concurring.
The court announces today that its recent Brigance1 teaching shall not be extended to benefit an adult buyer of liquor who injures himself while voluntarily intoxicated. While I join in the court’s pronouncement, I am writing separately to explain my own rationale for refusing to recognize an actionable claim against the drink’s supplier by a sui juris consumer who voluntarily and knowingly ingests alcohol. Because in my view the question before us is broader than that answered by the court’s opinion,2 my concurrence today is not to be understood as a vote to deny actionability to claims against liquor suppliers when sued by three classes of consumer with impaired will. These consumers are narrowly defined later in my writing.
I
BRIGANCE ABROGATES THE COMMON-LAW CAUSAL BARRIER AGAINST THIRD PARTIES’ RECOVERY FROM THE TAVERNKEEPER
By the common law of England a tavern owner is not liable for furnishing alcoholic beverages to one who after becoming intoxicated injures either himself or another. Claims do not lie against liquor vendors because — according to the common law’s notion of causality — it is the voluntary consumption of alcohol rather than its sale that constitutes the proximate cause of the injuries sought to be redressed.3 The causal barrier springs from the common law’s recognition that human beings are endowed with free will. The cause of intoxication-generated harm is indivisible and the blame neither transferable nor appor-tionable. One who voluntarily and knowingly overdrinks is viewed as the author of his willed misdeeds and of the ensuing harm. He/she is alone responsible for the consequences of the action.4 The individual’s willed ingestion breaks the chain of causation and insulates the tavern-keeper’s sale from becoming the proximate cause of the ingestion-generated damage.
The teaching of Brigance removes the causal barrier for a third party injured by the intoxicated purchaser. Brigance makes a third party’s claim actionable by rejecting the common law’s notion that the buyer’s voluntary ingestion poses an insuperable impediment to the causal nexus critical to imposition of liability against the drink’s provider. In a later case, McClelland v. Post No. 1201, VFW5 we pronounced the pre-existing causal barrier applicable to all claims arising before the effective date of Brigance, no matter what recovery theory may be invoked against the tavemkeeper. Because Brigance appears to signal a sweeping rejection of the common-law causal barrier for all claims generated by the provision of liquor, a revisit of its historical antecedents and underpinnings seems appropriate to limit the outer sweep of that pronouncement.6
II
THE COMMON LAW’S CAUSAL BARRIER SHOULD BE REMOVED TO CREATE ACTIONABLE CLAIMS FOR ONLY THREE NARROWLY DEFINED CLASSES OF INTOXICATED CONSUMER
The question before us today is whether the common-law causal barrier of volun*514tary ingestion should remain standing for claims by an intoxicated purchaser against the on-the-premises seller.7 The gravamen of the tavernkeeper’s immunity from civil liability is the common law’s recognition that the imbiber’s free will in ingesting liquor breaks the chain of causation and becomes the sole cause of harm. While I join in the court’s refusal today to disturb this principle to benefit the uncoerced sui juris consumer, I would extend Brigance to allow actionable claims for only three narrowly defined classes of intoxicated consumer — all comprised of persons clearly unable to exercise free will: (1) those sui juris claimants whose will was overborne by duress, coercion or other wilful or grossly reckless misconduct, (2) those who were induced into imbibing by false misrepresentations that the potion was nonalcoholic or harmless and (3) those under legal disability — minors and mentally disabled— i.e., persons whose will the law recognizes as impaired by definition. My approach would leave largely unaltered the traditional common-law norms of civil accountability.
A. Sui Juris Persons Whose Will Cannot Be Freely Exercised
The common law distinguishes between one’s exercise of a free will and one’s acts from overborne will. A person is generally deemed to act with a free will and is considered responsible for harm which results *515from his (or her) voluntary intoxication.8 This notion is founded on time-honored and widely-held Western tradition that people who voluntarily and knowingly drink excessive amounts of alcohol will their own destruction. On the other hand, the capacity for free action is effectively destroyed when one's free will (a) is overborne by the conduct of another which compels compliance with some demand by means of duress, coercion or threats9 or (b) is impaired by false misrepresentations.
