NCJ Number
56633
Date Published
1978
Length
164 pages
Annotation
THE TRADITIONAL DOCTRINE OF THE VOLUNTARY ACT, AS SET FORTH BY J. AUSTIN, IS CRITIQUED. THE EXISTING CONFUSION SURROUNDING TESTS FOR VOLUNTARINESS IS DOCUMENTED AND A RESTRUCTURING OF THE LAW IS SUGGESTED.
Abstract
THE CRIMINAL LAW DOCTRINE OF 'VOLUNTARINESS' WAS FIRST SPELLED OUT BY THE ENGLISH JURIST JOHN AUSTIN IN THE EARLY 19TH CENTURY. AUSTIN WENT INTO GREAT DETAIL TO DISTINGUISH A VOLUNTARY MOVEMENT FROM AN INVOLUNTARY MOVEMENT. UNDER HIS DOCTRINE THE KILLING OF A PERSON IS THE RESULT OF A TIGHTENING OF A FINGER ON THE TRIGGER OF A GUN. THE QUESTION IS THEN, NOT WAS THE PERSON KILLED, BUT WAS THE FINGER-TIGHTENING VOLUNTARY OR INVOLUNTARY. HARDLY HAD THIS DOCTRINE BEEN SPELLED OUT IN A SERIES OF LECTURES THAN CRITICS AROSE TO ATTACK IT. DESPITE THESE ATTACKS, HOWEVER, THE DOCTRINE OF VOLUNTARINESS BECAME AN IMPORTANT PART OF THE CRIMINAL LAW AND THE ISSUE OF 'VOLUNTARY' OR 'INVOLUNTARY MANSLAUGHTER' IS DAILY DECIDED IN TRIAL COURTS. THE ANGLO-AMERICAN LEGAL SYSTEM HAS BEEN CONFUSED BY THIS DOCTRINE OF VOLUNTARINESS AND THE RESULT HAS BEEN SOME ANOMALIES, SUCH AS DIFFERENTIAL TREATMENT OF SOME PERSONS WHOSE CONDUCT SEEMS SIMILAR IN CERTAIN CRUCIAL RESPECTS. MANY COMMENTATORS FEEL THIS CONFUSION IS DUE TO THE CRIMINAL LAW'S ADHERENCE TO AUSTIN'S FIRM BELIEF THAT PERSONS ACT IN EITHER A FULLY VOLUNTARY OR FULLY INVOLUNTARY MANNER. A FLEXIBLE SYSTEM WOULD TAKE INTO ACCOUNT DEGREES OF DELIBERATE CHOICE. SUCH A SYSTEM AND ITS IMPLEMENTATION ARE OUTLINED. FOOTNOTES AND REFERENCES ARE APPENDED. (GLR)