How Omissions Aren't Special

Abstract

This short paper is a contribution to a special journal issue about Andrew Simester's book 'Fundamentals of Criminal Law'. It considers Simester's reappraised stance on omissions (or, in his analysis, 'not-doings') and the theoretical underpinnings he offers for the default rule that we are not prima facie criminally liable for our omissions as we are for our positive acts. I pay particular attention to the proposition that omissions are, all things being equal, less culpable than positive acts, and the idea that omissions liability is liberty-restricting in a way that positive act liability is not. Against the standard picture, I present a way of seeing omissions liability as being of a piece with liability for our harmful positive acts, and not subject to a different default rule.

Keywords: omissions; not-doings; culpability; duty of easy rescue; neutrality thesis