I would make the common law’s causal barrier uninvocable by those tavernkeepers (or their agents) who either (a) have overborne the sui juris buyer’s will by wilful, oppressive or grossly reckless conduct or (b) have impaired it by falsely misrepresenting that the potion was harmless or nonalcoholic. Those classes of person clearly are dehors the protection affordable by the rationale underlying the law’s restrictions on actionable claims against liquor suppliers. Yesteryear’s causal barrier assumes the imbibers possess a natural capacity to exercise their free will. If this prove untrue, the reason for the causal barrier’s invocation no longer exists.10
B. Minors and Mentally Disabled Persons
I would treat the claims of minors and mentally disabled persons as actionable either on the theory of tavernkeeper’s wilful *516misconduct or for negligence in furnishing liquor to persons who are known or should be recognized as being under legal disability-
A tavernkeeper’s liability for serving alcoholic beverages to a legally disabled ov-erimbibing consumer, who is then injured while intoxicated, may be viewed as comprised within that class of common-law tort which imposes responsibility for acts of furnishing a dangerous instrumentality to immature or mentally disabled persons.11 The delictual accountability rests in these instances on a breached duty to exercise that degree of care which is generally owed to persons under legal disability in proportion to their incapacity for self-protection. Liquor, when consumed by a child or by a mentally impaired person, is known to pose great danger. A tavern owner’s sale of alcoholic beverages to persons he knows or should know to be under legal disability creates a well-perceived risk to the buyer’s safety. The latter is entitled to the degree of care proportionate to his (or her) inability to foresee and to avoid the perils of alcohol intoxication.
Removal of the causal barrier for claims by minors and by the mentally disabled is entirely consistent with the common law’s traditional protection accorded persons with an impaired will.12 Liquor consumers falling into this narrowly defined class must be treated differently from uncoerced sui juris drinkers.
Ill
UNDER BOTH THE VOLENTI AND THE IN PARI DELICTO DOCTRINES, A SUI JURIS PERSON WHO VOLUNTARILY EXPOSES HIMSELF TO DANGER BY CONSUMING ALCOHOLIC BEVERAGES ASSUMES THE RISK INHERENT IN THAT ACTIVITY
The risk assumption notion of the volenti non fit injuria doctrine applies to un-coerced sui juris consumers. Under the volenti doctrine, when one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he (or she) is deemed to have assumed the risk and is precluded from recovery for the resulting injury.13 The maxim is predicated upon one’s knowledge *517and appreciation of the danger and one's voluntary subjection to its consequences.14
Applying the volenti doctrine, one must conclude that, based on voluntary assumption of the known and apparent risk from ingestion of alcoholic beverages, the claim of a sui juris person cannot be recognized as actionable.15 A known risk of consumption is the possibility that the tavernkeeper or his agents will negligently fail to recognize a consumer’s obviously intoxicated state. An imbiber who drinks intoxicants on the premises implicitly acknowledges the possibility that the tavern owner may negligently continue to serve him liquor even though he has become inebriated and accident-prone while in that condition.16 In contrast, a person laboring under a legal disability because of age, mental impairment, false misrepresentations or coerced will — who can neither appreciate nor willingly assume the risk involved — will not be taken to have exposed himself to the risk of harm that arises from the tavernkeeper’s negligent conduct.17
Furthermore, when the tavernkeeper serves alcoholic beverages to an obviously intoxicated patron who voluntarily consumes the liquor and becomes drunk in a public place, both parties are in violation of criminal law.18 As between parties in pan delicto (those in equal criminal fault), the *518law will aid neither, but will leave them in the condition in which they are found.19
Moreover, allowing the inebriated sui juris consumer to sue the tavernkeeper would create a paradox and asymmetry in the law and thus stultify the legal system. The guilty drunk could throw off the entire burden of his civil accountability from himself to another, or have his fault apportioned with that of the tavernkeeper for the very same occurrence for which he would alone stand criminally responsible.20 Individual and indivisible criminal accountability would be transformed into a form of shared or apportioned civil responsibility for the same act or omission. In short, a criminally punished public drunk could pass on to the liquor supplier the damages occasioned by the drunk’s own commission of a penal offense.21
Lifting the causal barrier for claims by tipsy drinkers against their liquor suppliers is not likely to foster safer consumer habits nor exhort the public to moderation. Legal liability that can be shared with or shifted to another tends to diminish an individual’s sense of personal responsibility for the consequences of his (or her) own conduct. That in turn poses danger to the public.
