A plea for omissions

Criminal Justice Ethics

Volumn 22, Issue 2, 2003, Pages 21-37

  Mathisa, Stephen ^a  

^a WHEATON COLLEGE   (United States)

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EID: 79959760029     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2003.9992147     Document Type: Article

References (58)

1. By act requirement I do not mean the broader actus reus requirement, or the requirement that, as Moore puts it, no penal liability may attach to any individual unless that individual has done an act that instantiates a type of action prohibited by some statute in force at the time the act was done.
2. Michael S. Moore, Act & Crime: The Philosophy of Action and Its Implications for Criminal Law, Oxford: Clarendon Press, 1993, p. 189.
3. The act requirement, as I define it here, is, it seems to me, a sub-requirement of the broader actus reus requirement or a part of that broader requirement.
4. Id., pp. 44-45.
5. Id., pp. 33-34.
6. J. Austin, Lectures on Jurisprudence, 5th ed., London: John Murray, 1885;
7. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, reprint, ed. by J. H. Burns and H. L. A. Hart, London: Athlone Press, 1970;
8. John Salmond, Jurisprudence, 11th ed., London: Sweet & Maxwell, 1957;
9. P. J. Fitzgerald, Salmond on Jurisprudence, 12th ed., London: Sweet & Maxwell, 1966.
10. Moore, Act & Crime, p. 28, then discussed in terms of causation on p. 277.
11. Despite Moore's claims to the contrary, it does seem that individual failures to act do have some metaphysical status: we can identify and distinguish them from other events and nonevents and even understand them as effects of certain mental causes, such as thoughts, motivations, or negligence.
12. Moore, Act & Crime, ch. 3.
13. Michael Corrado, for one, wonders whether or not acts, as Moore defines them, can properly be called events, because acts are causings, and it is not clear that causings can themselves cause other things. If they can, Corrado thinks it is unclear whether or not they are the kinds of events that can cause the kinds of results prohibited by the criminal law.
14. Michael Corrado, "Is There an Act Requirement in the Criminal Law?" University of Pennsylvania Law Review, 142 (1994),p.l533,n.22.
15. Moore, Act & Crime, p. 59.
16. In fact, there seem to be many reasons for thinking that retributivism is untenable, or at least highly problematic.
17. Russ Shafer-Landau, "The Failure of Retributivism," Philosophical Studies 82 (1996), pp. 289-316.
18. George Fletcher, "On the Moral Irrelevance of Bodily Movements," University of Pennsylvania Law Review 142 (1994), pp. 1443-1453.
19. Moore argues that all actions entail causation of some state of affairs, and as a result, there are technically no conduct or non-result crimes.
20. Moore, Act & Crime, pp. 218-225.
21. Of course, since he does not believe that omissions can cause anything, it is not clear that Moore would make a similar argument with respect to cases of omission liability.
22. And this wrongdoing, it would seem, would be the end of the story for most retributivists, since retributivism, unlike other theories of punishment, does not weigh out the fact that the offender deserves punishment against anything else. I thank Harry Silverstein for pointing this out to me in commenting on an earlier version of this paper.
23. I am not sure how one might determine a perfect balance of injustice and liberty, but cashing out this balancing does seem to bring out a defect in Moore's argument. My sense is that if one must use Moore's balancing test at all, it would have to be used in much the way I have used it here: by appealing to our intuitions about the relative moral weights of injustices and liberties, but only when there is enough of an obvious imbalance that fine measurements need not be made (because Moore offers no mechanism for making such fine measurements and because the value of justice (as Moore understands it) and that of liberty appear to be fundamentally incommensurable).
24. Moore, Act & Crime, pp. 79-80.
25. Fletcher, "On the Moral Irrelevance of Bodily Movements."
26. Michael S. Moore, "More on Act & Crime," University of Pennsylvania Law Review, 142 (1994), pp. 1774-1175.
27. Moore, Act & Crime, pp. 117-123.
28. The fact that one could negligently omit to pay one's taxes by doing absolutely nothing at all over the course of the year, however improbable that may be, shows that interpreting tax evasion as having a hidden act requirement-as a prohibition on the positive action of earning income and failing to pay taxes on it-is not without its problems. Moore appears to interpret prohibitions against tax evasion in just this way.
