Search

Practices of criminalization, reflected in the surprising absence of convictions across a range of common law jurisdictions, imply that the threshold for liability in murder may differ depending upon whether the conduct element is an omission or an act. These practices hint at possible doctrinal ramifications of imposing liability for omissions. These ramifications, I shall argue, include the desirability both of a looser causal nexus and a stricter fault element. The looser causal nexus is justified so long as it remains fair to attribute the death of the victim to the wrongful conduct of the defendant, and I shall argue that it will be fair if there is a correspondingly stricter fault requirement, namely (direct) intention. By virtue of such fault element, doctrine is also able to sidestep certain issues of context and motivation that are of key significance for an appropriate model of responsibility where death is caused by omission. [ABSTRACT FROM AUTHOR]

This contribution stems from a workshop on foundational issues in the philosophy of criminal law. This may raise expectations for a discussion of the core business of what is called substantive criminal law: the structure of crime, the concept of intention, complicity and participation, attempt and preparation; acts and omissions; or causation. However, most punitive sanctions--especially fines--concern regulatory offenses that are structured to a much lesser extent by such moral notions as culpability and wrongfulness, while the applicable burden of proof does not even come close to the presumption of innocence in the case of criminal offenses. This raises the questions of how the difference between regulatory and criminal offenses is to be understood and of the extent to which regulatory offenses (should)fall within the scope of the criminal law. The answers to these questions will be derived from an exploration of the historicity of crimes and regulatory offenses, and their relationship to the (modern) state. I will start off with tracing the emergence of contraventions and crimina in the course of the early and late Middle Ages and the subsequent advent of a domain of "police" at the threshold of modernity next to the already existing domain of "justice. "After this the strict separation of the domains of "police" (covering Polizeidelikten) and "justice" (covering Verbrechen and Vergehen) in nineteenth-century Germany will be discussed as well as the relationship of both domains to different conception of the Rechtsstaat and the État de droit. The math argument will be that understanding the difference between criminal and regulatory offenses in essentialist terms, such as the medieval malum in se and malum prohibitum, [does not make sense. Building on a nonessentialist difference I will suggest that differential procedural constraints should be based on pragmatic arguments, which, however, do not equate with utilitarian arguments. In line with philosophical pragmatism the separation of means anal end that characterizes utilitarianism is rejected and replaced by a pragmatic approach grounded in the normative position of a constitutional democracy in the sense of an État de droit or a substantive conception of the Rechtsstaat. This implies that the aim of punishing regulatory offenses is to sustain an effective domain of police under the rule of law, meaning that the punishment of regulatory offenses will have to be regulated by the same principles that inform the "fair trial. " This will allow the state to impose punitive sanctions, to prevent and retaliate violations of specific legal norms, while enabling citizens to contest the incriminated violation as well as the lawfulness of the violated legal rule. [ABSTRACT FROM AUTHOR]

I challenge in this paper a popular view on the causal requirement of criminal liability. The view, which I call physicalism about the causal relation (or physicalism, for short), puts together the claim that the causal requirement demands that the agent causes a crime result (e.g., the death of a person) for her to be paradigmatically responsible for that result, with a conception of causation according to which a causal relation is such that it can only hold between actual events, and never between omissions (or other absences) and events. Physicalism's apparent merit is that it yields an account of the differential treatment actions and omissions receive in criminal law. However, I argue, it does so at the expense of rendering puzzling other uncontroversial features of the criminal law. Moreover, I contend that physicalism is groundless; it picks out a property that just can't play the role that the causal requirement is meant to play. I sketch, finally, an alternative construction of the causal requirement, one that doesn't fall prey of the objections I raised against physicalism. [ABSTRACT FROM AUTHOR]

The prevailing theory in continental European and Latin American legal literature distinguishes two kinds of punishable omissions: the simple (or "authentic," "genuine") omission and the "inauthentic" or "pseudo" omission (also known as commission by omission, comisi6n pot omisi6n). In this article a tripartite classification of crimes of omission is proposed. On the one hand, there are crimes of omission that are identical to cases of active commission (for which we should reserve the term of commission by omission). These are based on the idea of responsibility for one's own organization. On the other hand, there are simple crimes of omission in which we punish a breach of a duty of minimum solidarity toward our fellow citizens. Somewhere between these two categories lies a third type of aggravated crimes of omission that are based on liability for a breach of a duty of qualified solidarity (derived 3qom specific institutions or relationships between people). Moreover, this threefold classification is based on the idea that differences between such omissions are a matter of degree. [ABSTRACT FROM AUTHOR]

Omissions in criminal law have often been a cause of perplexity among legal scholars in Europe and America. This article analyzes some of the main theoretical approaches to the question of commission by commission, criticizing the formalistic perspective of the "special legal duty" theory and proposing a normative approach based on the idea of the "sphere of autonomy." [ABSTRACT FROM AUTHOR]