On the Moral Irrelevance of Bodily Movements

In the mess of confusions called Anglo-American criminal law, writers commonly refer to the problem of punishing omissions. There is something untoward, they say, about imposing criminal liability on the bystander who could intervene to save a drowning child and fails to do so. Punishing acts in violation of the law is all right, but there is some special difficulty, never completely understood and clarified, about imposing liability for omissions. The confusion about omissions has suffered unnecessary compounding by the organization of one of the leading casebooks on criminal law. Apparently not quite sure where to locate their cases on omissions, Sanford Kadish and Stephen Schulhofer stuck them in among opinions on issues raised by requiring a voluntary act. The specious inference underlying this organization goes something like this: (1) we all agree that criminal liability presupposes human action, and (2) the law has an aversion to punishing omissions, and (3) therefore the latter aversion must be connected to the former requirement