29. Moore, Act & Crime, p. 32.
30. After all, one can earn income over the course of a year without having a volition cause a bodily movement that is in any way related to the earning of that income. Furthermore, one can earn income over the course of a year without doing anything whatsoever that would necessitate a volition.
31. Moore, Act & Crime, p. 7.
32. H. L. A. Hart, "Ascription of Responsibility and Rights," Proceedings of the Aristotelian Society, 49 (1949), pp. 171-94.
33. H. L. A. Hart, Punishment and Responsibility, Oxford: Oxford University Press, 1968, p. 90.
34. Id. at 106.
35. It is important to note, however, that Hart thought that omissions warranted a treatment different from, but closely related to, that of positive acts. In what follows, I will offer a treatment of omissions based on the one Hart suggests. Even though I agree with Hart that there are important theoretical differences between positive acts and omissions, I think that one can profitably categorize both as acts in a very broad sense-as expressions of agency that serve as fundamental component parts of the complex actions proscribed under the actus reus requirement. The application of the excluder definition of voluntariness that I suggest here lumps positive acts and omissions under this broader understanding of acts in just this way.
36. A. P. Simester, "Why Omissions Are Special," Legal Theory 1 (1995), p. 327.
37. The terms positive actions and omissions inserted here in brackets are the ones from my discussion that approximate most closely Simester's terms doings and not-doings".
38. Moore, Act & Crime, p. 59.
39. Moore, "Moore on Act & Crime," p. 1821.
40. Moore, Act & Crime, p. 267.
41. Id., pp. 267-268;
42. for Moore's attack on this understanding of causation, see pp. 267-274.
43. Perhaps Moore's strongest statement to this effect appears in his response to his critics in the University of Pennsylvania School of Law Symposium. There he responds to Fletcher by arguing that omissions should not incur liability under statutes that require the causing of some result. He states: Fletcher is right about our law; our law is simply wrong about the metaphysics, as is Fletcher. Anglo-American criminal law cannot make omissions be causes when they are not."
44. Moore, "Moore on Act & Crime," p. 1785.
45. Moore, Act & Crime, p. 34;
46. Moore, "More on Act & Crime," p. 1781.
47. Fletcher, "On the Moral Irrelevance of Bodily Movements" p. 1449.
48. Moore, "More on Act & Crime," p. 1795.
49. Were Moore to disagree with this claim, it would seem that the existence and legitimacy of such statutes would weaken considerably his overall claim that action is a central and unifying concept in the criminal law.
50. I take it that the seriousness of the injustice is not to be measured by the relative seriousness of the consequences that would ensue as a result of failure to uphold the duty, but rather by the amount and degree of responsibility one assumes in taking on the positive duty in question. Thus, failure to take adequate care of one's children is sufficiently serious not because harm to children is in itself any worse than harm to adults, but rather because children are especially vulnerable and dependent upon their parents.
51. Moore seems to grant something similar to, but short of, this claim when he claims that the duty to care for one's own children is as stringent a duty as just about any other negative duty.
52. Moore, Act & Crime, p. 189.
53. Fletcher, "On the Moral Irrelevance of Bodily Movements," p. 1444.
54. Corrado, "Is There an Act Requirement in the Criminal Law?" pp. 1556-61.
55. Id.,p.l560.
56. Here, I disagree with action theorists such as Jennifer Hornsby, who maintain that action theory is so underdeveloped that we should not be surprised that it does not do for us what we expect it to do.
57. Jennifer Hornsby, The Poverty of Action Theory, Philosophical Inquiry 21 (1999), p. 17.
58. I think instead that given its role in the criminal law, especially at the level of basic acts and voluntariness, action theory is no more developed than it need be-and it need not be terribly well-developed to address nearly all of our questions of voluntariness, provided the act requirement is understood as I have suggested here that it be understood, namely, as a sub-requirement of the broader actus reus requirement.