Against the act/omission distinction

Abstract

The act/omission distinction is widely thought of as being of foundational importance in the substantive criminal law of liberal states. While acts can be proper targets for criminal offences, it is thought that we should only exceptionally criminalise omissions. I argue against this piece of criminal law orthodoxy by showing that if we are careful to fairly compare acts and omissions qua targets for criminalisation, then none of the standard arguments in favour of the act/omission distinction convince. In fact, on close examination, there is little reason to think that an omission cannot perform the role played by the conduct element in the structure of a criminal offence, just as well as an act can.