The Southern Journal of Philosophy (1989) Vol. XXVII, No. 4

RECKLESSNESS, OMISSION, AND RESPONSIBILITY: SOME REFLECTIONS ON THE MORAL SIGNIFICANCE OF CAUSATION Patricia Smith University of Kentucky

The question of responsibility for omissions-accountability for not acting-is the subject of fierce controversy, both in legal and in ethical discourse. Interestingly enough, legal discussion usually assumes that while there is no general legal duty to rescue a stranger, there definately is such a moral duty in many circumstances. This view is clearly illustrated in the following opinion from the case of Buch u. Amory Mfg. co.: With purely moral obligations the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved. Suppose A., standing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child’s injury, or indictable under the statute for its death.[ J “No action will lie against a spiteful man, who, seeing another running into danger, merely omits to warn him. To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty; . . .”[ ] (citations omitted).’

So, according to law, it is up to the strictures of morality alone to prod hesitant humans into action on behalf of their fellows.2 Furthermore, legal opinion suggests that the moral duty to help is clear. Unfortunately, the moral position is not as clear as Amory suggests. For a number of reasons the moral duty to aid the imperiled is denied by some philosophers, and the major ground for this denial is the lack of causal agency

Patricia Smith is an Associate Professor at the University of Kentucky, where she teaches legal and moral philosophy. She has written articles on constitutional law, family law, and decision theory, but focuses primarily on the problem of omission and responsibility. She is currently working on a textbook in legal philosophy.

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on the part of one who fails to act. The philosophical dispute falls largely, although not exclusively, in two camps.

On the one hand, it is often argued that a person, after all, is not responsible (legally or morally) for what he does not cause. It is a commonplace understanding that the duty to aid is not so strict as a duty not to cause harm. So although it may be praiseworthy for a person to aid another who is in peril, in the last analysis, it is up to each individual to decide when or whether he will assist anyone else in any particular case. If he does not help in a particular case, he may not be praiseworthy, but it is not clear that he can be blamed. And he certainly cannot be held as blameworthy as if he had caused the harm. So on this view causing harm is decisive as to imputing responsibility.3

On the other hand, some people who find the denial of responsibility for failing to prevent harm unsatisfactory have offered a view often called the Equivalence Thesis. According to this view causation is irrelevant to blameworthiness in and of itself. We mistakenly assume that causation is relevant because it commonly coincides with other factors (such as motive and probability of harm) which are relevant. But if all other factors are held equal, it becomes clear that not preventing harm is morally equivalent to causing it. So this view contends that causing harm in itself is irrelevant to the ascription of responsibility .4

Frankly, each of these views appears quite plausible in some cases and very implausible in others, as I hope my examples later in this paper will show. Overall, both views are too extreme. So I shall propose a position in the middle.

The question to be examined is the following: is causation relevant in assessing blameworthiness (or responsibility), and if it is, when is it relevant, and when is it decisive? I shall argue that it is sometimes relevant, and sometimes not decisive. That is, I shall argue against both the views set out above. Even if we agree that causation is relevant to ascribing responsibility it does not follow that it is always decisive. Many factors are relevant, and some may be more powerful than the element of causation. The question then becomes what are the other significant factors, and how powerful are they? To pursue these questions I review an insightful argument offered by James Rachels, which is limited, I believe, in its ability to assess the relevance of causation because of the presence of the powerful factors of intentional harm and special positive duty (both of which trigger responsibility without causation). Consequently, I suggest the context of recklessness, especially reckless omissions, for evaluating the

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moral significance of causation. Some interesting parallels emerge in this context which point to the view that in most cases, because of the presence of a number of factors, failing to prevent harm, where culpable, is like recklessness or negligence and not like intentional harm.

I. Negative Causation

Before moving to the main focus of the discussion I should mention one issue which I will largely defer to another occasion. There are two ways of supporting the claim that failing to prevent harm is equivalent to causing it. It can be argued that causation is morally irrelevant in itself. Or it can be argued that omissions are actually causes. I am concerned with the former, as a more promising line of investigation. The former issue moots the latter but not vice versa as to issues of moral responsibility.

Nevertheless, one fairly widespread reaction to the claim that one is only responsible for what one causes has been to argue that omissions are causes.5 This is an interesting issue in itself, but a very complex one, and one which is not necessary to the present inquiry. So, recognizing that many questions need to be considered in an adequate treatment of this issue, I shall merely suggest here that there are some good reasons, both conceptual and pragmatic, for maintaining the distinction between causing something and allowing it.

