILLIAMS, TEXTBOOK OF CRIMINAL LAW 14 (2d ed. 1983).

[4] O'Connor, The Voluntary Act, 15 MED., SCI. & THE LAW 31 (1975).

[5] D. HUSAK, PHILOSOPHY OF CRIMINAL LAW 78 (1987).

[6] J. AUSTIN, LECTURES IN JURISPRUDENCE 427 (1867).

[7] O.W. HOLMES, JR., THE COMMON LAW 54 (Little, Brown, 1923).

[8] J.S. MILL, A SYSTEM OF LOGIC 35 (Longmans, 1965).

[9] H. L.A. HART, PUNISHMENT AND RESPONSIBILITY 95-104 (1968). See also O'Connor, supra note 4.

[10] H.L.A. HART, id. at 100-01.

[11] Id at 100.

[12] Section 1.13(2). It must be pointed out, however, that the MODEL PENAL CODE (hereinafter CODE) goes on to define "conduct" in 1.13(5) so as to include omissions. So, it is careful to include omissions. Nonetheless, it provides no theoretical foundation for this inclusion, given its definition of an act.

[13] Dan Cohen, Actus Reus, 1 ENCYCLOPEDIA OF CRIME AND JUSTICE 15.

[14] Section 2.01(2) (a) and (b).

[15] For an analysis of impossible attempts which is consonant with its being a problem in the definition of an act (though the nowhere suggests the theory herein propounded), see G. FLETCHER, RETHINKING THE CRIMINAL LAW 146-66 (1978).

[16] Robinson v. California, 370 U.S. 660 (1962).

[17] Powell vs. Texas, 392 U.S. 514 (1968).

[18] L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS Section 621 (1953).

[19] E. ANSCOMBE, INTENTION (2d ed 1963).

[20] D. DAVIDSON, ESSAYS ON ACTIONS AND EVENTS (1982).

[21] As the editors of CRIMINAL JUSTICE ETHICS have pointed out, this proviso need not be claimed by a system of criminal law. Things other than acts might provide an appropriate ground of responsibility. Still, the act requirement, if we are to retain it as part of the criminal law (and in this exercise we shall) does pick out acts as somehow specially well fitted (though not necessarily exclusively so) to the logic of attributions of responsibility.

[22] J. AUSTIN, supra note 6, at 432. The reader will notice that this doctrine is quite consistent with Austin's definition of an act (see supra. note 6). A's willed muscular contraction surely must be an intentional one.

[23] J. SALMOND, JURISPRUDENCE 400 (G. Williams 11th ed. 1957). The reader will note that Salmond's criticism of Austin formulates the problem with the act requirement set out above, viz, how is an unintentional but culpable act (e.g., a negligent one) different from an involuntary and non-culpable one? See also Husak's helpful discussion of this controversy. Id. at Chapter 4, especially at 79.

[24] G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART 12 (1961).

[25] L. WITTGENSTEIN, supra note 18.

[26] Of course, we do not want to fall into the very trap Wittgenstein was attempting to characterize in this quotation. It is not some mental thing, viz, a volition, which differentiates the two. Even if we allow our ontology to be a bit richer than Wittgenstein's, including perhaps volitions, his point is well taken that the mere hypothesizing the existence of volitions solves nothing. The difference between my arm going up and my raising it is not merely the existence of something. Still, characterizing that difference is our objective.

[27] It may be too narrow as well. Are all acts "bodily movements" as opposed to mental entities? Can we perform mental acts? As I write this line I think of Vice President Quayle; last night I promised myself I would go on a diet and decided I would have only yogurt for breakfast. These instances seem to be acts. They behave grammatically and logically like acts. Many philosophers believe them to be just that. See, e.g., P. GEACH, MENTAL A CTS 1 - 17 & 75 - 79 (1957). A more recent and critical discussion and brief survey occurs in M. BRAND, INTENDING AND ACTING 12 - 15 (1984).

[28] See generally MODEL PENAL CODE AND COMMENTARIES, PART I, Section 1.01-2.13, for the consistent, and I believe correct, presupposition that the voluntary act requirement includes "acts" in the ordinary and common sense meaning of that term.

