1 See Mandelbrot v. A.G., (1956) 10 P.D. 281; Mizan v. A.G., (1967) 11 P.D. 769; State of Israel v. Rohan, (1970) 68 P.M. 344.

2 See Barazani v. A.G., (1959) 13 P.D. 1409; Mehring v. A.G., (1961) 15(i) P.D. 632; Botal v. State of Israel, (1977) 31(ii) P.D. 141; Ladoni v. State of Israel, (1982) 36(ii) P.D. 19; Siman Tov v. State of Israel, (1982) 36(ii) P.D. 263; CrA. 292/81 Amishuv Lefer v. State of Israel, (unpublished); Eisenberg v. State of Israel, (1983) 37(i) P.D. 819; Muhammad Ben Lutfi v. State of Israel, (1986) 39(iv) P.D. 253; Yosef Sasson v. State of Israel, (1990) 44(iv) P.D. 824. Also see Feller, S. Z., Elements of Criminal Law, vol. I, (Jerusalem, 1984, in Hebrew) 659–686.Google Scholar

3 See Atiyah v. State of Israel, (1976) Daf LaPraklit (Criminal Law) 161.

4 See, e.g., Aliza Pano v. A.G.,(1962) 16(ii) P.D. 1105; Grama v. A.G. (1963) 17(ii) P.D. 952; Goodman v. State of Israel, (1985) 39(iii) P.D. 427. Israeli law does not prescribe the death penalty for murder. However, Israeli law also does not recognize the principle of diminished responsibility, and there have been cases in which all the psychiatric experts, including those called to testify for the prosecution, agreed that the defendant could not resist his desire, but since the court was not convinced that the desire stemmed from a psychotic state, it convicted the defendant of murder, and sentenced him to the mandatory life imprisonment. The court ruled that absent legislative recognition of the diminished responsibility principle, it was required to sentence him as it would sentence any other murderer whose desire was resistible.

See, e.g., Eisenberg v. State of Israel, supra n. 2, at 819. It is worth noting that, under Israeli law, the burden of proof in regard to the insanity defence falls upon the defendant (although the burden of proof is that of the preponderance of evidence, as in civil law), and that the decision as to whether that burden was met is not made by a jury but by professional judges. These facts, too, may weigh heavily upon a defendant seeking recourse to the irresistible-desire claim in Israeli law.

5 See Mandelbrot, supra n. 1.

6 See Mizan, supra n. 1.

7 See sec. 44 of Bill 2098 of 6 January 1992, and see infra n. 8, and text at pp. 180, 181.

8 Mandelbrot, supra n. 1, at 292. On disapproval with the way lawyers use the term “irresistible impulse” see: Goldstein, A., The Insanity Defence, (Yale, 1967) 69–70Google Scholar; Robinson, P., Criminal Law Offences, vol. II (Minnesota, 1984) 302–303.Google Scholar

9 The section treating of insanity in the bill currently under debate in the Knesset (see supra n. 7) employs the expression “inability to act lawfully”. This expression has rather a large scope, and it can apply not only to situations of irresistible desire but equally to situations in which a person is unable to control his behaviour as a result of internal, physiological impulse (states of automatism) and even to situations where the lack of control is caused by external physical forces. The use of the term “irresistible desire” underscores the difference between the defence I wish to discuss and those that rely on the latter two types of situations.

10 On the distinction between “desire” in the sense of “urge” or “craving”, and “desire” in the sense of “want” or “will”, see: Davis, J.A., “The Two Senses of Desire,” in Marks, J., ed., The Ways of Desire (Chicago, 1986) 62–82Google Scholar, and see also H. Frankfurt's distinction between desire of the first order and desire of the second order in Frankfurt, H., The Importance of What We Care About (Cambridge, 1988) 11–25CrossRefGoogle Scholar, and Piaget, J., “Will and Action”, Bulletin of the Menninger Clinic, vol. xxvi, no. 3 (May 1962) 144.Google Scholar

11 See Morse, S., “Psychology, Determinism and Legal Responsibility”, in Nebraska Symposium on Motivation (1985) 61–71.Google ScholarPubMed