It is generally accepted, I think, that “allowing” is “not preventing what one can prevent.”6 But one may cause what one cannot prevent. Suppose Hestor is a tomato picker. One day Hestor trips and lurches into her wagon full of tomatoes which is perched on top of a hill. Dismayed, she sees the wagon start rolling down the hill. She runs after it. Bravely, she leaps on board. She drags her feet. She grasps at tree limbs whizzing by; but alas, despite her best efforts to stop it, the wagon, the tomatoes, and Hestor all crash into the creek at the bottom of the hill. Hestor caused the wagon to roll down the hill, but she did not allow it because she could not prevent it. This is far from a conclusive consideration, but it does show that there is at least one rather significant conceptual distinction between “causing” and “allowing.”

Furthermore, I would suggest that the distinction is a useful one, which we would find it necessary to reintroduce in some other form if we obliterate it in terms of causing and allowing. For example, if there is no causal difference between, say, intervening and not intervening in a causal chain or network- that is, between negative factors and positive factors in a

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causal pattern, then what is the debate over active and passive euthanasia about? Suppose an advocate of active euthanasia argues that active euthanasia should be permissible because it is causally equivalent to passive euthanasia. But if it is causally equivalent then why bother to advocate i t? What is being advocated? I believe the proponent is asserting that it should be permissible to intervene, to bring about death quickly and humanely rather than to stand by passively while someone dies slowly without intervention. But if that is the argument it is necessary to reintroduce the distinction between causing and allowing (i.e., intervening and not intervening) as “active causing” and “passive causing,” or causing, and causing,.

Now, why would anyone want to do that? It might be worth doing if intuitions attached to the traditional terminology are precisely what need to be challenged. That may be a good reason for rearranging terminology, but it does not show there is no causal distinction. Rather it indicates that the interesting question is the moral relevance of the distinction. That is the question to which we will now turn.

11. Significance and Equivalence

One problem with the literature on this issue is that relevance is regularly considered in terms of equivalence. That is, the debate seems often to be posed in terms of whether allowing harm is as blameworthy as causing it.7 But if that is taken as the end of the inquiry rather than as the beginning, it stops far too short, and thus puts us on the wrong track. Allowing harm may not be as blameworthy as causing it if all other factors are equal, but it may be very blameworthy nonetheless. Even if second degree murder is not as serious as first degree murder, reference to that fact could hardly be considered a defense of second degree murder. The absence of one factor (such as, premeditation) does not necessarily eliminate blameworthiness even if it is a n important and relevant factor. Similarly, causation may be relevant without being decisive. This is the position for which I will argue. If this position is correct, the interesting questions are what other factors are relevant, and how important are they?

The most common comparisons, I think, are the least helpful. A man is stabbed on a subway car. Are the people who watch him bleed to death as blameworthy as the person who stabbed him? Thirty eight people look on as Kitty Genovese is slowly murdered. No one helps. Are they as blameworthy as the murderer? Most people would say no; but these kinds of cases are generally unhelpful because they hold no factors constant,

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so the moral differences could be due to any number of considerations.

James Rachels was, perhaps, the first to recognize the importance of these multiple factors when he addressed this aspect of the act-omission problem by comparing the cases of Smith and Jones. Smith drowns his young cousin in a bathtub for an inheritance. Jones intends to do the same, but luckily, (for Jones, that is) his intended victim slips and drowns while Jones stands by in case it should be necessary to push the child back under the water. Rachels concludes that since Smith and Jones are equally blameworthy, causation is morally irrelevant if all other factors are held equal. Motive, cost, and probabiliy of harm are the morally relevant factors, he thinks.*

111. Intending Harm and Being in Control

Although Rachels advanced the discussion considerably by noting the diversity of relevant factors in the act-omission dispute, his conclusion does not necessarily follow from the cases he cites. There are at least two features which make the bathtub cases of questionable general relevance to the causal issue.9 First, intending harm is a powerful moral consideration. If intending harm is coupled with full control over the situation, it may follow that causal considerations are overridden.

