Professor Russell L. Christopher
Abstract:
What is the relationship between the permissibility/impermissibility of the part to the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the actio libera and deterrent threat doctrines. The latter doctrine maintains that an otherwise impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The actio libera doctrine addresses the morality and legality of an actor who contrives or culpably causes the conditions of her own defense. This paper considers three principal approaches to the actio libera doctrine. First, hold the actor liable despite granting the defense—the permissibility of the constituent part relating to the defense has no effect on the impermissibility of the actor’s whole course of conduct. Second, hold the actor liable by barring the defense—the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. Third, the actio libera and deterrent threat doctrines are sufficiently related such that the deterrent threat doctrine supports the second approach to the actio libera doctrine—in both, the permissible/impermissible status of the whole governs the status of the part. This paper challenges each of these principal approaches to the actio libera doctrine.