Trecho ilustrativo do livro de George Fletcher sobre a teoria do domínio do fato. Na verdade, seguindo a lingua alemã, seria mais certo traduzir por "doutrina da soberania do ato"(Tathersschaftlehre). Cf. Rethinking Criminal Law.
An
intermediate theory, which has gained considerable support in the literature,
takes the criterion of perpetration to be hegemony and control over execution
of the criminal act. An accessory is defined negatively as someone who does not
have the requisite hegemony and control. This tehory, know as the
Tathersschaftlehre, dovetails well with the argument made in the beginning
ofthis chapter that accessorial liability is based on problematic causal link
between acting and the perpetrator’s consummation of the offense. The causal
link is problematic precisaly because the perpetrator, and not the accessory,
maintains control over which he does not have control.
There is a
considerable evidence that this German theory of “hegemony-over-the-act” lies
embedded in the common-law conception of a ‘principal’, To explain this
hypothesis, let “F”stand for the actor-up-front, actually carrying out the
deed; and “R” for the actor-in-the-rear, who remains behind the scenes. Now the
interesting point about the concept of the principal is that in criminal law, F
is the principal and R the accessory ; but in the private law of agency, R is
always the principal, and F the agent. In one case, the principal is the
actor-on-the-stage; in the other, he is the actor-behind-the-scenes.
The
reversal of roles is readily explained by the hypothesis that the “principal”
is always the dominant party in the transaction. In criminal schemes, the
principal is the actor-on-stage, who makes the final determination wether to
commit the discrete criminal act. In an ongoing commercial relationship between
principal and agent, master and servant, the principal remains behind the scenes
and directs the activity of the agent. These considerations are still reflected
in the law of the agency, for if F enjoys sufficiente autonomy, he is no longer
an agent, but an independent contractor. The tort liability of the independent
contractor is not imputed to the principal, for, as the doctrine goes, the
semiautonomous independent contractor does not act as an extension of the
principal’s will.
This comparison of principals in criminal and in private law
yields some important implications: First, it confirms the analogy
between the German theory of Tatherrschaft (hegemony-over-the-
act) and the common-law concept of a principal. And further, it
generates a critique of vicarious criminal liability in Anglo-American criminal law. Vicarious liability represents an extension into
criminal law of the private legal theory of the principal's dominance over the agent acting on his behalf. This conception of dominance, and the ensuing liability of the principals for the act of
the agent, might make sense in the commercial world, but when
transported to the field of criminal law, it flouts the reality of the
autonomous action by the actor executing the criminal act. (página 655).
Outro trecho de Fletcher sobre o tema amplo, no mesmo livro:
Chapter Eight
The Theory Of
Derivative Liability
The Theory Of
Derivative Liability
§8.1. The Concepts of Direct and of Derivative Liability.
The standard cases of criminal liability are those in which an individual violates a prohibitory norm, with neither justification nor
excuse. He may act in concert with others, but his conduct is assessed on its own terms. The crime perpetrated might take a variety of forms. It might be an act of causing harm, such as homicide,
or an inchoate offense, such as conspiracy or possession of contraband. It might be an affirmative act or a failure to act, as in the
failure to file an income tax form or the failure to answer a question before a congressional hearing. The standard form of perpetration is readily adapted to all of these variations in the form of
criminal conduct.
