Why Omissions Are Special

Legal Theory

Volumn 1, Issue 3, 1995, Pages 311-335

  Simester, A P ^a  

^a GONVILLE AND CAIUS COLLEGE   (United Kingdom)

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EID: 84974379410     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S135232520000029X     Document Type: Article

References (66)

1. Among others, glover, causing death and saving lives, chapter 7 (1977); Bennett, Morality and Consequences, in the tanner LECTURES ON HUMAN VALUES 47 (McMurrin etl., 1981); and bennett, the act itself (1995).
2. 2, Are Omissions Less Culpable, in essais for Patrick Atiyah 31 (Cane and Stapleton eds.,1991) (hereafter “Honore”) at 31.
3. FEINBERC, harm to others 154 (1984); Honore at 49.
4. See e.g, Ashworth, The Scope of Criminal Liability for Omissions, 105 law quarterly review 424 (1989).
5. MOORE, ACT and crime 23 (1993); Honore at 37.
6. At 72; Chapter 7, VIII (1781).
7. DARCY, HUMAN ACTS 41 (1963). D’Ancy however accepts Bentham'sviewin 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. Supranote 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 Menr on Act and Crime, 142 U. penn. L. Rev. 1749.1775-1776 (1994).
11. Supranote 5, at 29–31. See also id. at 1777–1778.
12. Negative Acts, in essays on davidson: actions and events 93 (Vermazen and Iintikka eds., 1985) at 95.
13. Supra note 5, at 86–87. Compare Moore's definition of omissions, quoted above in the text.
14. Supra note 5, at 267ff.
15. HART AND HONORE, causation in the law 170–172 (2nd ed., 1985); G. williams, textbook of criminal law 388–389 (2nd ed., 1983).
16. The example is Vermazen's, supranote 12, at 100. Cf Fletcher, On the Moral Irrelevance ofBodily Movements, 142 u. penn. L. rev. 1443,1448 (1994), citing hart and honor?, id. at 38.
17. (1902) 19.T.L.R.37.
18. Cf. hart and honore (supra note 16, at 31): “in spite of differences between these cases and the simple paradigms, the very real analogies are enough tojustify the extension of causal language to them.” Feinberg's discussion {supra note 3, at 172ff) is also instructive.
19. Cf. Honore, at 39; hart and honore, supranote 16, at 37.
20. Rv. Stone and Dobinson [1977] Q.B.354.
21. Something Honore 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 Consequencesfin morautyand 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 it were, an intrusion into the pattern of expectations.”
22. Honore, at 41–42.
23. Id. at 39.
24. Id.at 41.
25. Bennett, supra note 1, at 55ff; bennett, supra note 1. chapter 6.
26. Honore, at 40. It is not quite a paraphrase; Honore remarks (in his footnote 14) that he has rendered Bennett's analysis “in what seems a more plausible form.”
27. Bennett, supranote l, at66—69; bennett, supra note 1, at 96-100, 112-114.
28. Honore, at 40—41.
29. norm and action 39–42 (1963).
30. Cf. feinberg, supra note 3, at 159–162.
31. Honore remarks, 1 believe correctly, that all omissions are not-doings of some thing, but not all not-doings are omissions (at 36).
32. For instance (Honore, at 32), that to “require a positive act normally imposes a greater cost in time, effort, skill, and money than a prohibition with similar results,”
33. Id.at 51.
34. Assuming, as does Honore (at 50), that “people and objects on the whole continue as they are unless something intervenes to change them.”
35. 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 former are more threatening defutura 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.
36. Bennett, supranote 1, at 66. bennett, supra note 1, at96ff.
37. Cf. hart and Honors, supra note 16, at 59: “the careless friend'tnight 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.’
38. Honore, at 51.
39. Cf. Hart and Honore'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.”
40. As Glanville Williams points out in Criminal Omissions—The Conventional View, 107 law quarterly review 86,89 (1991).
41. Cf Fletcher, supra note 17, at 1451. This point does not apply to those whose omissions occur while they are engaged in specialist activities, including driving or carrying on a business. Such persons have not refrained from entering the law's purview.
42. Drawing on Parfit's distinction between action- and outcome-reasons: Is Common Sense Morality Self Defeating?, 70 journal of PHILOSPHY 533 (1979); see also his reasons and persons (1984).
43. Cf Bennett, supra note 1, at 78-80; glover, supra note 1, at 105; also raz, the Morality of Freedom 280–281 (1986).
44. Honore, at 49.
45. Per Honore (at 50), “[o] nly if one looks at items of conduct atomistically rather than in their wider setting… do acts and omissions appear equivalent.”
46. 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 JJ. 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).
47. Cf. Berry v. Borough of Sugar Notch, 43 Atl. 240 (1899).
48. Honore, at 50.
49. In this I concur with Hart and Honore (supra note 16, at 128): “suppose, again, that a house can be built and profitably sold only if Xdelivers 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 not a 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.”
50. Thus, hart and honors (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.
51. Cf. Casey, supra note 22, at 1721T: We may misleadingly say of both Jeremy and Stephen that “he so conducted himself with the consequence that John was stabbed.” See aba B. Williams, A Critique of Utilitarianism, in smart and williams, utilitarianism: for and AGAINST 75 at 108 (1973).
52. Or a person w ho fails to repair a retaining wall himself Hood 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 71–73 (1991)); that argument could be met by having duplicate offenses in each instance of doing the actus reus and of permitting its occurrence.
53. To borrow the metaphor deployed (in a different context) by Dworkin: taking rights seriously ix (1977).
54. Malm, Killing, Letting Die, and Simple Conflicts, 18 philosophy and public affairs 238, 245-250(1989).
55. Malm, id. at 246-247; Honore at 52. The characters names are supplied by I Honore.
56. Miller[1983] 2 A.C. 161.
57. See the text at note 15 supra.
58. Something warned against by Bernard Williams (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 his 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.”
59. anarchy, state and utopia 50 (1974).
60. Cf. Ashworth, supra note 4, at 428-429; Kamm, Action, Omission, and the Stringency of Duties, 142 U. penn. L. Rev. 1493,1496,1511 (1994).
61. Raz, supra note 47, at 376.
62. Id. at 320.
63. Id at 382.
64. 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.
65. Id. at 425. The objection is made all the more cogent when buttressed by Feinbcrg's claim supranote 3, at 163–164) that, although the degree of 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.
66. criminal law 45 (5th ed., 1983).