*519IV
TODAY’S OPINION REFUSES TO SUBJECT LIQUOR SUPPLIERS TO A NEW FORM OF PASS-THROUGH CRIMINAL ACCOUNTABILITY THAT WOULD MAKE THEM CIVILLY ANSWERABLE TO A DRUNK CONSUMER FOR LOSSES FROM THE LATTER’S VIOLATIONS OF THE STATE’S PENAL CODE WHILE IN A STATE OF VOLUNTARY INTOXICATION
Had the court invoked today our comparative negligence regime, 23 O.S.1981 §§ 13, 14, to announce tavernkeeper’s new liability to the drinking consumer, it would have crafted a new form of pass-through criminal responsibility for liquor suppliers, which would make them civilly answerable to a drunk consumer for losses from the latter’s violations of our Penal Code while in a state of intoxication (public drunk,22 driving while intoxicated23 or driving while impaired,24 and any other offenses in which the actor’s drunkenness constitutes an element of the crime). Under the cloak of developing tort liability — a subject traditionally within the ambit of our common law25 — the court would have created a new class of obligor who might be co-responsible with the drunk for the incidents of the latter’s criminal penalties. If a convicted drunk driver were to sue the tavernkeeper, the latter could now be called upon to respond in damages for confinement-related economic and personal losses, criminal fines, court costs and counsel fees, either in toto or pro tanto, based on the defendant’s degree of negligence. The incidence of criminal liability is indeed affected by such an indirect deflection of the whole or a portion of one’s penalty; it would create a rubric of shared or pass-through accountability for a class of public offense — a concept that contravenes 21 O.S.1981 § 2,26 which invests the Legislature alone with the power to regulate the incidence of criminal responsibility.27 This court cannot define offenders, either direct or remote, any more than it may create a public offense. The three classes of person whom I would allow to press claims against liquor suppliers are not subject to the Penal Code’s prohibitions. These class members enjoy *520statutory immunity grounded on the law’s recognition of their impaired will.28
Had the court announced the tavernkeeper’s new broad liability to every drinking consumer, it would have established a subclass of pass-through offender upon whom the law casts, in whole or in part, the onus of a criminal penalty. I could not countenance this indirect encroachment into the exempted arena of criminal accountability.
V
A PRIVATE RIGHT OF ACTION CANNOT BE IMPLIED FROM ART. 28, § 5, OKL. CONST.29
I cannot accede to the dissent’s view that Art. 28, § 5, Okl. Const., creates a private right of action for an inebriated consumer.
The U.S. Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics30 and its progeny31 has recognized that a right of action for damages against a federal officer may exist by constitutional implication, though it has imposed a precondition upon the scope of the permissible constitutional implication. There must be an absence of an equally effective statutory remedy for the vindication of an expressed fundamental-law protection.32 No implied private cause of action can be said to have been created directly by Art. 28 in the face of vitalizing legislation that is amply effective.
Art. 27, Okl. Const. (Art. 28’s predecessor), is no more than a yesteryear’s promise to the people of Oklahoma that if they would vote to repeal prohibition they will receive the protection of criminal process through statutes prohibiting licensed liquor dealers from selling alcoholic beverages to minors and to intoxicated adults. This promise stands in fact fulfilled by the legislature’s post-amendment enactment of the Oklahoma Alcoholic Beverage Control Act [Act],33 which in its earlier form provided that any one who knowingly sells alcoholic beverages to minors and intoxicated persons shall be guilty of a felony.34 When the Act came to be amended in 1985 — after Art. 27 was repealed in 1984 and replaced by Art. 28 to allow county option for the sale of liquor by the drink — its criminal penalty provisions remained essentially undisturbed.35 The statutory regime now in force provides an effective criminal remedial scheme for the fulfillment of public policy considerations that underlie the Oklahoma constitutional protections in question. In short, the criminal-law regime in force effectively serves to vitalize *521the promise embraced in the constitutional shield.
The Cort v. Ash36 standards do not afford a basis for implying a private right of action in favor of drunks. The multi-prong Cort test — which was established for determining whether a private right of action may be implied in a regulatory statute where there is no explicit text creating it — requires the plaintiff to be one of the class for whose especial benefit the act was enacted.
No private cause of action can be implied to favor drunks. They, as a class, were not intended as beneficiaries of the constitution’s promise and of the implementing legislation. Rather, that promise clearly was made for the protection of the public; the intended beneficiaries of our Constitution are the potential victims of drunks— not the drunks themselves. Neither the state constitution nor its vitalizing legislation either explicitly or implicitly suggests an intent to fashion a private remedy for sui juris excessive consumers of liquor. The amendment is plainly intended to create a public right that is amply enforceable by criminal statutes.
SUMMARY
In sum, after my own revisit of Bri-gance and its history, I join today in the court’s refusal to remove the common law’s causal barrier to allow claims by sui juris consumers who voluntarily and knowingly over-ingest alcohol. Because I remain firmly committed to the notion that third parties who are injured by a tavernkeeper’s tortious sale — a sale tainted by the supplier’s guilty knowledge (scienter) of the consumer’s intoxicated state — must receive the law’s protection, I would not today reject a future imprimatur for those claims against liquor suppliers which are pressed by consumers (a) whose will was impaired by the seller’s duress or false misrepresentation or (b) those incapable of voluntary ingestion by incapacity from age or mental deficiency.
