Agency

Using as a frame the famous case of Daniel M’Naghten, who suffered from delusions of persecution, this chapter offers a theory of insanity as lost agency, according to which a person is insane if he acts but does not experience himself as the author of his actions. Insofar as the application of the actus reus and mens rea requirements presuppose that the defendant acted with a sense of agency, and insofar as actus reus and mens rea are limits on a democratic state’s authority to ascribe guilt, acting without a sense of agency constitutes another limit on the state’s authority. If a defendant acted without a sense of agency, he is beyond the authority of a democratic state to ascribe guilt to any criminal choice he makes while lacking a sense of agency. Before reaching this conclusion, the chapter explores and criticizes the law’s prevailing account of insanity, which grounds insanity in an incapacity, as well as a proposed alternative account, which grounds insanity in irrationality. After then elaborating on the idea of insanity as lost agency, it compares insanity to other defects of consciousness (hypnosis, sleepwalking, and multiple personality disorder).