Anglo-American Perspectives on Omissions Liability: Theoretical and Substantive Contours of Criminalisation and Optimal Reform Pathways

Alan Reed*, Muhammad Sarahne*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

This article examines the omission–commission binary divide
that is of extant significance within Anglo-American criminal law theory and
doctrine. In English law, it has been encaptured in a seminal academic debate
between Williams and Ashworth, who have propagated opposite stances with
respect to criminal liability for omission. American law has also witnessed
significant scholarly discourse in this arena, especially on the propriety of the
legal duty requirement. Leavens has proposed we abolish this requirement
and the act/omission distinction altogether, examining instead the causal
link between the offender’s course of conduct and the prescribed harm(s).
Normative and philosophical debates within American and English law and
particularised concerns applicable to substantive precepts in each jurisdiction
are evaluated. An array of issues are deconstructed, notably the legal duty
requirement and its scope, the offences that may be committed by omission
and specific concerns that Anglo-American law fails to meet fair warning and
legality standardisations. There is a novel and distinctive comparative analysis
of alternative perspectives on criminalisation, and creation of a dangerous
situation and legal duty to rescue principles are analysed via dépecage (issue
splitting) analysis across a spectrum of five bespoke compartmentalisations.
Good Samaritan laws as part of optimal reform proposals on failure to rescue
and failure to report harm(s) are proposed.
Original languageEnglish
Pages (from-to)205-248
JournalJournal of International and Comparative Law
Volume8
Issue number1
Publication statusPublished - Jun 2021

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