. Brigance v. Velvet Dove Restaurant, Inc., Okl., 725 P.2d 300 [1986].
. The class of consumer described in the federal certified question ("intoxicated drivers") appears to be broader in scope than that addressed by today’s pronouncement (adult consumers who voluntarily imbibe liquor). The term “intoxicated drivers" is sufficiently broad to encompass liquor consumers with impaired will.
. Brigance v. Velvet Dove Restaurant, Inc., supra note 1 at 302; McClelland v. Post No. 1201, VFW, infra note 5 at 571-572.
. White, Grounds of Liability, An Introduction to the Philosophy of Law, p. 61 [Clarendon Press, Oxford 1985]. For this textwriter’s explanation see infra note 9.
. Okl., 770 P.2d 569, 572 [1989].
. My commitment to Justice Simms’ separate opinion in Brigance, supra note 1, at 306 (Simms, J., concurring), limits, at least for the author and me, the outer sweep of the Brigance pronouncement by excluding from its purview claims by the inebriated consumer himself.
. Courts are divided on this issue. Nonactiona-bility of an intoxicated consumer’s claim against the tavernkeeper has been rested on various grounds:
(a) Some courts have retained the common-law rule that the consumer's injuries are caused by his own actions rather than those of the alcoholic beverages provider. Great Cent. Ins. Co. v. Tobias, 37 Ohio St.3d 127, 524 N.E.2d 168, 171 [1988]; Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383, 388 [1967]; Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975 [1982]; Bertelmann v. Taas Associates, 69 Haw. 95, 735 P.2d 930, 933 [1987]; Allen v. County of Westchester, 109 A.D.2d 475, 492 N.Y.S.2d 772, 773, 775-776 [A.D. 2 Dept. 1985] (the court stated that allowing a consumer to recover for injuries resulting from his voluntary alcohol ingestion “would be tantamount to creating a no-fault law for intoxicated persons"-, the court further opined that to “allow recovery in favor of one who has voluntarily procured a quantity of liquor for his or her own consumption with full knowledge of its possible or probable results ‘would savor too much of allowing [said] person to benefit by his or her own wrongful act' ”) (emphasis added); see also Gregor v. Constitution State Ins. Co., 534 So.2d 1340, 1344 [La.App.1988], where the court stated that "man has a free will and is responsible for harm to himself as a result of voluntary intoxication ”. (Emphasis added.) Some courts have retained the common-law rule in social host cases. Shuman v. Mashburn, 137 Ga.App. 231, 223 S.E.2d 268, 271 [1976]; Sutter v. Hutch-ings, 254 Ga. 194, 327 S.E.2d 716, 719, n. 7 [1985],
(b) Other courts have found that the intoxicated person assumes the risk, is contributorily negligent by law, or defeats his own cause of action through his wilful and wanton misconduct. Thrasher v. Leggett, 373 So.2d 494, 496-497 [La. 1979]; Tome v. Berea Pewter Mug, Inc., 4 Ohio
App.3d 98, 446 N.E.2d 848, 853 [1982]; Kemock v. Mark II, 62 Ohio App.2d 103, 404 N.E.2d 766, 773, 777 [1978] (the consumer’s voluntary action of driving the car was viewed as negligent and not the actual consumption of the alcohol itself); Sissle v. Stefenoni, 88 Cal.App.3d 633, 152 Cal.Rptr. 56, 57 [1979]; Bertelmann v. Taas Associates, supra 735 P.2d at 934; Cooper v. National Railroad Passenger Corporation, infra note 16, 119 Cal.Rptr. at 544-545; but see Davis v. Stinson, 508 N.E.2d 65 [Ind.App.1987]; see also Ewing v. Cloverleaf Bowl, 20 Cal.3d 389, 143 Cal.Rptr. 13, 572 P.2d 1155 [1978] (a cause of action was allowed when the bartender's conduct was found to be wilful and wanton and the decedent’s merely negligent).
(c) Some courts have based nonliability on the rationale that the tavernkeeper owes the consumer no duty to protect him from the results of his own intoxication, or that public policy considerations preclude the judicial creation of a cause of action. Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310, 1313 [N.M.App.1986]; Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261, 1265 [1980]; Tobias, supra 524 N.E.2d at 171; Swartz v. Huffmaster Alarms Systems, Inc., 145 Mich.App. 431, 377 N.W.2d 393, 396 [1985].