12 In this regard, see, e.g., Aliza Pano, supra n. 3, at 1110, 1105, per Berenson J.: “A person cannot enjoy the irresistible-desire defence unless … as a result of a disease of the mind from which he suffers, he is totally bereft of volition, and is a prisoner of his desires, unable to be free of them”. And also see Goodman v. State of Israel, supra n. 3. Sec. 44 of the proposed bill for the general part of a new penal law, currently being debated in the Knesset, the term “irresistible desire” is not employed. Rather, the proposal speaks of “an absence of substantial capacity to refrain from doing the act”, (see supra n. 6). But from the drafters' explanatory notes it is clear that they did not contemplate a situation in which it is difficult for a person to control himself, but a situation in which he is unable to control himself. As Prof. Feller, who played a central role in drafting the proposal, states: “We are concerned with the total absence of volitional control and not of a weakening ofthat power”. See Feller, supra n. 2, at 73. In drafting sec. 44, the drafters would appear to have followed sec. 4.01 of the American Model Penal Code (see infra, n. 46) that also speaks of lack of substantial capacity”. But it should be noted that according to the explanatory notes of the American drafters it appears that, among other reasons, they employed this phrase because they believed the defence to be applicable not only to persons who cannot control themselves, but also to those for whom it is very difficult. See Model Penal Code 4.01, Comment 158, Tentative Draft No. 4, 1955. Clearly, the intention of the drafters of sec. 44 of the Israeli proposal was different They intended that the section would exculpate only persone unable to control themselves. They might better have expressed that intention if, instead of lack of substantial capacity”, they had employed the phrase “lack of any capacity”.

13 On one of the most recent attempts to develop a theory distinguishing between the question of whether a person's conduct can be given a causal explanation and whether he has the ability to control his conduct, see Wolf, S., Freedom Without Reason (Oxford, 1990) 94–117Google Scholar, and see also Moore, M., “Causation and the Excuses” (1973) 73 Cal. L. R. 1091–1143.CrossRefGoogle Scholar

14 H.L.A. Hart presents this assumption with the help of the distinction between capacity and opportunity: “What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent, as they are in different ways in the varied cases of accident, mistake, paralysis, reflex action, coercion, insanity, etc., the moral protest is that it is morally wrong to punish because ‘he could not have helped it’ or ‘he could not have done otherwise’ or ‘he had no real choice’”. Hart, H. L. A., Punishment and Responsibility, (Oxford, 1968) 152.Google Scholar

15 On some of the attacks upon this assumption, see H. Frankfurt, supra n. 10, at 1–10, and Dennett, D., Elbow Room, (Cambridge, 1984) 131–152.Google Scholar

16 See, e.g., Bayles, M., “Character, Purpose and Criminal Responsibility”, (1982) Law and Philosophy 5–20CrossRefGoogle Scholar; Nozick, R., Philosophical Explanations (Harvard, 1981) 394–396Google Scholar; Fletcher, G., Rethinking Criminal Law (New York, 1978) 800.Google Scholar On some of the problems raised by this theory of responsibility, see Moore, M., “Choice, Character, and Excuse”, in Paul, F., Miller, F. and Paul, J., eds., Crime, Culpability and Remedy (Blackwell, 1990) 29–59.Google Scholar

17 According to the central rule established in the McNaughtan case: “To establish a defence on the grounds of insanity, it must be conclusively proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason from the disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong”. R v. McNaughtan, (1843) 8 E.R. 718.

18 Mandelbrot, supra n. 1, at 306–308.

19 Ibid., at 323–324.

20 Ibid., at 327.

21 Ibid., at 311–312. Agranat J.'e view that the criminal law must be founded on considerations of justice, and that those considerations require tile conclusion that we must not convict or punish a person who could not act otherwise is expressed not only in regard to the issue of irresistible desire but in other contexts as well. See, e.g., his position in regard to strict liability in Gadisi v. A.G., (1966) 20(i) P.D. 68.

22 Mandelbrot, supra n. 1, at 327–331.

23 See in this regard, Williams, G., Criminal Law, (London, 1963) 342–347Google Scholar; Barnes, B., “A Century of the McNaughtan Rules” (1944) 8 Camb. L. J. 300.CrossRefGoogle Scholar

24 This is one of the arguments raieed against Agranat J. by the majority in Mandelbrot, supra n. 1, at 337, 345.

25 Hart, supra n. 14, at 187. A similar opinion was voiced by Silberg J. in Mandelbrot, supra n. 1, at 337. Prof. Feller took exception to the interpretation of Agranat J. for a different reason. According to Feller, sec. 11 only comprises the concept of mens rea in the narrow sense. See Feller, S. Z., “Is There No Basis for the Mental Element of Crime in Israeli Law?” (1967) 23 HaPraklit 308.Google Scholar

26 Mandelbrot, supra n. 1, at 333.

27 It is interesting to compare the decision of Agranat J. in Mandelbrot, in which he created a revolution in Israeli criminal law, and his landmark decision in Kol Ha'am, in which he created a revolution in Israeli constitutional law. In both cases, Agranat J. deviated from the previously accepted legal norms in those fields, and established new rules that guide Israeli courts to this very day, and in both cases, his judicial activism stemmed from his general views on fundamental values that should guide the law. The similarity between the two decisions is also reflected in their structure. In both cases, Agranat J. first presents his general views at length, and only then did he present the legal basis he endeavoured to find in the existing law. See Kol Ha'am v. Minister of the Interior, (1953) 7 P.D. 871.

