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Why Omissions are Special

  • A. P. Simester (a1)

The criminal law presently distinguishes between actions and omissions, and only rarely proscribes failures to avert consequences that it would be an offense to bring about. Why? In recent years it has been persuasively argued by both Glover and Bennett that, celeris paribus, omissions to prevent a harm are just as culpable as are actions which bring that harm about. On the other hand, and acknowledging that hitherto “lawyers have not been very successful in finding a rationale for it,” Tony Honoré has sought to defend the law's differential treatment. He proposes a “distinct-duties theory” that in addition to the general duties we owe to everyone (e.g., not to inflict harm), we also owe distinct duties to a more limited collection of people and associations, specified by features of our relationship with them (we owe, for instance, duties as parents to our own children). Where a distinct duty holds, breach by omission may well be no better than breach by positive action. But absent a distinct duty, omissions, per Honoré, are less culpable. They are mere failures to intervene and improve or rectify things, whereas actions are positive interventions which make things worse. And, thus, the law has good reason to differentiate between them.

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Fletcher , On the Moral Irrelevance of Bodily Movements, 142 U. Penn. L. Rev. 1443, 1448 (1994)

Kamm , Action, Omission, and the Stringency of Duties, 142 U. Penn. L. Rev. 1493, 1496, 1511 (1994).

Freeman , Criminal Liability and the Duty to Aid the Distressed, 142 U. Penn. L. Rev. 1455, 1478ff (1994).

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Legal Theory
  • ISSN: 1352-3252
  • EISSN: 1469-8048
  • URL: /core/journals/legal-theory
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