(d) Several courts have declined to make a public policy determination, deferring on this issue to the legislature. Wright v. Moffitt, 437 A.2d 554, 555 [Del.Supr.1981]; Tobias, supra 524 N.E.2d at 172; Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 [1976].
(e) In some jurisdictions the state's dram shop act is deemed to be the exclusive remedy. Ruth v. Benvenutti, 114 Ill.App.3d 404, 70 IlI.Dec. 335, 337, 449 N.E.2d 209, 211 [1983]; Martin v. Pa-lazzolo Produce Co. Inc., 146 IlI.App.3d 1084, 100 IlI.Dec. 703, 710, 497 N.E.2d 881, 882 [1986]; Rosas v. Damore, 171 Mich.App. 563, 430 N.W.2d 783, 784 [1988]; Jackson v. PKM Corp., 430 Mich. 262, 422 N.W.2d 657 [1988],
. See Gregor v. Constitution State Ins. Co., supra note 7 at 1344; Thrasher v. Leggett, supra note 7.
. "As regards the voluntary nature of acts done when [one is] drunk or drugged, the law commonly draws a distinction, similar to that which we saw both it and Aristotle did in pleas of duress, between cases when the agent [actor] is responsible for his condition and cases when he is not. Thus, acts due to externally administered drugs or drink are allowed to be involuntary, while those due to the self-administered are not ” (footnotes omitted) (emphasis mine). White, Grounds of Liability, An Introduction to the Philosophy of Law, supra note 4 at 61.
The common-law doctrine of duress is divided into two classes — duress by imprisonment and duress per minas. The latter arises when a person is threatened with loss of life or limb, or with mayhem and false imprisonment. See Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S.W. 6, 8 [1909], Duress exists when one's unlawful act induces another to make a contract or perform some act under circumstances which deprived him of the exercise of his free will. Minds cannot meet if one’s will is overborne. Newsom v. Medis, 205 Okl. 574, 239 P.2d 784 [1951]; Sinclair Refining Co. v. Roberts, 201 Okl. 358, 206 P.2d 193 [1949]; Samuels Shoe Co. v. Frensley, 151 Okl. 196, 3 P.2d 216 [1931]. The common-law definition of duress is codified in 15 O.S.1981 § 55.
In Newsom v. Medis, supra 239 P.2d at 786, we noted that the common-law rule of duress had been relaxed and that duress may consist of acts other than those proscribed by § 55 supra. Recently in Centric Corp. v. Morrison-Knudsen Co., Okl., 731 P.2d 411, 415-416 [1986], the court addressed this common-law concept in the context of economic duress/business compulsion. We held the doctrine available for invalidating settlement agreements and made its application turn on "whether the wrongful act is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator’s pressure.” (Emphasis added.) A major element of Centric’s duress analysis, based on an objective test (the reasonably prudent person standard), is that the wrongful act must have deprived the coerced party of its free will, leaving no adequate alternative available. The Restatement (Second) of Contracts § 175 comment c, uses a subjective standard which focuses on the party actually coerced. See Medina, Economic Duress as a Means of Avoiding Settlement Agreements in Oklahoma, 15 OCU L.Rev. 255 [1990],
Duress is also an important concept in criminal law. In Oklahoma "a person is entitled to the defense of duress if that person committed the [act(s) or omission(s) ] which constitute the crime because of a reasonable belief that he/she was in imminent danger of death or great bodily harm from another." Oklahoma Uniform Jury Instruction Cr. 717 [1981]. This instruction is based on 21 O.S.1981 §§ 152(7), 155, 156. In Tutly v. State, Okl.Cr., 730 P.2d 1206, 1210 [1986], the court held that while duress is not a defense to an intentional homicide, it is available as a defense to felony-murder. See also Note, Criminal law: Tully v. State of Oklahoma: Oklahoma Recognizes Duress as a Defense For Felony-Murder, 41 Okla.L.Rev. 515 (1988). Involuntary intoxication by duress of another is also deemed a complete defense to a criminal charge. Jones v. State, Okl.Cr., 648 P.2d 1251, 1258 [1982]; see abo in this connection City of Minneapolb v. Altimus, 306 Minn. 462, 238 N.W.2d 851, 855-856 [1976].
.Cessante ratione legb, cessat et ipsa lex (with the reason for the rule of law ceasing, the rule itself ceases to apply). Cleve v. Craven Chemical Co., 18 F.2d 711, 714 [4th Cir.1927]; Cook v. Citizens' Ins. Co. of Mbsouri, 105 W.Va. 375, 143 S.E. 113, 115 [1928]; Black’s Law Dictionary, p. 207 [5th Ed.1979].