28 Mandelbrot, supra n. 1, at 334, 336.

29 Ibid., at 328.

30 See cases cited supra n. 2.

31 This is the opinion expressed by Bazak, Y. in his book The Criminal Responsibility of the Mentally Impaired (Jerusalem, 1964) 103.Google Scholar

32 Mandelbrot, supra n. 1, at 316.

33 Ibid., at 333.

34 See Eisenberg, supra n. 2, at 824: “It is well-known that, at times, a person may plan and execute a murder because he suffers from certain mental impairments and, as a result, is unable to restrain himself. However, as long as those impairments do not constitute mental illness under the accepted criteria, he will bear responsibility for his act to the full extent”. It is assumed here that an irresistible desire could stem from mental impairment that would not constitute mental illness.

35 See, for example, the characterizations of Obsessive-Compulsive Disorder and Impulse Control Disorders in American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3rd ed., 1987) secs. 312, 300–330.Google Scholar

36 See in this regard: Fingarette, and Hasse, , Mental Disabilities and Criminal Responsibility (U. of Cal., 1979) 57–58, 253–257.Google Scholar

37 Mandelbrot, supra n. 1, at 328.

38 See in this regard: Hall, J., General Principles of Criminal Law, (N.Y., 1947), 479–499Google Scholar; Livermool, J. and Meehl, P., “The Virtues of McNaughtan”, (1967) 61 Minnesota L. R. 789.Google Scholar

39 Agranat J. relied, primarily, upon Glouck, S., Mental Disorder and the Criminal Law (N.Y., 1947)Google Scholar, and Guttmacher, M. and Weihofen, H., Psychiatry and the Law (N.Y., 1952).Google Scholar Agranat J. mentions these books several times throughout the decision, see Mandelbrot, supra n. 1, at 302, 305, 317, 320, 325.

40 Royal Commission on Capital Punishment, 1949–63 Cmd. 8932 (1953), 79–83, 93–96, 106–112.

41 Durham v. U.S., (1954) 21 F.2d 862.

42 This meeting is recorded by Agrana's biographer, Pnina Lahav. See Lahav, P., “Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy” (1990) 24 Is.L.R. 211, at 249–250.Google Scholar

43 See in this regard: Morse, S., “Failed Explanation and Criminal Responsibility: Experts and the Unconscious”, (1982) 68 Va. L. R. 971CrossRefGoogle Scholar; Kenny, A., “The Expert in Court”, (1983) 99 L.Q.R. 197Google Scholar; Faust, D. and Ziskin, J., “The Expert Witness in Psychology and Psychiatry”, (1988) 241 Science 31–35, 1142–1143.CrossRefGoogle ScholarPubMed

44 Bazelon, D., Interface of Law and the Behavioral Sciences (The Lowell Institute Lecture, February 26, 1964).Google ScholarPubMed

45 United States v. Hinckley, (1982) 672 F.2d 115; and see Jeffries, J. and Bonnie, R., The Trial of J. Hinckley, (Foundation Press, 1986).Google Scholar On the impact of the Hinckley case on the demand for reform of the insanity defence in American Law, see Perlin, M., Mental Disability Law (Virginia, 1989) vol. I, pp. 384–409.Google Scholar

46 Model Penal Code (American Law Institute) 4.01: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law”. The deviation of this rule from the McNaughtan Rules is expressed not only in the addition of the criterion of the defendant's capacity to control his conduct but also, among other things, in the replacing of the “knowledge” requirement of McNaughtan's cognitive tests by the more flexible “appreciation”. However, this change had no major effect upon the courts as even the “knowledge” condition had been broadly and flexibly construed by the courts on many occasions. See in this regard infra n. 74.

47 The Insanity Defence Reform Act 1984, 18 U.S.C. 20(a), and see also United States v. Lyons, (1984) 731 F.2d 23 (5th Cir.).

