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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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1. Among others, Glover, Death Causing and Lives Saving, chapter 7 (1977); Bennett , Morality and Consequences, in The Tanner Lectures on Human Values 47 (McMurrin ed., 1981); and Bennett , The Act Itself (1995).

2. Are Omissions Less Culpable, in Essays for Patrick Atiyah 31 (Cane and Stapleton eds., 1991) (hereafter “Honoré”) at 31.

3. Feinberg , Harm to Others 154 (1984); Honoré at 49.

4. See e.g., Ashworth , The Scope of Criminal Liability for Omissions, 105Law Quarterly Review 424 (1989).

5. Moore , Act and Crime 23 (1993); Honoré at 37.

6. At 72; Chapter 7, § VIII(1781).

7. D'arcy , Human Acts 41 (1963). D'Arcy however accepts Bentham's view in part when he concludes that “Bentham's criterion is no doubt a negative necessary condition for an omission, but it is not a sufficient one.”

8. Supra note 5, at 31.

9. Id. at 28. For the point that Moore uses the term “omissions” to embrace not-doings generally, see his footnote 31.

10. In More on Act and Crime, 142 U. Penn. L. Rev. 1749, 1775–1776 (1994).

11. Supra note5, at 29–31. See also id. at 1777–1778.

12. Negative Acts, in Essays on Davidson: Actions and Events 93 (Vermazen and Hintikka eds., 1985) at 95.

13. Supra note 5, at 86–87. Compare Moore's definition of omissions, quoted above in the text.

14. Or, in Vermazen's case, might Andy's twisting his buttons be a sufficient condition of his not eating the hors d'oeuvres.

15. Supra note 5, at 267 ff.

16. Hart and Honoré , Causation in the Law 170172 (2nd ed., 1985); Williams G.. Text book of Criminal Law 388389 (2nd ed., 1983).

17. The example is Vermazen 's, supra note 12, at 100.Cf. Fletcher , On the Moral Irrelevance of Bodily Movements, 142 U. Penn. L. Rev. 1443, 1448 (1994), citing Hart and Honoré, id. at 38.

18. (1902) 19. T.L.R. 37.

19. Cf. Hart and Honoré (supra note 16, at 31): “in spite of differences between these cases and the simple paradigms, the very real analogies are enough to justify the extension of causal language to them.” Feinberg's discussion (supra note 3, at 172ff) is also instructive.

20. Cf. Honoré , at 39; Hart and Honoré , supra note 16, at 37.

21. Stone R v. and Dobinson [1977] Q.B. 354.

22. Something Honoré makes clear (at 41): “if… the break in routine violates a norm…, it is a form of not-doing which amounts to an omission and is a potential ground of responsibility.” Cf. Casey, Actions and Consequences, in Morality and Moral Reasoning 155 (Casey ed., 1971) at 180: “The introduction of a statement which claims to give the cause of some event presupposes a pattern of normal expectations, such that what will count as the cause of the event is, as itwere, an intrusion into the pattern of expectations.”

23. Honoré , at 4142.

24. Ib. at 39.

25. Ib. at 41.

26. Bennett , supra note 1, at 55ff; Bennett , supra note 1, chapter 6.

27. Honoré , at 40. It is not quite a paraphrase; Honoré remarks (in his footnote 14) that he has rendered Bennett's analysis “in what seems a more plausible form.”

28. Id.

29. Bennett , supra note 1, at 6669; Bennett , supra note 1. at 96100, 112114.

30. Honoré , at 40–11.

31. Norm and Action 39–12 (1963).

32. Cf. Feinberg , supra note 3, at 159162.

33. Honoré remarks, I believe correctly, that all omissions are not-doings of something, but not all not-doings are omissions (at 36).

34. For instance (Honoré , at 32), that to “require a positive act normally imposesa greater cost in time, effort, skill, and money than a prohibition with similar results.”

35. Id. at 51.

36. Id.

37. Assuming, as does Honoré (at 50), that “people and objects on the whole continue as they are unless something intervenes to change them.”

38. Though it surely is: We feel very differently about killers than about non-savers. There may be more than one intuition at work here. For one thing, the formerare more threatening de futura. But in addition (and an aspect of the ceteris paribus proviso which I am not going to address here), omissions are often incidental to the defendant's practical deliberations—they typically disclose a different and lesser fault, of limited imagination or empathy rather than hostility. Cf. Glover , supra note 1, at 111.

39. As has been pointed out earlier, one might even intervene to resist one's body's being moved.

40. Bennett , supra note 1, at 66.See Bennett , supra note 1, at 96ff.

41. Cf. Hart and Honoré , supra note 16, at 59: “the careless friend might be held morally and legally bound to compensate the owner for the loss just as for loss ‘directly’ caused, for example, by carelessly starting a fire.”

42. Honoré , at 51.

43. Cf. Hart and Honoré's vision of the law (supra note 16, at lxxx) as “a system designed to minimize harm by an appeal to individuals to control their conduct.”

44. As Glanville Williams points out in Criminal Omissions—The Conventional View, 107 Law Quarterly Review 86, 89 (1991).

45. Cf. Fletcher , supra note 17, at 1451. This point does not apply to those whose omissions occur while they arc engaged in specialist activities, including driving or carrying on a business. Such persons have not refrained from entering the law's purview.