. At common law one is negligent if he places a loaded firearm within the reach of young children or known mentally disabled adults. One in possession or control of a dangerous instrumentality readily accessible to children of tender age is required by law to exercise the highest degree of care to protect them from injury. Hart v. Lewis, 187 Okl. 394, 103 P.2d 65, 67 [1940]; see also Wroth v. McKinney, 373 P.2d 216, 219 [Kan.1962],
. At common law a child under the age of seven or, in the absence of evidence establishing capacity, one between the ages of seven and fourteen years, may not be held “accountable," or is conclusively presumed to lack the "discretion” or “capacity" for negligence; all three terms quoted are interchangeable. McClelland v. Post No. 1201, VFW, supra note 5 at 572 n. 8; City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724, 732 [1913]; Ramage Mining Co. v. Thomas, 172 Okl. 24, 44 P.2d 19, 23 [1935]; Keck v. Woodring, 201 Okl. 665, 208 P.2d 1133, 1135 [1949]; Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125, 127-128 [1945],
. See Thomas v. Holliday, Okl., 764 P.2d 165, 169 [1988]; Guinn v. Church of Christ of Collins-ville, Okl., 775 P.2d 766, 784, n. 69 [1989], The volenti doctrine reflects the Roman law’s notion of legal wrong or injuria. The principle embodied in the maxim is that a loss inflicted by one’s voluntary act or submission is not actionable. Dig. 47, 10, 1, 5 (Quia nulla injuria est, quae in volentem fiat)-, see Burdick, Principles of Roman Law, pg. 504 [1938]. The volenti doctrine is expressed as a common-law rule both in Cru-den v. Fentham, 2 Esp. 685, 170 Eng.Rep. 496 [1799] and Priestley v. Fowler, 3 M. & W. 1, 150 Eng.Reg. 1030, 1031-1033 [1837], For Oklahoma cases applying the doctrine, see Davis v. Whitsett, Okl., 435 P.2d 592, 599 [1967]; Briscoe v. Oklahoma Natural Gas Company, Okl., 509 P.2d 126, 129 [1973]; Centric Corp. v. Morrison-Knudsen, Co., supra note 9 at 419; for other jurisdictions discussing the doctrine, see Gray v. EJ. Longyear Company, 78 N.M. 161, 429 P.2d 359, 362 [1967]; Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 379 [Tex.1963]; Munson v. Bishop Clarkson Memorial Hospital, 186 Neb. 778, 186 N.W.2d 492, 494 [1971]; Walsh v. West Coast Coal Mines, 31 Wash.2d 396, 197 P.2d 233, 238-239 [1948]; Lyons v. Redding Construction Company, 83 Wash.2d 86, 515 P.2d 821, 822-826 [1973],
. A subjective standard is applied in evaluating a plaintiffs knowledge, comprehension and appreciation of the risk. Thomas v. Holliday, supra note 13 at 169.
. See Tome v. Berea Pewter Mug, Inc., supra note 7, 446 N.E.2d at 853; McNally v. Addis, 65 Misc.2d 204, 317 N.Y.S.2d 157, 180 [1970],
. See discussion in Cooper v. National Railroad Passenger Corporation, 119 Cal.Rptr. 541, 544, 45 Cal.App.3d 389 [1975] (disapproved in Ewing v. Cloverleaf, supra note 7, but see Sissle v. Stefenoni, supra note 7, which notes that the Ewing rule was later abrogated by statute); see also Wright v. Moffitt, supra note 7 at 555, n. 3; Franklin v. Salminen, 222 A.2d 261, 262 [Del. 1966],
. The blame for self-inflicted harm dealt by a competent adult cannot be apportioned either at common law or under our statutes. Knowing and voluntary ingestion of alcohol by a competent adult, uninduced by fraud of another, is a willed act. In Conner v. Burdine, 120 Okl. 20, 250 P. 109, 110 [1926], the court observes that "[d]runkenness is a wholly self-imposed disabili-ty_” See also White, supra note 4 at 61, where the author notes that "acts due to ... self-administered” alcoholic drinks are voluntary, citing Pearson’s Case, 168 Eng.Rep. 1108, 2 Lew.Cr.Cas. 144, 145 (1835). Pearson formulated the rule that "[v]oluntary drunkenness is no excuse for crime." Contributory negligence of the plaintiff does not avail at common law as a defense to a willed act. Conner v. Burdine, supra 250 P. at 110. Nor does our statutory comparative negligence scheme, 23 O.S.1981 §§ 13, 14, apply to a scenario in which two persons suing one another have each committed willed harm-dealing acts — i.e., the tavernkeeper’s sale to an intoxicated sui juris consumer and the adult sui juris consumer’s self-inflicted intoxication.