There are two species of criminal liability that fall outside the
standard cases of perpetration. The first is failing to intervene to
prevent a harm that the law seeks to prevent. Someone fails to render aid to a stricken party and the latter dies. Depending on the
circumstances and the relationship between the parties, the party
who fails to intervene might be liable for criminal homicide. This
form of liability is often called "commission by omission." The other problematic field is accessorial liability for criminal acts committed by others. In the idiom of the common law, "aiders and
abettors" can be held liable for the wrongful act1 committed by the
perpetrator. In this chapter, we shall propose a novel perspective
for analyzing these two special forms of liability. The claim is that
these two branches of liability not only lie outside the core cases
of perpetration, but that they share a number of important features. Note the following:
| 1. | In both cases of failing to intervene and of accessorial liability, the actor is punished for a violation of the same prohibitory norm that covers standard cases of perpetration. There is no crime of "letting someone die" or "being an accessory." The basic prohibitory norm is supplemented by special doctrines to cover failing to intervene (commission by omission) and accessorial liability. | |||
| 2. | Both fields are marked by a problematic causal link between the conduct of the accused and the harm (or wrongful act) for which he is held accountable. The party who fails to intervene and rescue someone in distress "causes" death in the sense that there is no liability if the intervention would not have saved the life of the victim. Yet the failure to intervene does not cause death in the same sense that shooting or strangling the victim does. Failing to intervene does not "taint" the passive party in the sense already explored.2 Similarly, the accessory "causes" the wrongful act of the perpetrator in the sense that he renders concrete assistance by supplying the weapon or giving counsel and advice to the perpetrator. Yet aiding the crime of a responsible, self-actuating perpetrator does not "cause," "control," or "determine" the latter's conduct. The accessory contributes to the crime, but the execution is not his doing. | |||
| 3. | The concept of intentionally committing an offense does not fit readily in either category. The physician who fails to stop at a highway accident can hardly be said to "intend" the death of a vic |
tim by driving on. Similarly, the manager of an answering service
who knowingly provides aid to a ring of call girls may intend to
facilitate prostitution, but it would be odd to say that in providing
the service, he "intends" to commit an act of prostitution. These
difficulties in applying the concept of intent are closely related, as
we shall see, to the problematic causal link discussed above.
These latter two points about causation and intent are admittedly debatable. The view that I shall urge demands careful argument. In this preliminary sketch of the theory, I rely simply on the
intuitive oddity of referring to "causing" harm and "intentionally"
committing a crime in cases of commission by omission and accessorial liability.
The experimental thesis of this chapter is that both forms of liability -- commission by omission and accessorial liability -- can be
grouped under the single heading of "derivative liability." "Derivative" liability is contrasted with "direct" liability in the standard cases of perpetration. Liability is derivative in the formal
sense that in neither field -- failing to avert harm or aiding the
crime of another -- is the defendant's conduct sufficient in itself to
constitute a violation of the norm under which he is punished.
Supplementary doctrines permit the courts to extend liability to
cases that the legislature has not identified as criminal in enacting
specific norms such as those against homicide, arson and larceny.
Liability is derivative in the substantive sense suggested by the
problematic causal link between the actor and the independent
process for which he is held accountable. In cases of failing to
avert harm, this independent process is the natural flow of events.
If a parent refuses to call a doctor to aid a sick child and the child
lives, there is no liability; if the child dies, the parent might well
be liable for manslaughter. Whether the child lives or dies is obviously not subject to the control of the parent in the same way as
the parent's own conduct is subject to his or her minute direction.
|
objected that if this is the substantive sense of derivative liability,
then homicide and all kindred offenses are derivative: there is no
liability unless the death or analogous harm actually ensues. This
objection obscures the important difference between the core sense
of causing harm and the problematic sense of causation in failing
to prevent harm and aiding a perpetrator. This critical distinction
will admittedly not become clear until we devote due attention to
the concept of causation.3
The primary value of the proposed concept of derivative liability is that it enables us to formulate several propositions that otherwise remain obscure. In working our way through the details of
the law, we shall find that fields of commission by omission and
accessorial liability share two architectonic concerns. The first is
whether particular factual situations should be treated as cases of
direct or of derivative liability. This recurrent concern derives from
the strategic value of classifying a case as an instance of derivative
liability. While intentionally causing death is prima facie wrongful
and punishable, letting someone die by failing to intervene is
punishable only if there is a special duty to intervene. There is an
obvious advantage in arguing, for example, that turning off a mechanical respirator in anticipation of the patient's death is a case of
derivative rather than direct liability; under the particular facts of
the case, there might not be a duty to continue aid to the patient.
In the field of accessorial liability, the advantage of being treated
as derivatively rather than directly liable depends on the particular
legal system. In many systems, but not in Anglo-American law, accessories are punished less severely than perpetrators. Yet even
those systems that do not officially punish accessories less severely
may reach the same result under a system of discretionary sentencing. If American courts are to return to a system of prescribed sentences for specified offenses, it would be good to consider whether
the substantive law of liability should prescribe a lower level of
punishment for accessories. What judges now do as a matter of
discretion may someday have to be spelled out in the substantive
law.
|
The second feature common to both fields is the setting of
minimum criteria for derivative liability. In the field of commission by omission, the threshold is defined by the imposition of
particular duties to intervene and prevent harm. In the arena of accessorial liability, the issue is when one must desist from interacting with persons who one knows are about to commit crimes.