48 These opinions were published in the United States in Mental Disability and Law Report (March 1983).

49 See Lahav, supra n. 42, at 264.

50 See supra nn. 7 and 9. It should also be noted that despite the questions that have arisen as to the ability of psychiatrists to aid the courts in the matter of volitional control, the fact is that in many countries the insanity defence still include the irresistible-desire test or some similar volitional control test. See, e.g., sec. 20 of the West German Criminal Code, sec. 10 of the Swiss Criminal Code, sec. 88 of the Italian Criminal Code, sec. 40 of the French, Avant-Projet Definitif de Code Generak (1978).Google Scholar

51 See supra, text at nn. 8 and 9.

52 Kenny, supra n. 43, at 210, 211.

53 Feinberg, J., Doing and Deserving, (Princeton, 1970) 282–283.Google Scholar

54 Wootton, B., Crime and the Criminal Law, (London, 1981) 219.Google Scholar

55 One of those who considered the relationship between the power of self-control and a certain measure of cognitive ability to weigh alternatives was the noted 19th century lawyer, J. Stephen in hie discussion of the McNaughtan Rules. See Stephen, J., The History of the Criminal Law in England (London, 1883) vol. II, pp. 170–171.Google Scholar

56 On the dispute of this topic see, e.g., the articles in Flagan, O. and Rorty, A., eds., Identity, Character and Morality, (Cambridge, 1990)Google Scholar, and see also Cohen, M. Dan, “Responsibility and the Boundaries of the Self” (1992) 105 Harv. L. R. 959–1003.CrossRefGoogle Scholar

57 Glover, J., Responsibility, (N.Y., 1970) 97–101.Google Scholar

58 Neely, W., “Freedom and Desire”, (1974) 83 Philosophical R. 32–54.CrossRefGoogle Scholar

59 On the issue of Weakness of Will and the dispute surrounding it, see Mele, A., Irrationality, (Oxford, 1987)Google Scholar and Gosling, J., Weakness of Will, (Boutledge, 1990).CrossRefGoogle Scholar

60 Agranat J. mentioned the Policeman Test in Mandelbrot, supra n. 1, at 300–302. He did not analyze it, and it seems that he rejected it as invalid.

61 In describing this case I proceed from the assumption that one may speak not only of a desire to do an act but also of a desire to refrain from doing an act, and that Rachel's fear of entering the elevator involves a desire not to enter it It may possibly be argued that the phenomenon displayed by Rachel's behaviour is not one of irresistible desire but of automatism. But according to my characterization of the distinction between these states, a person is in a state of automatism when the causes for his state are purely physiological ones unrelated to his beliefs, emotions, or desires at the time. In the case of Rachel, she could not be said, therefore, to have been in a state of automatism. She would not have acted as she did were it not for her fear of using elevators. Her conduct cannot be compared to the involuntary reflexes of a Parkinson's sufferer, for example, as those reflexes are not related to beliefs, emotions, or desires of that person.

62 In order to justify her view, B. Wootton relies, inter alia, upon the claim that we can never establish what happened in another person's mind (see her book, supra n. 54, at 78, 90). As Hart rightly observed by this line of reasoning we can never know not only if a defendant could control himself, but whether he understood what he was doing, and intended to do it. See Hart, supra n. 14, at 202. But one cannot accuse Wootton of inconsistency, as according to her theory, criminal law should dispense not only with the irresistible-desire claim but with the principle of mens rea as well. A critical discussion of this theory can be found in Ten, C., Crime, Guilt and Punishment (Oxford, 1987) 110–122, 128–13.Google Scholar

63 See in this regard Davidson, D., Essays of Actions and Events, (Oxford, 1980) 3–21Google Scholar; Davidson, D., “Paradoxes of Irrationality”, in Wollheim, W., ed., Philosophical Essays on Freud, (Cambridge, 1982) 289–306.CrossRefGoogle Scholar As I pointed out at the beginning of the article, the desire we are discussing is one in the sense of craving or urge and not of want or will (see supra n. 10), and if it can be argued that a desire of the second sort can form the cause (or part of the cause) of a certain conduct, then it can certainly be maintained that desire of the first sort can form such a cause.

64 On focusing attention on the negative consequences of satiating desire and on other means for trying to overcome desire, see Mele, supra n. 59, at 60–61.

65 According to the characterization of Impulse Lonctol Disorder in DSM-III-R (see supra n. 35), persons suffering from this disorder do not resist their desire in certain situations. This characterization is weaker than that by which such people cannot resist their desire.