Damages that were wilfully inflicted cannot be apportioned at common law for contribution
among multiple harm-dealing co-actors who bear joint and several liability for the same tortious event. Merryweather v. Nixan, 101 Eng.Rep. 1337 [K.B.1799]; Knell v. Feltman, 174 F.2d 662 [U.S.Ct.App.D.C.1949]; Fidelity & Casualty Co. of New York v. Chapman, 167 Or. 661, 120 P.2d 223, 225 [1941]. In Chapman the court states that “ftjhe most plausible reason for such rule is that no man can make his own misconduct the ground for action in his own favor_” (Emphasis mine.)
.The terms of 37 O.S.Supp.1989 § 537(A)(2) of the Oklahoma Alcoholic Beverage Control Act provide:
"A. No person shall: * * *
2. Sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person_”
The penalty for violating the quoted section is prescribed by 37 O.S.Supp.1988 § 538(G), whose pertinent terms are:
"Any person who shall knowingly sell, furnish or give alcoholic beverage to an ... intoxicated person shall be guilty of a felony_”
The terms of 37 O.S.Supp. 1986 § 8 provide in pertinent part:
"... if any person shall be drunk or intoxicated in any public or private road, or in any passenger coach, streetcar, or any public place or building, or at any public gathering, from drinking or consuming such intoxicating liquor, ... he shall be guilty of a misdemean- or ...”
The guilty seller is a criminal offender under our law. See §§ 537(A)(2), 538(G), supra. The imbiber, except for the qualifications described in Part II of this opinion, is also an offender if he is inebriated in a public place (§ 8, supra) or is driving while intoxicated or impaired (§§ 47 O.S.Supp. 1988, 11-902, 11-904, 761, infra notes 23 and 24). Even an injured employee cannot get workers’ compensation for an on-the-job injury that results from voluntary intoxication. 85 O.S.Supp. 1985, § 11.
.See e.g. Cooper v. National Railroad Passenger Corporation, supra note 16; Kindt v. Kauff-man, 129 CaI.Rptr. 603, 610, 57 Cal.App.3d 845, 855 [1976], For Oklahoma case law applying the in pari delicto doctrine, see Bowlan v. Luns-ford, 176 Okl. 115, 54 P.2d 666, 668 [1936]. There, the court afforded no relief to a woman who sought damages from a man who allegedly impregnated her and then induced her to submit to an illegal abortion operation. Both parties were deemed in pari delicto, equally at fault, in having the abortion performed. For a discussion of the in pari delicto doctrine in contract law, see Neal v. Pennsylvania Life Insurance Company, Okl., 480 P.2d 923, 925 [1970]; Canning v. Bennett, 206 Okl. 675, 245 P.2d 1149, 1155-1156 [1952],
One could find many instances in support of the common law’s commitment to the free-will precept, not the least of which is the principle which generally bars one from profiting from his own wrong. Amicable Society v. Bolland, 4 Bligh [N.S.] 194, 5 Eng.Rep. 70 [1815]; Cleaver v. Mutual Fund Life Association, 1 Q.B. 147 [C.A.1892]; see also State Mut. Life Assur. Co. of Amer. v. Hampton, Okl., 696 P.2d 1027, 1034, 1035, n. 6 [1985] (Opala, J., concurring). The rule is believed to have its antecedents in ancient maxims of general English jurisprudence: No man shall take advantage of his own wrong and its Law-French and Latin counterparts — (1) Nul prendra advantage de son tort demesne (no one shall take advantage of his own wrong); (2) Nullus commodum capere potest de injuria sua propria (no one can obtain an advantage by his own wrong), De Zotell v. Mutual Life Ins. Co. of New York, 60 S.D. 532, 245 N.W. 58, 59 [1932]; (3) Jus ex injuria non oritur (a right does not rise out of a wrong); (4) Nemo allegans suam turpitudinem est audiendus (no one alleging his own turpitude is to be heard as a witness; this maxim applies to a party seeking to enforce a right founded on an illegal consideration), Davis v. Brown, 94 U.S. 423, 426, 24 L.Ed. 204,. 206 [1877]; (5) Nemo ex proprio dolo consequitur actionem (no one by his own fraud or wrong acquires a right of action), De Vail v. Strunk, 96 S.W.2d 245, 247 [Tex.Civ.App.1936]; (6) Ex dolo malo non oritur actio (a right of action cannot arise out of fraud), Martineau v. Gresser, 182 N.E.2d 48, 57 [Ohio Com.Pl 1962]); and (7) In pari delicto potior est conditio defendentis (in the case of equal fault, the defendant’s position is stronger), Kelly v. Courter, 1 Okl. 277, 30 P. 372, 373 [1892]; Norris v. York, 105 Kan. 448, 185 P. 43, 44 [1919]; Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 28 [1985]; McGhee's Adm’r v. Elcomb Coal Co., 288 Ky. 540, 156 S.W.2d 868, 869 [1941], Martineau, supra at 57).