46. Drawing on Parfit's distinction between action- and outcome-reasons: Is Common Sense Morality Self Defeating?, 70 Journal of Philosophy 533 (1979); see also his Reasons and Persons (1984).

47. Cf. Bennett , supra note 1, at 7880; Glover , supra note 1, at 105; also, The Morality of Freedom 280–281 (1986).

48. Honoré , at 49.

49. Per Honoré (at 50), “[o]nly if one looks at items of conduct atomistically rather than in their wider setting … do acts and omissions appear equivalent.”

50. In Thomson's own examples, five people are killed if I do not throw the switch: Killing, Letting Die, and the Trolley Problem at 78; The Trolley Problem at 94; in J.J. Thomson-, Rights, Restitution and Risk: Essays in Moral Theory (1986). Although the case is commonly described as Thomson's, she in fact derives it from Foot: The Problem of Abortion and the Doctrine of the Double Effect, Oxford Review 5 (1967).

51. Cf. Berry v. Borough of Sugar Notch, 43 Atl. 240 (1899).

52. Honoré , at 50.

53. In this I concur with Hart and Honoré (supra note 16, at 128): “suppose, again, that a house can be built and profitably sold only if X delivers bricks and Y mortar, If both Xand Y default in delivery so that the projected house cannot be built and sold each can argue, again, that his default was nota sine qua non of the loss of profit on the sale of the house, since the default of the other was sufficient to preclude it Despite this, lawyers and ordinary people would agree in saying … that the omission of each is causally relevant to the ensuing harm and that each could in a proper case be held responsible for it.”

54. Thus, Hart and Honoré (id. at lxxx–xi): “The idea that individuals are primarily responsible for the harm which their actions are sufficient to produce without the intervention of others or of extraordinary natural events is important … to … the individual's sense of himself as a separate person whose character is manifested in such actions … [R]espect for ourselves and others as distinct persons would be much weakened, if not dissolved, if we could not think of ourselves as the separate authors of the changes we make in the world.”

55. Cf. Casey , supra note 22, at 172ff: We may misleadingly say of both Jeremy and Stephen that “he so conducted himself with the consequence that John was stabbed.” See also Williams B., A Critique of Utilitarianism, in Smart and Williams , Utilitarianism: For and Against 75 at 108 (1973).

56. Or a person who fails to repair a retaining wall himself flood the land beyond: cf. East Suffolk Catchment Board v. Kent [1941] A.C. 74. Note that this proposition is advanced solely as a matter of analytical groundwork. In particular, I am not making an argument here about the fair labelling of defendants (regarding which, see Ashworth , Principles of Criminal Law 7173 (1991)); that argument could be met by having duplicate offenses in each instance of doing the actus reus and of permitting its occurrence.

57. To borrow the metaphor deployed (in a different context) by Dworkin: Taking Rights Seriously ix (1977).

58. Malm , Killing, Letting Die, and Simple Conflicts, 18 Philosophy and Public Affairs 238, 245250 (1989).

59. Malm, id. at 246–2–17; Honoré , at 52. The characters' names are supplied by Honoré.

60. Honoré , at 4247.See also the first four categories discussed by Ashworth , supra note 4, at 439447. The same point helps to elucidate Corrado's motionless-driver examples: Is There an Act Requirement in the Criminal Law, 142 U. Penn. L. Rev. 1529, 15381541 (1994); discussed by Moore , supra note 10, at 17781781. The appeal of these cases seems to be that, whether in virtue of having antecedently created a risk or in virtue of being in control of the car, the motorist stands in some special relationship to the harm inflicted.

61. Miller [1983] 2 A.C. 161.

62. See the text at note 15 supra.

63. Something warned against by Wlliams Bernard (supra note 55, at 116), in the context of utilitarianism: Its edict “is to make [the individual] into a channel between the input of everyone's projects, including his own, and an output of optimific decision; but this is to neglect the extent to which Au actions and his decisions have to be seen as the actions and decisions which flow from the projects and attitudes with which he is most closely identified. It is thus, in the most literal sense, an attack on his integrity.”

64. Anarchy , State and Utopia 50 (1974).

65. Cf. Ashworth , supra note 4, at 428429; Kamm , Action, Omission, and the Stringency of Duties, 142 U. Penn. L. Rev. 1493, 1496, 1511 (1994).

66. Raz , supra note 47, at 376.

67. Id. at 320.

68. Id. at 382.

69. Cf. Raz, id. at 408, 419; Freeman , Criminal Liability and the Duty to Aid the Distressed, 142 U. Penn. L. Rev. 1455, 1478ff (1994). Such considerations might be sufficient, moreover, to warrant the existence of a limited legal duty to rescue. My argument here is directed more generally at why, save exceptionally, the law should be more averse to prohibiting not-doings than it is to proscribing doings.

70. Id. at 425. The objection is made all the more cogent when buttressed by Feinberg 's claim (supra note 3, at 163164) that, although Ihe degree or restriction of liberty imposed by a criminal law provision depends upon the impact of that provision on one's options, it does not depend on whether the duty imposed is positive or negative.

71. Criminal Law 45 (5th ed., 1983).

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