CENTER FOR ETHICS AND THE RULE OF LAW​

Actio Libera in CAUSA

December 8 -
 9, 2011

Co-sponsored By:

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The Conference

Actio Libera in Causa, is the criminal law doctrine involving defendants who “create the conditions of their own defense.”  The occasion for this conference is the planned publication of a special issue of the journal of Criminal Law and Philosophy on this topic.

Originally, the problem of the Actio Libera arose in connection with criminal law defenses having to do with impaired responsibility. In particular, the lack of a voluntary act defense and the (possible) defense of intoxication brought new scrutiny to the issue. The primary question is what position the law should take with regard to agents who would normally have a defense – such as involuntariness – when the defendants themselves have either manufactured the conditions that produced the lack of voluntariness or failed to take the precautions necessary to prevent those conditions.  Arguably, the epileptic who has a seizure while driving because he failed to take his medication and thereby causes the death of a pedestrian should not benefit from the lack of a voluntary act defense.  In such cases, although the excusing condition would normally reduce the culpability of the defendant, one is inclined to deny him the benefit of the defense if the defendant is at fault in creating the excusing condition. Such reasoning is likely the best explanation as to why voluntary intoxication does not excuse and involuntary intoxication does. If a defendant is intoxicated during the commission of a crime, it may reduce or wholly negate his culpability, but this does not seem as justified when the defendant chose to become intoxicated. In such instances, the conditions that reduce the voluntariness of the act are voluntarily brought about by the agent, and the rationale for reducing the defendant’s ultimate liability do not appear to obtain.

In recent writings, this same logic has been extended to defenses that have nothing to do with impaired responsibility. Consider the same situation as applied to self-defense or necessity. A defendant may have purposely arranged for an intended act of violence to be masked as a case of self-defense. He would accordingly have an excuse or justification for harming another, but he would not have had that excuse had he not arranged matters in this way. Likewise, an arsonist may be able to claim that burning down a house was necessary to create a fire break to fight a forest fire. Yet, this excuse seems insufficient when the arsonist started the forest fire so that he could justifiably burn down the house. In these cases, the individuals are fully responsible for their actions, but they have brought about the conditions of their own defense, and this leads one to the conclusion that they ought to be deprived of the defense as a result.

While the problems surrounding the Actio Libera in Causa have received extended attention in German jurisprudence, the doctrine remains relatively unexplored in Anglo-American legal thought. An important article by Paul Robinson, entitled “Causing the Conditions of One’s Own Defense,” (Virginia Law Review, Vol. 71 No. 1, 1985brought the issue to the attention of American and British criminal law scholars, and a handful of articles and book chapters have been written on the topic since. Yet, the problem of how the criminal law should treat defendants who create the conditions of their own defense remains as vexing as ever. Of particular interest is the connection between defendants who manufacture the conditions of their own defense and what we might think of as the converse problem—agents who perform what would normally be a blameworthy act, who may nevertheless benefit from an excuse because their act is part of an overall course of conduct whose aim is defensible. Examples of the latter abound in the rational choice theory literature: the person who follows through on a deterrent threat because of an overall course of conduct of issuing and making good on threats, where the action could only be morally justified by reference to the larger plan of which it is a part. Or the person who drinks the toxin in Gregory Kavka’s famous “Toxin Puzzle,” the rationality of which can only be defended by reference to the course of conduct of which it is a part. Thus the logic Actio Libera in Causa and a certain type of case involving plans and their relation to the subpart of those plans may raise similar problems about the nature of moral reasoning.

Schedule

Rare Book Room, Tanenbaum 253

Download Full Schedule

Thursday, December 8


2:30 – 3:00 pm Arrivals


3:00 – 4:30 pm
Session 1

Intoxicants and Culpability,
Doug Husak

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Actio Libera, Intoxication and the Voluntary Act Requirement,
Susan Dimock

Lorem ipsum dolor sit amet, consectetur adipiscing elit. Maecenas congue hendrerit congue. Sed ac arcu commodo, vestibulum ligula quis, ullamcorper odio. Aenean ac eros vitae mauris volutpat auctor et in nisl. Praesent pulvinar vehicula risus, a mattis nisl. Vestibulum dictum augue ante, malesuada semper lectus dignissim at. Duis iaculis rhoncus.


