On a more philosophical level, further issues arise. The one is nicely encapsulated
by Wittgenstein’s observation: [...] “when ‘I raise my arm’, my arm goes up. And
the problem arises: what is left over if I subtract the fact that my arm goes up from
the fact that I raise my arm?” It seems that we can only perceive the will by
witnessing it in action. We thus end up in a definitional circle. We can only
objectively perceive action and subsequently explain the action as a manifestation
of the agent’s will. According to this theory, action is thus assessed in a vacuum,
disconnected from its social ramifications. This leads to questionable outcomes, as
nature determines not alone what an act is but also the social context in which it
occurs. Furthermore, it is arguably not the will that distinguishes mere movement
from action but rather social definition. Many systems have therefore started to
move away from the definition of action as willed bodily movements and nowadays
adhere to a social theory of action in which action is interpreted in the social context
in which it occurs. Meaning is not fixed; it is socially defined, so it is argued. The
movement of a hand can thus in one context be interpreted as a greeting and in
another as a threat.
7.5.2 Criminal Omissions: Liability in the Absence of Action
Be that as it may, the shortcomings of the “willed bodily movement definition”
become particularly apparent in the context of omission liability. While in
paradigmatic cases criminal conduct will undoubtedly involve bodily movements
such as shooting, stabbing, stealing, etc., there are certain situations where liability
may also arise out of a failure to act. Think, for instance, of a mother who omits to
feed her child, leading to his starvation. It seems clear that criminal censure would
be in order here, but adhering to a definition of action as willed bodily movement
would imply that no liability can arise in the case of inaction. Nevertheless,
virtually all criminal justice systems accept that certain failures to act can give
rise to criminal liability, albeit in different degrees.
An omission can loosely be defined as a failure to act in situations in which the
law would have required the perpetrator to act in a certain way. Liability for
omissions always presupposes that the perpetrator in question violated a duty of
care (towards the victim). Duties of care can arise in two different ways, in turn
giving rise to two separate forms of omission liability:
- offenses of failing to act,
- commission by omission.
7.5.2.1 Offenses of Failing to Act
The legislator is of course free to enshrine duties of care, requiring action, in
specific statutes. In the economic or the regulatory context, this happens frequently.
Statutes may, for instance, require economic actors to behave in a certain way to
assure the highest possible product safety or to protect the environment.
7 Criminal Law 133