66 On some of the problems raised by the claim that drug addicts or alcoholics cannot resist their desire to use such substances, see Fingarette, H., Heavy Drinking: The Myth of Alcoholism as a Disease, (Berkeley, 1988).Google Scholar

67 See Rohan, supra n. 1.

68 See in this regard Morse, S., “Crazy Behavior, Morals and Science: An Analysis of Mental Health Law”, (1978) 51 S. Cal. L. R. 560–590.Google Scholar

69 It is worth noting that the fact that the defendant carefully planned his crime was a subject of disagreement among the psychiatrists who testified before Israeli courts. In Goodman, supra n. 4, several psychiatrists testified that the fact that the defendant carefully planned his steps proved that he did not suffer from paranoid-schizophrenia and was not mentally ill. But the court was unwilling to accept that view, arguing that in Mandelbrot and in Rohan it was established that careful planning did not negate the possibility of paranoid-schizophrenia. (This was not entirely accurate inasmuch as Mandelbrot was not diagnosed as a paranoid-schizophrenic, but as simply paranoid).

70 In an important article “Factual Tests for Identification of Volitional Insanity” (1984) 19 Is.L.R. 10–47, Prof. Feller argues that if we examine the cases in which Israeli courts were willing to consider a defence of “irresistible morbid impulse”, and compare them to the caees in which the courts were unwilling to entertain the defence, we will diecover that the former cases meet three cumulative criteria that are not found in the latter. First, the motivation for the defendant's criminal act was not founded upon reality; second, the motivation did not derive from a rational mistake; and third, the act was a systematically planned non-impulsive act, the outcome of an “idée fixe” which gradually took hold of the perpetrator. It would seem that Prof. Feller is correct in stating that these conditions were met in the few cases in which the irresistible-desire defence succeeded, and were absent in all those cases where the claim did not succeed. But reading Feller's article one gets the impression that he does not suffice with that description of the case law but considers the three conditions he mentions to be psychologically well-founded (ibid., at 20–24). Yet, we should not rule out the possibility that a particular schizophrenic might commit an offence as a result of an uncontrollable, unplanned, impulsive outbreak, just as we should not rule out the possibility that people who are not out of touch with reality suffering from compulsive behaviour, phobias, or other non-psychotic disorders may, at times, unpremeditatedly find themselves in situations in which they cannot resist their desire. It can be argued that, for pragmatic reasons that I shall mention later, it is not desirable that the law absolve such people of criminal liability. But, from the psychological standpoint, it is hard to accept the assumption that such people are capable of resisting their criminal morbid desire in every possible situation, while paranoids such as Rohan are never able to do so. The three conditions mentioned above are psychologically neither necessary nor sufficient for identifying irresistible morbid desire.

71 Fingarette, H., The Meaning of Criminal Insanity, (Berkeley, 1972) 173–215Google Scholar; Radden, J., Madness and Reason, (London, 1985), 88–109Google Scholar; Kadish, S., Blame and Punishment, (N.Y., 1987)Google Scholar; Moore, M., Law and Psychiatry, (Cambridge, 1984) 221–223Google Scholar; S. Morse, supra n. 43, at 810–811.

72 Even if we assume that relative to his own belief system, Rohan's conduct was rational, at least some of the beliefs about himself and the world which motivated him are clearly inconsistent with basic norms of rational thought Certain adherents of the anti-psychiatric movement, such as R. Laing, would not accept this view. In their opinion, even the thoughts of a severe schizophrenic are rational. I do not believe them to be correct in this matter, but this is not the place to consider the difficult concept of rationality.

73 Mandelbrot, supra n. 1, at 306–308.

74 See Goldstein, A., The Insanity Defence, (Yale, 1967) 49–53.Google Scholar

75 Bill 2098 of 6 January 1992.

76 If the proposed bill is adopted by the Knesset, non-psychotic defendants wishing to raise a claim of irresistible desire could, perhaps, make recourse to sec. 42 of the bill, which exculpates a person “who did not have control over his bodily movements”. But it is not clear how the courts will interpret that section, since it can be argued that this section applies only to uncontrollable movements due to purely physiological or physical events and not to conduct that satieties one's desire. It is worth noting that in the cases in which the courts rejected a plea of irresistible desire out of hand, on the basis of the desire not deriving from a mental illness (see the cases cited supra nn. 1–4), they did not consider the possibility of accepting the plea on the basis of the automatism principle comprised, according to Agranat J., by sec. 11 of the Criminal Code Ordinance, 1936.