Must a gas station attendant refuse, at the risk of liability as an accessory, to sell gas to someone who says that he is on his way to
commit arson? In both fields, the working out of these minimal
criteria raises subtle issues in the conflict between liberty and social protection.
§8.2. Derivative Liability for Omissions.
The field of liability for "omissions" encompasses not only cases
of commission by omission, but also liability for the breach of a specific statutory duty to act. This latter category, which we discussed
in Chapter Six, represents cases of direct rather than derivative liability. These instances of failure to act are typified by the breach of
a duty to submit a tax return, to answer a material question before
a congressional committee, or to give one's name and address at
the scene of an accident. Provided that the defendant has a fair notice of his obligation, there is nothing suspect about these statutorily imposed duties to act. Therefore, these cases of statutory
breach represent instances of direct liability no different in structure from liability for prohibited affirmative conduct.
In the context of this chapter, we should restate the way in
which these statutory violations are distinguishable, formally and
substantively, from cases of derivative liability for failure to avert
harm. Formally, the breach of a statutory duty, say the filing of an
income tax return, is a case of direct liability, for the actor is held
accountable under the statute generating the duty to act. Cases of
derivative liability, in contrast, represent extensions of offenses
that are typically committed by affirmative conduct. In a substantive sense, liability for failure to report taxable income is direct
rather than derivative, for the offense is complete at the moment of
breach. Derivative liability, in contrast, is based on some independent process of events over which the defendant has minimal control, and therefore liability is not subject to determination until
these events run their course.1
Logically, liability could be derivative in one sense but not the
other. For example, one might think that liability might be at least
formally direct if the legislature specified all the cases in which
there was a duty to intervene and prevent death. It would not be
sufficient, however, for the legislature to decree in general terms
that the failure to fulfill a duty to prevent death would support a
charge of criminal homicide.2 It would still be incumbent on the
courts to work out these duties in specific cases, and the general
legislative rule would hardly avoid any of the objections that one
might have to judicial development of the substantive rules of liability.
The field of derivative liability for omissions must be carefully
staked out on two fronts. At the one frontier, the field must be
distinguished from direct liability for omissions, as we have sought
to do in the preceding paragraphs. At the other frontier, the field
must be marked off from cases of direct liability for negligently causing harm. Many cases of negligent manslaughter might be interpreted as omissions constituting the breach of a duty. A driver
fails to turn on his lights. A railroad switchman fails to keep a
lookout. A surgeon fails to remove a sponge from the patient at
the end of an operation. As a result of all these "failings" a significant harm occurs. The omission of proper care could be seen as
analogous to the failure of a parent to render aid to a sick child,
but this analogy would be highly misleading. These negligent fail
____________________
ures are embedded in larger activities. In these particular cases,
the negligent breach of duty converts the driving, the railroad
crossing, and the medical operation into unexpected hazards. The
negligently managed activity creates a substantial and unjustified
risk of harm. If the harm materializes, the cause appears to be the
negligent activity as a whole rather than the isolated failure to exercise due care. In these cases, therefore, it is more fitting to describe the relevant duty as a duty of care in managing an activity
rather than a duty to intervene and prevent harm.
There are undoubtedly cases in which it is difficult to decide
whether the omission occurs within a larger activity that causes
harm or whether it constitutes an isolated failure to intervene. A
parent's failing to feed a child or failing to provide adequate protection in the winter might be treated as part of the larger enterprise
of caring for children. Failing to keep a dangerous dog locked up
might be seen as part of the larger enterprise of maintaining the
dog. If the case is seen as one of negligent affirmative activity, the
general duty not to injure others would be prima facie sufficient
for liability. If the case is seen as a problem of omission, the issue
of duty can be a stumbling block in establishing liability. Thus
there is great practical significance to the subtle classification of a
case as negligent risk-taking or as the failure to intervene to prevent harm.
Two related considerations provide some assistance in working out this critical distinction. First, one should ask whether the
duty is owed to someone who is already in a situation of distress.