. Justice Black noted in Powell v. State of Texas, 392 U.S. 514, 538, 88 S.Ct. 2145, 2157, 20 L.Ed.2d 1254 [1968] (Black, J., concurring), that public drunkenness has been a crime throughout our history and today is made an offense in every state. In Powell the Court refused to hold that responsibility for the crime of public drunkenness by alcoholism could be shifted to a disease process. Reasoning that chronic alcoholics could properly be required to control their actions to the extent necessary to avoid collision with the criminal law, the Court held that chronic alcoholism is no defense to any crime — even the crime of public intoxication. Justice Marshall, writing in a plurality opinion, states:
"Traditional common-law concepts of personal accountability and essential considerations of federalism lead us to disagree with appellant. We are unable to conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics in general ... suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts and thus cannot be deterred at all from public intoxication." Powell supra, 392 U.S. at 535, 88 S.Ct. at 2155.
. This scenario would treat the public to a spectacle much akin to that which unfolds when a convicted burglar recovers damages from the crime ⅛ victim for harm received while unlawfully on the victim’s premises.
. 37 O.S.Supp.1986 § 8, supra note 18.
. 47 O.S.Supp.1988 §§ 11-902, 11-904.
. 47 O.S.Supp.1987 § 761.
. The source of common law in Oklahoma is 12 O.S.1981 § 2, whose pertinent terms are:
"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma_” (Emphasis added.)
The common law provides a dynamic component for our legal system. Brigance, supra note 1 at 303; McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 [1980]; Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 204 [1983], In McCormack, supra at 740, the court said:
"The common law, followed in Oklahoma, refers not only to the ancient unwritten law of England, but also to that body of law created and preserved by decisions of courts. The common law is not static, but is a dynamic and growing thing and its rules arise from the application of reason to the changing conditions of society. Flexibility and capacity for growth and adaptation is its peculiar boast and excellence.” (Emphasis added.)
In Lewis v. Wolf, 122 Ariz. 567, 596 P.2d 705, 706 [Ct.App.1979] (quoting from William O. Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 [1982]), the court noted the following text which captures the essence of the dynamic nature of the common law:
"Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others 'long dead and unaware of the problems of the age in which he lives, do his thinking for him.’” (Emphasis added.)
. The pertinent terms of 21 O.S.1981 § 2 are:
"No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code_”
. See Sharpe v. State ex rel. Oklahoma Bar Association, Okl.Jud., 448 P.2d 301, 305 [1968] (there are no common-law crimes in Oklahoma); Hunter v. State, Okl.Cr., 375 P.2d 357, 358 (syllabus 4) [1962] (defining crimes is one of legislative power).
. The terms of 21 O.S.1981 § 152 provide in pertinent part:
“All persons are capable of committing crimes, except those belonging to the following classes:
1. Children under the age of seven (7) years.
2. Children over the age of seven (7) years, but under the age of fourteen (14) years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.
3. Idiots.
4. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.
******
7. Persons who committed the act, or make the omission charged, while under involuntary subjection to the power of superiors.” (Emphasis added.)
. The pertinent terms of Art. 28, § 5, Okl. Const., are:
"It shall be unlawful for any licensee to sell or furnish any alcoholic beverage to:
A person under twenty-one (21) years of age; or * * *
A person who is intoxicated. * * * ”
. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (the 4th Amendment’s protection from unreasonable searches and seizures).
. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (the 5th Amendment's due process clause and its anti-discriminatory component); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (the 8th Amendment’s right to be free from cruel and unusual punishment).
. See Bivens, supra note 30, and cases cited at supra note 31.
. 37 O.S.Supp.1959 §§ 502 et seq.
. 37 O.S.Supp.1959 § 538(G).
. See the provisions of § 538(G), supra note 18.
. 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). In Holbert v. Echeverría, Okl., 744 P.2d 960, 963 (1987), this court adopted the first three prongs of the Cort test for determining whether a private right of action may be implied in a regulatory statute.