Douglas Husak, has suggested just such a n approach, arguing cogently against the assumption that cause is a necessary condition for (legal) liability. His arguments hold equally well as applied to moral blameworthiness. He offers as an alternative principle for grounding and limiting liability the notion of “being in control over a state of affairs.”lO The idea cannot be developed here but there is a great deal to be said for it, both in terms of moral intuition and legal explanation. Jones is in control over a situation which requires action, which is exactly what makes him blameworthy for (intentionally) not acting. Furthermore, not being in control of a situation is counted as an excusing condition even where an actor does cause harm. (If Smith tripped on a bar of soap and fell on the child, knocking himself unconscious, and pinning the child under water, Smith would not be morally blameworthy for the child’s death.) Thus, being in control over the fate of another is a very important factor which appears to outweigh or replace causal considerations in some cases, and provides an alternative account of responsibility for harm.

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So Rachels’ cases may be explained as a) intentional harm caused or allowed by one who is b) in full control of the situation. This does not necessarily show that causation is irrelevant, although it does show that it is not decisive-it should not be considered a necessary condition for ascribing responsibility. It does seem to show that factors a) and b) taken together are decisive. But even where both a) and b) are present it is not clear that cause is irrelevant. Intuitions may differ; some may feel that Smith is more blameworthy than Jones. If so, this still need not suggest that Jones is not blameworthy at all, but rather tha t cause (like premeditation) could be considered an added factor, an aggravating factor, which makes Smith even worse than Jones. Such a view could explain why no legal system would in fact hold Jones equally liable to Smith, and why we might not want an ideal system to hold them equally liable. (We wouldn’t, would we?)ll

But suppose, arguendo, we consider cause to be completely overshadowed (or made irrelevant) by a) and b), morally speaking. It still does not follow that causal differences are irrelevant in any case, specifically in cases which do not involve intentional harm. Intentional harm is as different from negligent harm as malice is from indifference. So, in cases of unintentional harm causation may still be relevant.

IV. Special Positive Duty

The second questionable factor in Rachels’ cases is their possible relation to special positive duty.’2 Rachels makes no overt reference to special positive duty, but since the bathtub cases are set up to appeal to our moral intuitions we should consider some of their latent properties. Jones is the child’s cousin. Rachels makes nothing out of this special relationship, but how is it that Jones has access to the child alone in the bathtub? Children do not generally live alone. Someone is responsible for that child. Is it Jones? Do we intuitively infer that it is Jones and build that into the case? If so, Jones is under a special positive duty of care to the child which is clearly violated by the case.

None of this is stated in the case, and it could be denied. That is, Rachels could tell us, “Now, don’t build in the notion of special positive duty here. There is no special relationship between Jones and the child.” But how do we make the case intelligible? Either Cousin Jones is under a special positive duty of care to the child or he is a trespassor. Is it clear that we can blot such background considerations out of our intuitions, given the nature of the case?13

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To see how powerful special positive duty can be, consider a patient in a hospital. If the patient is intentionally killed (say, given a lethal injection) it is a case of murder. If a patient is intentionally allowed to die (e.g., by withholding insulin from a diabetic) it is also murder. If a patient is unintentionally killed (same lethal injection, but by mistake) it is a case of negligent homicide. If a patient is unintentionally allowed to die (again, by failing to administer needed insulin) it is also negligent homicide. This is legalistic terminology, but I think it corresponds to moral intuitions.

These cases provoke the same intuitions as those produced by Rachels’ cases. But what follows from them? Nothing follows about the relevance of causation to responsibility. All that necessarily follows from the hospital cases is that in such circumstances we hold people very strictly responsible for either their actions or their omissions. That is hardly surprising.

Agents in the hospital are under a strong duty of positive action. It is reasonable to hold them to this strong duty because it incorporates several factors. 1) It is voluntarily incurred by accepting the job. 2) It is facilitated by access to information, full control over the situation, professional standards of appropriate action, and training to enable understanding and appropriate conduct. 3) Consequences of not meeting the duty are likely to be very serious. 4) Finally, the patient is in a position of total-or near total reliance on his caretakers, and given the features just enumerated, it is reasonable for him to rely on the duty being met.

Thus, positive duty (often) moots causal issues. Are Rachels’ cases relevantly similar to the hospital cases? If a family or caretaker relationship is implied in the cases, all the same factors are present although virtually all of them will assume a vaguer form. This is not to say that Rachels’ argument is not important. It is very important indeed, but it does not establish the Equivalence Thesis.