If a sick child is in need, the failure to render aid is a case of failing to intervene rather than negligent parenting. It is less plausible
to say that a nighttime motorist two blocks away is already in a
situation of distress if she should soon encounter an oncoming car
without lights. Accordingly, the failure of the oncoming driver to
turn on his lights is a case of negligent motoring, not a failure to
intervene to prevent the collision. Secondly, it is helpful to inquire
whether the duty to be imposed is directed to a specific person or
whether it is owed to the public as a whole -- or at least to a large
number of people in the vicinity. The duty to intervene is typically
owed to a specific person in distress; the duty to exercise care is
To summarize our demarcation of the problem, derivative liability for failing to avert harm must be distinguished both from (1)
direct liability for breach of a universal statutory duty, and (2)
breach of a general duty of care in cases of negligently causing
death. The underlying rationale for this demarcation is that derivative liability presupposes four elements: (1) a harm that is to be attributed to the actor, (2) an independent human or natural process
that is the primary cause of the harm, (3) the actor's ability to prevent the harm and his failure to do so, (4) a duty to intervene and
prevent the harm. Direct liability for breach of a statutory duty
falls outside the scope of the inquiry, for, contrary to the first requirement, the analysis of liability does not require the attribution
of harm to the actor.4 Negligently causing death by breaching a
general duty of care fails to qualify under the second requirement,
for the primary cause of the harm is the negligent conduct itself
and not an independent human or natural process.
These claims about causation may strike some readers as puzzling. Too much may seem to turn on the nebulous concept of causation. Therefore we should pause to consider the impact of diverse theories of causation on the theory of derivative liability.
§8.2.1. Causation and Derivative Liability. The prevailing
____________________theory of causation in the criminal law, both in Germany5 and the United States,6 is the expansive test: an event X causes an event Y
if, but for X, Y would not have occurred. This test, conventionally
known as the sine qua non or "but for" test, treats all necessary
conditions for a particular harm as "causal." The implication is
that a failure to intervene and prevent a suicide causes death in
the same sense as strangling the victim to death. A doctor's failing
to aid a stranger in need causes death in the same sense that injecting air into a patient's veins causes death. If the implications of
the "but for" test are followed through, there is no important difference between the causal role of acts and of omissions. It follows
as well that for every crime there are an infinite number of causes.
The fact that no one killed B the day before A's assault is as much
a "cause" of death as A's actually killing B.There is no doubt that the "but for" test captures an important truth about causation; if B's death would have occurred regardless of A's act, then we cannot say that A caused the death.
We apply this rule of thumb in cases of failing to avert death as
well as affirmative acts leading to death. If the swimmer would
have drowned, no matter what measures the lifeguard might have
taken, we cannot say that the lifeguard's ignoring the plea contributed to the death. The lifeguard should not be held accountable
for the death unless he could have prevented it.The confusion in the orthodox view is that a necessary feature
of causation (namely, satisfaction of the "but for" test) is taken
to be a sufficient condition of causation. The effects of conflating
the necessary and sufficient conditions for causation reverberate
throughout the criminal law. The noteworthy implications are:
| 1. | There is no difference between necessary conditions and causes. |
____________________
5
Schönke-Schröder-Lenckner §13, preliminary note 73, at 132; Rudolphi in SK
§1, preliminary note 39, at 15; Jescheck208-210. For a thoughtful critique of the
"but for" test in German law, see
Naucke, Über das Regressverbot im Strafrecht, 76 ZStW 409 ( 1964).
MPC §2.03(1)(a); LaFave &
Scott249; there is considerable awareness about a
defect in the "but for" test that is not of immediate concern to us, namely, the case
in which two sufficient causes concur, rendering neither necessary (e.g., two fatal
shots fired simultaneously). See id. at 249-50; Hall268-70; Perkins699-700.
| 1. | Because the causal link is limitless, some new concept must be devised to eliminate far-flung effects from the range of liability. Common lawyers speak about proximate cause; German lawyers have developed the theory of soziale Adequanz as a way of reaching many of the same results. Both of these techniques shift the problem of far-flung effects from the theory of causation to the domain either of policy (proximate cause) or the interpretation of the applicable legal norms (soziale Adequanz). |
| 2. | The concept of causation does not express a noteworthy difference between acts and omissions; if the failure to prevent harm satisfies the "but for" test, it is causal in the same sense that any acts leading to harm are causal.7 |
For the purposes of our present inquiry, the third implication
is devastating. If there were no important causal differences between acts and omissions, we could not even begin to develop a
theory of derivative liability. That theory, as we noted above, presupposes that the party who fails to avert a significant harm is
held liable even though he is not the primary "cause" of that
harm. This distinction between primary and lesser causes is untenable under the "but for" theory. The progress of this chapter depends on our making an adequate case against this orthodox theory that treats all necessary conditions, all acts and omissions, as
equivalent causes.