4:30 – 5:00 pm Break


5:00 – 6:30 pm
Session 2

The Persistence of Prior Fault: The Defense of Intoxication in Canada,
Tim Quigley

Lorem ipsum dolor sit amet, consectetur adipiscing elit. Maecenas congue hendrerit congue. Sed ac arcu commodo, vestibulum ligula quis, ullamcorper odio. Aenean ac eros vitae mauris volutpat auctor et in nisl. Praesent pulvinar vehicula risus, a mattis nisl. Vestibulum dictum augue ante, malesuada semper lectus dignissim at. Duis iaculis rhoncus.

Intoxication, Recklessness and Negligence,
Gideon Yaffe

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6:45 pm Cocktails at University Club – Living Room Inn at Penn


7:30 pm Penne Restaurant Inn at Penn


Friday, December 9


8:30 – 9:00 am Continental Breakfast


8:50 – 9:05 am Dean Fitts Welcomes Panel


9:05 – 10:30 am
Session 3

Culpable Ignorance,
Holly Smith

Causing the Conditions of One’s Defense: A Theoretical Non-Problem,
Larry Alexander


10:30 – 11:00 am Break


11:00 – 12:30 pm
Session 4

What Should We Say about Contrived ‘Self-defense’ Defenses?
Daniel Farrell

Permissible Parts in Impermissible Wholes & Impermissible Parts in Permissible Wholes: The Contrived Defense and Deterrent Threat Doctrines
Russell Christopher


12:30 – 1:30 pm Lunch

Silverman Hall


1:30 – 3:15 pm Break


3:30 pm

Transportation to Chestnut Hill
(Carpooling and Cabs from the Inn at Penn)


4:30 – 6:00 pm
Session 5

Session 5 (Held at the home of Claire Finkelstein and Leo Katz)
Entrapment Through the Lens of Actio Libera in Causa
Leo Katz

Provocateurs
Kimberly Ferzan


6:00 pmCocktails and Dinner


Participants

Larry Alexander

Warren Distinguished Professor of Law
The University of San Diego School of Law

Mitchell N. Berman

Richard Dale Endowed Chair in Law
The University of Texas- Austin School of Law

Russell Christopher

Professor of Law
The University of Tulsa School of Law

Susan Dimock

Professor, Department of Philosophy
York University

Daniel M. Farrell

Professor, Department of Philosophy
The Ohio State University

Kim Ferzan

Professor of Law
The Rutgers Law School

Claire Finkelstein

Algernon Biddle Professor of Law and Professor of Philosophy
The University of Pensylvania Law School

Douglas Husak

Professor of Philosophy
Rutgers University

Leo Katz

Frank Carano Professor of Law
The University of Pensylvania Law School

Youngjae Lee

Associate Professor of Law Fordham University Law School
The University of Pensylvania Law School

Chris Melenovsky

ILP Academic Administrator, Philosophy PhD Candidate
University of Pennsylvania

Christopher Morris

Professor of Philosophy
University of Maryland

Tim Quigley

Professor of Law
The University of Saskatchewan College of Law

Paul Robinson

Colin S. Diver Professor of Law
The University of Pensylvania Law School

Holly Smith

Professor of Philosophy
Rutgers University

Gideon Yaffe

Professor of Philosophy and Law
University of Southern California

Contact us

For any administrative needs or to register for the conference please contact: Margaret Keegan at mkeegan@law.upenn.edu or 215-573-7297

For any academic questions please contact Chris Melenovsky at cmeleno@sas.upenn.edu or 860-830-7311.

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Actio Libera in CAUSA