Two Concepts of Freedom in Criminal Jurisprudence

The goal of this essay is to identify and discuss two aspects of liberty by examining the distinction between act and omission in criminal jurisprudence. Criminal law makes a significant distinction between harmful actions and harmful omissions and, consequently, between killing and letting die. Any act that causes death is grounds for a homicide conviction -- subject, of course, to the existence of the other elements necessary for establishing criminal liability, such as causation and mens rea. However, liability for death by omission is subject to the additional identification of a duty to act. In other words, the defendant will be liable only if we can identify such a duty and show that the breach of this duty resulted in the victim’s death. This distinction between act and omission is rooted in an ethical perspective, in which we instinctively see a difference between actively behaving in a manner that causes harm and passively failing to prevent such harm. Nevertheless, since the beginning of the 1960s, there has been a significant movement to attack and criticize this moral distinction. This critique impacts upon the legal sphere as well, since if the moral distinction between act and omission is not obvious, the legal distinction cannot be clear-cut either. This lack of clarity has led to many attempts to lay a logical foundation for the intuitive understanding that there is indeed a legal distinction between act and omission.

This essay focuses on two principles that reflect different aspects of human liberty which are reflected in criminal jurisprudence. The first is liberal liberty, and the second which I propose, is personal autonomy. While both relate to liberty of the individual, they approach it from different angles, and this difference in perspective results in different definitions of act and omission in criminal jurisprudence.