Our aim is to develop a theory of causation that will give adequate expression to the difference between acts resulting in consequences such as human death and omissions that fail to prevent
these consequences. The implicit agenda of the argument is to
shift our focus away from the analysis of human conduct in isolation and toward an analysis of conduct as it affects the external
world. The former perspective is "atomistic" in the sense that it
____________________
7
Some German writers have sought to avoid this implication by amending the
"but for" test to eliminate possible intervening factors. See
Weizel 44 (example: A
and B each hand C a stick to beat X; C uses A's stick; that C did not use B's stick is
not a causal factor). This view was apparently developed in G. Spendel, Die Kausalitätsformel der Bedingungstheorie für die Handlungsdelikte 38 ( 1948), cited at Welzel44. Cf. Jescheck468 (denying the causal effect of omissions).
-590-
takes human acts or omissions as isolated events to be analyzed
apart from their effects on other persons and their interests.
Atomistic theories come in a naive and a more sophisticated
form. The naive theory follows from the definition of acts as
"willed bodily movement." Omissions are the negation of acts and
therefore should be defined as the absence of bodily movement --
or pure passivity.8 Although this definition of "acting" is still current, it is hard to find anyone today who seriously argues that
omissions should be defined as the "absence of movement."9
The more sophisticated atomistic theory is that omissions are
defined by the absence of the specific act which, if carried out,
would satisfy the actor's legal obligations.10 Accordingly, one does
not forbear from action in general; one forbears from a specific action required under the circumstances. The argument is that, unlike "acting," "omitting" is a transitive verb. For the term to apply, one must "omit" something -- and that something is the act
required by the applicable social, moral, or legal rule.11
The sophisticated theory reduces to the observation that some
norms prohibit conduct and others require conduct. Omissions
are the violation of norms that require conduct. That is true, but
the claim is no more profound than saying that "acts" are the
violation of norms that prohibit conduct. What the sophisticated
theory fails to do is give an account of why liability for failing
to act is so problematic in all Western legal systems. Why are
there so few norms requiring conduct? Is there an important difference between norms that simply require an act and those that
require intervention and the prevention of particular harmful results? These are some of the questions we hope to answer by developing a "relational" theory of human conduct -- one that focusses
on acts as they affect other human beings and their interests.
A relational theory of human conduct stresses interaction
among individuals and the role of action in affecting others. While
the emphasis in atomistic theories is on expressing one's will in
movement and in choices, the relational theory brings into relief
the way in which our conduct changes our relationships with
other persons. The damage we do to others is a critical aspect of
our acting in a community of vulnerable persons. A relational theory of acting means that the consequences of our acts must be
seen as an integrated aspect of our acting relative to others. The
occurrence of death is inseparable from the act of killing; the destruction of a dwelling is essential to an act of arson. Of course,
there are some acts, such as speeding on the highway, that do not
entail consequences. But in the range of criminal acts that generate
harmful consequences, the consequences and the assertion of the
will are an integrated whole. This view of acting, it is worth noting, has a precursor in the "social" theory of action, as developed
by Maihofer and other German writers.12
In order to develop a relational theory of acting, we are impelled to reject the "but for" theory of causation and develop a
view of causation that permits us to attribute consequences to particular actors. The proof that the "but for" theory is inadequate to
this task of causal attribution is readily found in the new American literature on the economic analysis of legal problems. The literature is dominated by a causal nihilism that equates the position
of the person who breathes polluted air with the factory that pollutes the air or, to take another favorite, the position of the farmers
whose crops are burned with the railroad emitting the fire-inducing
sparks.13 Both parties (polluter and breather, railroad and farmer)
are necessary for the occurrence of the harm and therefore there
is no way to determine who "causes" what. If the victim chose
to breathe elsewhere or to move her crops, there would be no
harm; therefore her staying where she is (her omission) is as much
____________________
12
See §6.6.5, at note 40 supra.
