Omission and responsibility in legal theory

Legal Theory

Volumn 9, Issue 3, 2003, Pages 221-240

  Smith, Patricia ^a  

^a CITY UNIVERSITY OF NEW YORK   (United States)

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[No Author keywords available]

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EID: 34547132018     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325203000107     Document Type: Article

References (28)

1. See, e.g., J. Bennett, Whatever the Consequences Analysis, 26 (1966); P. Unger, LIVING HIGH AND LETTING DIE (1996) on the moral relevance of the AOD. See, e.g., J. Bennett, THE ACT ITSELF (1995); B. Vermazen, Negative Acts, in ESSAYS ON DAVIDSON: ACTIONS AND EVENTS 95 (Vermazen and Hintikka, eds., 1985) on the concept of omission.
2. See, e.g., A.M. Honore, Are Omissions Less Culpable? in ESSAYS FOR PATRICK ATIYAH 31 (Cane and Stapleton, eds., 1991); M. Moore, ACT AND CRIME 23 (1993).
3. As noted by Honore, Are Omissions Less Culpable? note 2, at 31.
4. Honore, As noted by Honore note 2, at 41.
5. Honore counts as primary interventions both human intervention and abnormal conditions.
6. A.P. Simester, Why Omissions Are Special, 1 LEGAL THEORY 311-335 (1995), at 311.
7. This approach is suggested by Simester's critique, id. at 312-317.
8. G.H. von Wright, NORM AND ACTION (1963) at 39-46; cited in Simester, This approach is suggested by Simester's critique note 9, at 319.
9. Simester, NORM AND ACTION note 9 at 316; see also P. Smith, Criminal Omission and Legal Liability, 5:1 BUFFALO CRIM. L. REV. 69-102 (2002).
10. Honore, Criminal Omission and Legal Liability note 2, at 33, although he qualifies this claim as “usually” equal.
11. Simester, although he qualifies this claim as “usually” equal. note 9, at 312.
12. For elaboration, see Section VII.
13. The motivation for theories that postulate the equivalence of harming and not helping is often to note the terrible conditions of poverty, starvation, and extreme hardship that are allowed to persist when (it is suggested) they could be addressed if obligations were acknowledged to address them. But on my view these are social problems that should generate social duties, not individual ones in the first instance. See P. Smith, LIBERALISM AND AFFIRMATIVE OBLIGATION (1998).
14. Joel Feinberg and others have discussed the idea of making worse versus not making better in terms of comparison to a “baseline” of well-being that crosses (or diminishes) the do/not do distinction. This is a controversial view but it is not question-begging. See, e.g., J. Feinberg, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS (1984), ch. 4.
15. See, e.g., J. Glover, CAUSING DEATH AND SAVING LIVES (1977); P. Unger, LIVING HIGH AND LETTING DIE (1996); J. Bennett, THE ACT ITSELF (1995).
16. Simester, CAUSING DEATH AND SAVING LIVES note 9, at 312. Honore, CAUSING DEATH AND SAVING LIVES note 2, briefly notes the same point at 31.
17. Simester, CAUSING DEATH AND SAVING LIVES note 11, at 329-30. Simester never defines “authorship” I hope the text I have quoted or paraphrased here makes its meaning fairly clear in terms of his usage.
18. There is also a conceptual distinction between positive and negative acts. For elaboration and analysis, see P. Smith, Simester never defines “authorship” note 13; P. Smith, Omission, Duty and Bad Samaritans, in BLACKWELL COMPANION TO APPLIED ETHICS (Wellman and Frey eds., 2002); Smith, OMISSION LAW AND RESPONSIBILITY: A CONCEPTUAL ANALYSIS (forthcoming).
19. Id. at 329, citing Hart and Honore, CAUSATION IN THE LAW 128 (2nd ed., 1985).
20. Simester, CAUSATION IN THE LAW note 9.
21. See Bennett, CAUSATION IN THE LAW note 23, cited and discussed in Simester, CAUSATION IN THE LAW note 9, at 322-324.
22. See Smith, CAUSATION IN THE LAW note 23 note 13; Smith, Bad Samaritans, CAUSATION IN THE LAW note 23 note 26.
23. G. Fletcher, On the Moral Irrelevance of Bodily Movements, 142 U. PEN. L.R. 1443 (1994).
24. Simester, On the Moral Irrelevance of Bodily Movements note 9, at 329.
25. As noted by Feinberg, Id. note 21, we do not ordinarily use the language of causation to describe the consequences of omission, but it does not follow that an omission is not a cause.
26. See also Smith, we do not ordinarily use the language of causation to describe the consequences of omission, but it does not follow that an omission is not a cause. note 13; J. Mackie, THE CEMENT OF THE UNIVERSE (1980).
27. Id. at 331, citing P. Foot, The Problem of Abortion and the Doctrine of the Double Effect, OXFORD REV. 5 (1967); Thomson, The Trolley Problem, in J. Thomson, RIGHTS, RESTITUTION AND RISK (1986).
28. Simester, RIGHTS, RESTITUTION AND RISK note 9, at 332.