What it does establish, along with the other considerations just reviewed here is that even if causation is relevant to moral responsibility, it is clearly not decisive in all cases. Other factors such as being in control, harm being intentional, and the factors associated with special positive duty are often more significant, and are certainly sufficient to establish responsibility without causation of harm. The problem this raises is that where these other factors are present, the significance of the causal factor may be very difficult (or impossible) to determine.

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V. Due Care and Reckless Disregard

I suggest, then, that the interesting comparisons for determining the significance of cause are those which do not involve either intentional harm or special positive duty. Among these will be comparisons of the failure to aid with forms of negligence or recklessness. Negligence a n d recklessness are violations of the duty of due care. Due care assumes that a basic regard for the well being of others is owed by anyone to anyone else who is likely to be affected by his conduct. It prohibits creating unreasonable risks which cause h a r m to others. It refers to carelessness, thoughtlessness, or disregard for the welfare of others in the conduct of one’s own affairs. It requires thought: attention to one’s surroundings, anticipation of likely consequences, reasonable precautions for the safety of others, and sometimes, caution or restraint of one’s own actions. Furthermore, it applies either to ac t s or omissions which consti tute unreasonable risks of harm.

Negligence, basically, is risky conduct (whether act or omission) engaged in by a person who is not thinking about (or not aware of) the probable consequences in a situation in which any reasonable person would anticipate such consequences. Mr. Green runs a stop sign because he is preoccupied and does not see it. But any reasonable driver would pay attention.

By contrast , recklessness is tak ing a known risk. Recklessness is an omission or action taken in conscious disregard of a substantial risk of probable consequences which a reasonable person would not take. Mr. Black runs a stop sign because he is late, so he takes a chance that he can beat the next car across the intersection. A reasonable driver would not take that chance.14

Again, I have used rather legalistic terminology and legal categories here, but I think they correspond to moral intuitions. Even without reference to legal institutions, the kind of conduct described is what is generally viewed (and frowned upon) as negligent or reckless. In law these categories apply only to creating an unjustified risk which results in harm or damage. Morally speaking these limits are not so clear. The interesting question, then, is what (if anything) is the moral difference between creating a risk and not preventing one, that is, allowing one to persist? We shall focus on recklessness here because it seems to provide the best fit with the clearest cases (if such things are possible) of culpable omission.

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It may be noted that the act-omission distinction in many formulations (e.g., bodily movement versus no bodily movement) is not especially helpful with this problem because the problem largely involves continuous courses of conduct, complex activities, or social practices (driving a car, constructing a building, repairing a road, etc.) which involve combinations of acts and omissions, where the combination is important. So narrow constructions of the act-omission distinction provide no insight into the nature of the obligation. In this regard the Equivalence Thesis seems to hold up. That is, whether some occurrence is construed as an act or an omission appears to add nothing intelligible to the consideration of responsibility for harm. It is simply irrelevant.15

Indeed, in some respects the act-omission distinction obscures more than it illuminates continuous courses of conduct, since the nature of the activity may be obscured by breaking it into constituent elements of act and omission. We wind up with problems of ac t description and act individuation.16 Just what is the unit to be described? Is Mr. Black’s infraction reckless driving or the failure to apply his brakes? Should anything turn on whether the case is described as an act or an omission?17 This problem not infrequently results in distorted descriptions of circumstances and odd or arbitrary sounding conclusions, for example, in court cases. On the other hand, if the act-omission distinction is construed in terms of causing versus not preventing harm, or creating a risk as opposed to not preventing one, we seem to have a distinction that makes a difference. But what is that difference; is it an illusion? One value of the Equivalence Thesis is that it challenges us to reexamine our intuitions about such matters. So let us consider now two cases of recklessness, one clear case and one arguable case.

Shore is playing baseball in the park, although there are small children about. He sees a small child running toward him just as the pitcher delivers a high fast ball. He figures that the pitch is rather high and the child is rather short so he can probably swing and still miss her, but unfortunately it turns out that he is wrong about that. He hits the child with the ball bat and she dies.

What is the nature of Shore’s infraction? Shore was reckless. He was not malicious. He intended no harm, but he took an unjustified risk with someone else’s life-a risk a reasonable person would not have taken. He unreasonably risked the well being of someone else by ignoring the substantial probability

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that harm-serious harm-would result in such circumstances.