13
See Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 ( 1960); R. Posner, Economic Analysis of Law34-39( 2d ed. 1977).
-592-
Page 593
a cause of harm as the active emitting of pollutants and sparks.
The proponents of this view concede that their argument is limited
to an "economic" analysis of legal problems. But in fact their
causal nihilism is a direct implication of the "but for" theory of
causation. It is true that "but for" the continuing presence of the
victim, there would be no harm. The logical extension of the "but
for" theory invariably generates scepticism about who is intruding
against whom.
What I will attempt to show is that "intrusion" or "interference" is essential to a relational theory of acting. And the way
to develop this theory is to consider theories of causation that permit us to say the polluter intrudes against the party gasping for
clean air or that the railroad intrudes against the farmer seeking to
nurture his crops.14
The course of the argument will take us first to a "common
sense" theory of causation, as developed primarily by H. L. A.
Hart and A. Honoré.15 Upon exploring the concept of causation in
the abstract, we shall find that the inquiry is advanced by turning
to concrete causal verbs, such as killing, assassinating and executing. The aim of the inquiry is to defend the critical difference between killing and letting die, between assassinating and letting
someone be assassinated. The "but for" theory of causation collapses this critical distinction and therefore we must look elsewhere for an account for the basic relationships of causing harm
that are rooted in our language.
§8.2.2. An Alternative to "But For" Causation . The essential
claim of the "but for" theory is that all necessary conditions for an
event should count as "causes" of that event. While we may accept
this principle as one requirement of causation, we shall argue that
the concept demands more. The argument for that additional ele
ment of causation builds on two claims. The first is historical, and
the second, conceptual and linguistic. The historical claim builds
on earlier discussions of the practice of tainting in the law of
homicide.16 An essential condition of the taint and of the resulting
forfeiture of goods was that the defendant's act caused the death.
It is important that in the entire early history of homicide there is
no discussion of tainting in cases of failure to prevent death. Liability for omissions emerged in the nineteenth century, only after
the practice of tainting and forfeiture came into eclipse.17 This is
powerful evidence that the common law functioned with a different theory of causation. The practice of tainting, with the resulting
forfeiture of goods, would not have been possible if all persons
who might have prevented death were tainted. Tainting arose
from entanglement with evil, from getting blood on one's hands,
from personal contact with the occurrence of death. It did not arise
simply from indifference to the fate of others. If there is anything
that is basic in the morality underlying all Western approaches to
homicide, it is that strangling a victim is fundamentally different
from looking the other way when a stranger is drowning.
The conceptual argument against the "but for" test starts with
the elementary question: what is a theory of causation about? It is
possible that we have a term of art in mind, in which case we are
entitled to stipulate any definition we wish. The price of a free-
ranging stipulation is that we lose contact with reality. If we wish
to build a system of criminal law on the basis of a concept that exists in the world, then we must attend to the way the concept
functions in our daily lives. This means that we must examine our
reasons for making causal inquiries and pay close attention to the
way we ordinarily speak about "causing" harm.
One important feature of causal inquiries is that we do not ordinarily inquire about the cause of normal or continuing states of
affairs. We speak about the cause of death, but not about the cause
of life. Why not? Death at a particular moment is unplanned and
unexpected and therefore we wish to know why it happens. But a
healthy person's remaining alive does not stimulate our interest in
explaining the world around us. Things would be different, of
course, if we expected someone to die in an airplane crash and she
survived. Then we might appropriately ask: how did she survive?
To what does she owe her added days of life? (Note that we still
have some difficulty framing our question with the word "cause.")
This difference between life and death demonstrates that causal inquiries are not always appropriate. When inappropriate causal
questions are raised, as if someone should ask you the cause of
your being alive today or the cause of the water still being in the
ocean, we are likely to wonder.
It would be difficult to give a complete account of when
causal inquiries are appropriate, but one obvious category is precisely the range of accidents, unexpected events, and untoward
acts that preoccupy the law. We probably find it odd to ask: What
caused him to wear clothes to the office? But we would never find
it odd to inquire: What caused the crash? Why did he breach his
contract? What prompted her to kill her child? Any death, any unexpected destruction of property, any injury to a human being --
these are the stuff of causal inquiries.