[29] I stack the deck against crimes of status here only to make the point. As an editor of CRIMINAL JUSTICE ETHICS points out, there are other kinds of status which are not so clearly out of bounds for the attribution of moral responsibility or even criminal liability and prosecution. Being a member of a terrorist organization pledged to assassinate the president is a good example. Although being, as I am, a staunch partisan of the act requirement, I would prefer to hold off prosecution of such a terrorist until she had actually entered a conspiracy. And I would require that an overt act in furtherance of the conspiracy be an element in the crime. But the point is well taken. Not all status is so unproblematically illegitimate a target of criminalization as skin color, gender, or age.

[30] One such case, Hill and Baxter 1 All E.R. 193 (Q.B. 1958), is discussed at some length in H.L.A. HART, supra note 9, at 92-95. See also Judge Desmond's comment in dissent in People v. Decina, 2 N.Y. 2nd 133, 139 N.E. 2nd 799 at 808 (1956), where he says, "One cannot while unconscious 'operate' a car in a culpably negligent manner or in any other 'manner.'"

[31] Fain vs. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213 (1879).

[32] MODEL PENAL CODE AND COMMENTARIES, supra note 28, at 222 n. 29, points out that many statutes do not explicitly include habitual acts. An illustration of the confusion among philosophers is expressed by L. DAVIS, THEORY OF ACTION 15-16 & 113-14 (1979).

[33] For a typical discussion of this point, see G. FLETCHER, supra note 15, at 257-59.

[34] This is borne out by the CODE in Section 1.13 (12), where "intentionally" is defined as "purposively."

[35] Here we follow CODE 210.2 (1) (a). The reader will note that the killing might be an end in itself or a means to another end and might have been committed for a variety of reasons or motives. None of this matters if the intention was to kill.

[36] G. WILLIAMS, supra note 3, at 35 n.5.

[37] Eaton vs. Cobb, 1 All E.R. 1016 (J.P. 1950).

[38] Actually, it requires the purposive or knowing causation of the death of another.

[39] E. ANSCOMBE, supra note 19, taken up by D. DAVIDSON supra note 20, at 3-19 & 43-61.

[40] D. DAVIDSON, id. at 53. Many action theorists take issue with this "unified" theory of what an action is. See, e.g., A. GOLDMAN, THE NATURE OF HUMAN ACTION Chs. 1 & 2 (1970). However, the author believes Davidson's to be the correct view. Various versions of it are, at least, widely shared. Moreover, as we shall see, it is so effective in explicating the theoretical foundations of the act requirement in the law and its relation to intention that one is tempted to say, even if the unified (Anscombe-Davidson) theory were to prove incorrect in some deeper sense, it remains the theory presupposed by the law. I should add, however, that my colleague, Michael Robins, who is far more conversant with the intricacies of Goldman's theory than I am, has claimed in conversation that Goldman's view could also explicate the criminal law adequately.

It should also be noted that, at some deep level, Anscombe's and Davidson's notions may not be strictly equivalent. See Julia Annas, Davidson and Anscombe on "the same action," 85 MIND, 251-57 (1976). Davidson, however, believes that they are. See D.DAVIDSON, supra note 20, at 59, 19.

[41] L. DAVIS, supra note 32, at 4.

[42] Id at 50.

[43] Id at 48.

[44] Actually, Davidson does provide us with a powerful (and powerfully contested) definition of intention in a later work, reprinted in supra note 20, Essay 5, 83-102. However, to attempt to integrate it into our discussion would take us too far afield.

[45] There is the logical possibility that a doing could be done knowingly under some description and, thus, be intentional in the sense of 2.02(2) (b) while being done without purpose under any description. I find this mysterious. If such doings exist, they are probably not actions. A possible candidate comes from a variant of one offered by H.L.A. HART, supra note 9, at 109. Imagine a man attacked by a swarm of bees while sitting. His legs and arms are jerking involuntarily, and not purposively under any description, but he knows they are jerking. This is clearly a doing; the man is jerking his limbs. But is it his action? I think not, though I have only intuitions to offer. Hart does not address the issue of intentionally here and concludes only that the movement of the limbs is not voluntary.

[46] Dan Cohen, supra note 13, at 16, and G. WILLIAMS, supra note 3, at 12 n. 1.

[47] Of course, the act could have been performed knowingly under any given description rather than with purposive intention as set out in CODE 2.02(2) (b). See supra note 45. However, following that note, in order to be an act, it would have to have been done with purposive intention under some other description, else it would fail to be an action altogether.

