Between Killing and Letting Die in Criminal Jurisprudence

Abstract

The distinction between act and omission is deeply embedded in our legal thinking. Criminal jurisprudence distinguishes sharply between harmful actions and harmful omissions and, consequently, between killing and letting die. The distinction between act and omission is not made solely under criminal jurisprudence as it is rooted in the foundations of common morality, which emphasizes not only the results but also the conduct that produced those results. Nevertheless, since the beginning of the 1960s, there has been a significant movement to attack and criticize the moral distinction between killing and letting die. The primary question is whether there is, in fact, a moral distinction between causing harm and letting harm happen; more specifically, is there such a distinction between killing and letting die? Furthermore, if, in fact, such a moral distinction does exist, what is the rationale behind it? Obviously, this is a morally radical position that demands a significant change in perspective, moral and perhaps also legal, 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 at laying a logical foundation for the intuitive understanding that there is a legal distinction between act and omission, and specifically between killing and letting die; yet it seems that creating this clear distinction is easier said than done. This Article surveys and critiques several important theories for the distinction between act and omission. It goes on to introduce a new theory for this distinction; one based on the difference between the protected values that are foundational to the prohibitions against killing and letting die. This new perspective goes hand in hand with the Hobbesian and Rawlsian theories of social contract and with general theories of rule utilitarianism.