Structural Flaws of the `Willed Bodily Movement' Theory of Action

Buffalo Criminal Law Review, Vol. 2, No. 1 (1997).

Posted: 1 Oct 1997

See all articles by Ron Shapira

Ron Shapira

Bar-Ilan University - Faculty of Law

Abstract

This paper returns to consider one of the most debated issues in the philosophy of action and criminal law theory, namely, the view that actions are willed bodily motions (hereinafter: "the WBM approach"). The ramifications of this approach are claimed to entail crucial practical conclusions regarding criminal liability for omissions, the definition of attempts, the location of a crime in time and space, double jeopardy, statutes of limitation, abortions, euthanasia and other issues. The paper will not deal with all the well-known contentions in this ancient and somewhat hackneyed debate, but will instead propose an assessment of the structural and meta-theoretical qualities of the WBM scheme. The WBM approach, or at least many of its modern presentations, will be revealed as wavering systematically between monism and dualism, between determinism and a strong belief in free will, and between the causal characterization of the volition-action relation and a conceptual characterization of this relation. These obscurities, and the absurdities generated by them, are especially prominent when we consider one of the most dramatic practical conclusions emerging from the WBM approach -- the claim that omissions are merely the absence of willed bodily movements. Another claim following from the WBM approach -- the exclusion of mental acts such as deciding, calculating or calling up an image from the domain of discourse -- appears to hinge on the contingencies of modern legal systems rather than on the conceptual considerations guiding the rest of the WBM project. I claim that accepting this pragmatic exclusion as part of a professedly non-pragmatic theory of action fails in the attempt to establish the theory on metaphysical grounds and is inconsistent with the WBM treatment of omissions. I propose, however, an explanation for this strategy, which is an attempt to circumvent the problematic generated by the commitment of WBM to a mechanistic presentation of the human mind. Finally, I discuss a generalized explication of the misleading intuitions from which this approach has emerged. I believe that this explication is essential to justify the total rejection of WBM, given the intuitive appeal of this approach, as only by tracing the phenomenological sources of its underlying mistaken intuitions can one be open to the compelling positive arguments used to rebut it. The suggested explication is based on the powerful meta-theoretical formal tool of symmetry, and draws a structural analogy between the WBM approach and non-relativistic physical theories.

Suggested Citation

Shapira, Ron A., Structural Flaws of the `Willed Bodily Movement' Theory of Action. Buffalo Criminal Law Review, Vol. 2, No. 1 (1997)., Available at SSRN: https://ssrn.com/abstract=11387

Ron A. Shapira (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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