[48] This distinction between an act, intentional under some or another description, and an act, intentional under the proscribing description in the criminal code, must not be confused with specific and general intent. Burglary, for example, requires the general intent to break and enter and the specific intent (really a further intention) to commit a felony therein. What we describe as an act intentional under a proscribing description in the criminal code is an explication of general intent, i.e., of CODE 2.02 (2) (a), part of the "General Requirement of Culpability" within the CODE.

[49] This view is often called the "desire-belief model." It is closely related to Davidson's own view, but is most clearly described in Mackie, The Grounds of Responsibility, in LAW, MORALITY AND SOCIETY 175-88 (P.Hacker & J. Raz, eds. 1977). See also M. BRATMAN, INTENTION, PLANS, AND PRACTICAL REASON 1-18 (1987) for a critical review of the theory. We would note that the regnant contemporary view is that an intention is not merely a desire-belief set. It requires something more, though that something more is not central to our concerns. Moreover, there is argument over the role that the desire-belief set plays. Mackie represents a long tradition which sees it as the cause of action. Hart, on the other hand, sees it as an accompanying mental state. See H.L.A. HART, supra note 9, at 90-112. For criticisms of the view that a desire-belief set fully exhaust the notion of intention, see M.BRATMAN, id. at 18-20 & passim, and Davidson's later theory of intention, supra note 20, Essay 5, 83-102. Nonetheless, virtually all action theorists believe that something like a desire and a belief are both constituents of any intention.

[50] I do not intend, here, to broach the issue of the freedom of the will. Most action theorists believe that much worthwhile can be said about the will and willing things without dealing with the metaphysical issue of freedom vs. causal determinism. The position that choice, responsibility, and the will are ultimately consistent with causal determinism is called compatibilism or sometimes soft determinism. The view claims that issues of the freedom of the will are really about control of one's action in just the way we have been discussing it, not whether that control itself is causally determined by brain chemistry or whatever else. That is the position I take here. As particularly authoritative statements of the position, see Frankfurt, Freedom of the Will and the Concept of the Person, in FREE WILL 81-95 (G. Watson ed. 1982);D.DENNETT, ELBOW ROOM: VARIETIES OF FREE WILL WORTH WANTING (1981); W. LYCAN, CONSCIOUSNESS Ch. 9 (1987).

[51] See E. ANSCOMBE, supra note 19, at 11-12. One does not know everything about one's action and often is not aware of it under every description that applies to it. I may, for example, know I am paddling a canoe (one description). I may know I am paddling north (another description) and yet not know I am paddling toward a falls (a third description), i.e., I fail to recognize my action under that description. But, if it is an action, it is intentional under some description (in our example, under the first two descriptions, at least). And, if it is intentional under any description, I must "know what I am doing" when I so act. Thus, in Davidson's words"...what the agent does is known to him under some description," supra note 20, at 50.

[52] See E.ANSCOMBE, supra note 19, at 13-15 & 49-63.

[53] Some commentators emphasize the controllability character of action to the complete exclusion of its knowability. See, e.g., D. HUSAK, supra note 5, at 96-111 & MODEL PENAL CODE AND COMMENTARIES, supra note 28, at 215. While control may be central, knowability is a necessary condition of control and an independent element upon which liability can fail. See the CODE'S definition of insanity infra note 54.

[54] See MODEL PENAL CODE AND COMMENTARIES, Part I, [unkeyable]3.01 to [unkeyable]5.07. Another standard treatment setting out the various "tests" or "rules" is W. LAFAVE & A. SCOTT, CRIMINAL LAW 274-95 (1972).

Obviously, there is a vast literature on the insanity defense, a full bibliography of which would constitute a project in itself. However, the treatments combining the legal and the philosophical issues are H.FINGARETTE, THE MEANING OF CRIMINAL INSANITY (1972) and M. MOORE, LAW AND PSYCHIATRY, PART II (1984).

[55] O.W. Holmes, The Eliza Lines, 199 U.S. 119, 130 (1905).

[56] Id. at 180-81.

[57] Id. at 54.

[58] Holmes, supra note 55.

[59] See H.L.A.HART, supra notes 9, 10, & 11.

[60] But see Lambert vs. California, 355 U.S. 225 (1957).
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Title Annotation:definition of 'act' for criminal liability
Author:Child, James W.
Publication:Criminal Justice Ethics
Date:Jan 1, 1992
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