In the land of omissions: An opinionated guide

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Liability for omissions has long been a controversial subject in Anglo-American legal theory. The legal and philosophical literature on omissions is so extensive, and frequently so dense, that yet another article on the topic seems painfully otiose. Nonetheless, the debate as to the nature of omissive conduct and the propriety of liability for omissions continues with little movement towards a generally satisfactory resolution or, apparently, improved understanding among theoretical adversaries.(2) One justification for a new foray into this territory is the possibility of clarifying some of the issues and lines of argument in which the theoretical discourse is presently mired. What follows, here, is an admittedly idiosyncratic tour of selected matters that contribute to this controversy, offered to help others traverse what I take to be the more boggy areas. Among these are: the relation of various levels of discourse, the ontological status of omissions as a form of conduct, the function of the requirement of actus reus for criminal liability, and certain worries about controlling liability for omissions. I Setting Out (a) Getting the Lay of the Land Perhaps the greatest impediment to fruitful movement on the 'problem of omissions' is the very number of issues and levels of investigation falling under that rubric. Issues of ontological standing, moral evaluation, social theory, political agendae, and linguistic familiarity are all pertinent and often overlap in the arguments of concerned theorists. Therefore, it is useful to begin one's journey with a sense of destination and of which matters provide direct routes, which side trips. Let us assume that metaphysics and ethics are different subjects, however salient one may be for the other. Then, an initial map of the literature on omissions reveals two primary categories of analysis and four generic positions: Metaphysical Analyses i) Affirmative Positions: Omissions are and may function causally; they are a mode/type of human conduct; and so forth. ii) Dismissive Positions: Omissions are real [not events] and/or have no causal role; they are the absence of conduct; and so forth. Normative Analyses i) Affirmative Positions: Omissions are subject to moral appraisal; there are important positive duties, some of which are legitimate legal duties [such as duties to rescue]; there is no principled basis on which to limit liability for omissions, per se; and so forth. ii) Dismissive Positions: Omissions are/usually are of less moral significance than commissions; if there are positive duties, they are of less weight than negative duties; use of liability for omissions ought to be highly circumscribed; and so forth. In truth, many theorists move easily from one level of analysis to the other, and it is common for proponentS of a position on, for example, the comparative stringency of positive and negative duties to select a metaphysical view primarily because it serves the favored socio-ethical position. (b) Designing the Itinerary However, if metaphysical and evaluative claims belong to divergent areas of discourse, one ought not board the bus for one type of destination as a direct means of arriving at the other. This admonishment does not rest on any belief that analyses of human agency are voyages of pure discovery--objectivist wanderings in a realm of brute reality untainted by human itineraries or the formative influence of human purposes. Our conceptions of agency and responsibility depend, in part, on how we see ourselves in the world, and that turns, in part, on the kind of world we wish to inhabit. Any theory of responsibility is, therefore, an interpretive construct (a truth which helps to account for the plurality of plausible conceptions of agency even within a single cultural domain).(3) Nonetheless, interpretation and refinement are not equivalent to adoption of a view for the sake of supporting a position of another character. …