If we see that "results" that lend themselves to "causal" questions are a special class of events, we should not be surprised to
learn that causes, too, are different from ordinary and routine
events. Every cause must satisfy the "but for" criteria and be a
necessary condition of the events occurring. Apart from that minimal qualification, "causes" are like the "effects" that they explain.
Among all the necessary conditions for a particular event, the
"causes" are those conditions that make the difference under the
circumstances. They are the abnormal and unexpected factors that
stand out from the background and help to explain the particular
result. There are some factors that might be causal in one situation
and not in another. For example, we would not say that the presence of oxygen in the air was the cause of a forest fire (even
though "but for" the oxygen the fire would not have occurred).
Yet there might be situations, such as in laboratory experiments,
in which the presence of oxygen was unexpected and therefore it
would be properly discerned as a causal factor.
Now it is entirely possible that an omission might be either
an event that we wish to explain (why was she absent from class?)
or the abnormal and unexpected factor that constitutes a causal explanation. If we wish to know why the plant died, the best explanation might be the owner's failure to water it. If we wish to
know why the baby died, the best explanation might be that its
mother purposefully starved it to death. Yet if an old woman succumbs to pneumonia in New Jersey, it would be bizarre to explain
the death by saying that a particular physician in Florida did not
attend her when she was sick. Of course, the "but for" test would
have us believe that the physician's failure to come from Florida was
"a cause" of death (assuming the pneumonia was curable), as was
the failure of every other doctor to treat her a "cause" of death. By
identifying every necessary condition as "a cause," the orthodox
"but for" test frustrates our effort to explain the death. The best
explanation of the old lady's death might be simply that she died
of natural causes.
It is important to underscore the concession in the preceding
paragraph that some failures to act might cause death (e.g., failure
to feed a child).18 The important difference between the "but for"
test and the ordinary person's notion of causation is this: the
former theory takes all failures to act as causal if intervening
would have prevented the harm. The latter theory distinguishes
between omissions that are merely necessary conditions and specific failures that stand out as the unexpected abnormal factors
explaining the untoward event.
This emphasis on the normal and the expected injects criteria
of convention into the perception of causation. If smoke alarms in
the home are highly unusual, we could hardly explain the death of
children in a home fire by saying that the family did not have a
smoke alarm (we might as well explain the death by saying the
fire department failed to have a station next door). Yet if every
other house in the city has an alarm, we might well explain the
death of children by pointing to the absence of an alarm that could
have saved their lives. The rule of convention means that what
was not a cause yesterday might become a cause tomorrow. And
what was formerly a cause might cease to be more than a necessary condition. Indeed, this is the way we are inclined to think
about literacy in relationship to success in the world; literacy
might previously have been sufficient to assure success, now it is
at most a necessary condition. This degree of fluidity and uncertainty in the concept of causation makes one wonder whether this
commonsense concept of causation is well suited to function as a
basic building block in a theory of criminal liability.
In the next section, I will suggest that the concept of causation
can be given a more secure footing by focussing on specific causal
verbs, such as "killing," "starving," "strangling," "poisoning,"
and the like. But first it is important that we complete our critique
of the orthodox "but for" theory that inhibits our efforts to distinguish between liability for caused and uncaused death.
The most damaging evidence against the "but for" theory of
causation is that even its proponents do not consistently use the
standard they espouse. A case in point is the Model Penal Code.
In §2.03, the Code commits itself to the orthodox rule that
(1) Conduct is the cause of a result when:and therefore it is clear that §2.03(1)(a) encompasses all failures to act but for which "the result in question would not have occurred."The inconsistencies arise from the drafter's using the term "cause" in the definition of specific offenses. "Criminal homicide" is committed by anyone who "causes the death of another human being" with one of four culpable states of mind.21If taken seriously, this definition would imply that anyone who knowingly abstained from aiding someone in distress would, if death ensued, be guilty of murder. It might be thought that the definition of "knowing" conduct would come to the rescue, but that definition also turns on the concept of causation. Applying §2.02(2)(b) in this context, we learn that "a person acts knowingly with respect to [the element of death] . . . if he is aware that it is practically certain that his conduct will cause [death]." It follows that if a stranger is practically certain that his failing to rescue a drowning child will result in death, he "knowingly causes" death and is guilty of murder.Though there might be some who would welcome this sweeping extension of the law, the drafters of the Model Penal Code clearly did not intend to conflate the common-law difference between acts and omissions. Section 2.01(3)(b) restates the traditional rule that liability for commission of an offense by omission turns on whether a "duty to perform the omitted act is . . . imposed by law." The requirement of a duty to act would be superfluous if we read the definition of murder together with the definition of "causing."This tension between the rule of "but for" causation and the definition of particular offenses recurs throughout the Code. Section 220.2 makes it a felony to "cause a catastrophe by explosion, fire, . . . [etc.] by any means of causing widespread injury or damage. . . ." If this provision were read together with the definition of causation, it would follow that anyone who consciously fails to report a fire (where the report would prevent widespread damage)would be guilty of a felony. One would hope that this is not what the drafters had in mind.The pervasive confusion in the Model Penal Code is easy to explain. The drafters felt called upon to define the word "cause" and therefore they fell back on the orthodox theory of "but for" causation. However, when they use the word "cause" in defining specific crimes, they revert to the English language and thus think and speak about "causing" as do the rest of us in our daily lives. In defining murder as "knowingly causing death" they did not mean to obliterate the distinction between strangling a victim and letting her die of an overdose of morphine. The intended meaning is obvious. It is only the failure to reflect upon the implications of "but for" causation that produces the confusion.22§8.2.3. Verbs of Interference and Causation . The causal confusion of the Model Penal Code illustrates a deeper point. It is possible to adhere to the "but for" theory of causation as a purely jurisprudential matter; but if one does, one should avoid using the word "cause" in drafting specific legal rules and definitions. Jurisprudential theories will not affect the criminal law if the false theories are never put to the test. The Model Penal Code and its progeny aside, Western statutes and commentators have consistently defined homicide by relying on the verb "to kill" rather than on the concept of causation.23 Thus in the analysis of homi____________________22This confusion is repeated in several state statutes that have followed the Model Penal Code. See, e.g. Hawaii Penal Code §214 ("but for" standard of causation); §701 (murder committed by one who "intentionally or knowingly causes the death of another person"); Tex. Penal Code §6.04(a) ("but for" standard of causation); §19.02(a)(1) (murder committed by one who "intentionally or knowingly causes the death of an individual").23Cal. Penal Code §187 ("unlawful killing"); StGB §212 ("wer einen Menschen tötet"); Ugol. kod. (RSFSR) §102 (crime labelled "intentional killing"); but cf. Code Pénal §295 (meurtre defined simply as l'homicide commis volontairement); some newer statutes have adopted the "but for" test of causation, but avoid the word "cause" in the provisions on homicide, see Pa. Cons. Stat. tit. 18, §303(a) ("but for" causation); §2502(a) (murder of the first degree defined as "intentional killing"); other statutes define criminal homicide as "causing death" but do not seek to define causation. See Proposed Federal Criminal Code §1601(a) (murder); Can. Rev. Stat. C-34, §212(a)(i) (murder committed by one who "causes death" and "means" to do so).-599-cide, the language of definition insulates the practical solution of legal problems from the inadequacies of the "but for" theory of causation.This is not to say that legislative prohibitions never employ the word "cause." Yet the context of usage often is the specification of an added penalty in the event that a completed offense issues in a greater harm than that intended.24 For example, §226 of the German Code provides that if "an assault and battery causes death," the minimum punishment should be three years imprisonment. This provision does not admit of confusion between acts and omissions, but rather presuppose a prohibited affirmative act as a condition for the aggravated offense.Construing the term "causation" in §226 of the German Code generated the leading precedent in German law favoring the "but for" theory of causation.25 An examination of this case, however, indicates that the holding has little bearing on the analysis of causal effects of omissions. The defendant slapped the victim in the face and the victim unexpectedly died. The defense was that the death was unforeseeable.26 The court rejected the relevance of foreseeability on the ground that the terms of §226 did not require culpability relative to the occurrence of death. This is a very limited holding, and its premise on the relevance of culpability is hardly compatible with the basic principles of German law. Nonetheless, the case is generally taken to stand for the adoption of the "but for" test in German criminal jurisprudence.27There is much to be learned from putting aside the language of "causation" and focussing instead on the verbs that are typically used in defining criminal homicide. The foremost verbs of homicide are "killing" and "slaying"; the means include "strangling," "stabbing," "poisoning," "starving," "shooting," "drown...
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