Why would a reasonable person not take such a risk? If both the probability and the magnitude of the harm involved in a choice (or activity) are high, the choice represents a bad gamble unless it is clearly offset by the benefit to be obtained. If the gamble is with someone else’s interests rather than one’s own the intended benefit must be especially great in order to justify taking the risk (e.g., a benefit as important as one’s own life, or preventing a disaster). Aperson may be willing to take a bad gamble with regard to himself, and that is his own business, although many would call him irrational. But the duty of due care requires that people not take bad gambles with the welfare of others. Such conduct is unreasonable in the sense that it is irresponsible. It disregards the fact that one lives in a society populated with others whose safety must be considered, and considered seriously. It is irresponsible to engage in activities while disregarding the circumstances which surround the activity.

Furthermore, it is Shore’s own activity which creates the risk. This is a standard case of recklessness because Shore created an unreasonable risk which resulted in harm to another. Now let us compare this to a case of failing to aid in an emergency.

This is the case of Swift, the jogger. He is jogging down a hill, listening to the Red Sox game on his Walkman, and munching Fritos, when he sees a child floundering in a swimming pool. He watches her struggle for two or three minutes as he approaches. No one else is around. As he jogs by he sees her go under for the second time. It is clear to him that she is in trouble, and it is reasonable for him to assume that he could pull her out, although he would get his Nikes wet. But he does not want to get involved, so he keeps going, hoping someone else will come along. No one else does come along and the child drowns.

It seems to me that there are a number of relevant parallels between these two cases. Both men take a calculated risk. Swift takes the risk that someone else will come along. Shore takes the risk that he can miss the child. Neither risk is reasonable given the probabilities, the magnitude of the harm involved, and the benefit to be obtained (or the cost avoided). Both men are aware that substantial harm is a possible (and perhaps even a probable) consequence of that risk, if it comes out wrong. Neither desires the harm, but neither is willing to alter his conduct (even slightly) in order to avoid it. Both disregard the well being of another person in circumstances

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over which he (the agent) has control. That is, in both situations, it is the agent’s option (and not the victim’s) to eliminate the peril if he chooses to do so. It is someone else, someone in close proximity to the agent, and not the agent who is at risk. The magnitude of the harm is very high in both cases. Both require some alteration of conduct (some restriction on the freedom) of the agent. If, as I have argued elsewhere18 both cases involve the violation of a duty, then there is only one factor which distinguishes the two cases. Shore creates the risk but Swift does not.

VI. Creating Risks and Not Preventing Them

The question to consider now is how significant are these factors of due care and negligent disregard for the welfare of others? Are they overriding like considerations of intentional harm and positive duty? It may be noted that Husak’s factor of being in control is clearly met in these cases, as are all the factors of reckless conduct.

It seems to me that when these factors are considered, Swift’s blameworthiness is unquestionable. Is it equal to Shore’s? That is a very difficult question. It is like asking whether assault is equivalent to robbery. None of this conduct is excusable. Whether the blameworthiness of any two cases is equivalent will depend on all the factors taken together. No single factor does it all. Some may feel that Swift is more blameworthy than Shore because they think the certainty of harm is slightly higher in Swift’s case. Others may think that Shore is more blameworthy because he is, himself, the origin of the hazard. Still others seem to feel that Swift was more blameworthy because his mental state was more culpable, that is, Swift merely hoped without grounds that someone else would take control of a situation he intentionally avoided, whereas Shore (erroneously) believed that he was in control of a situation that was not an undue danger. Obviously intuitions differ, and they seem to turn on a variety of factors. In any case it is quite clear that morally speaking, causation is not decisive. Does it follow that it is irrelevant? I do not think so.

Suppose that another jogger, Swerve, had knocked the child into the pool as he jogged by. It seems to me that he would have a stronger responsibility to get her back out, and consequently would be more blameworthy (than Swift was) if he did not. Suppose we asked him why he did not rescue the child, and he replied, “I knew that Swift was coming along behind me and I figured that he would get her out.” I think

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no one would accept such a n excuse. But if Swift said, “I did see the child, but I thought there was someone behind me who would would pull her out.” I believe it is still a poor excuse, but probably more acceptable than in Swerve’s case. I cannot see any explanation for this intuition other than to say that we consider people more responsible to correct risk or harm they cause than to correct risk or harm they do not cause. But is that assumption reasonable? There are several possible arguments to support it.

A traditional one relates to the strength of negative duty. Creating a risk relates to negative duty, since it interferes with the ability of individuals to conduct their own affairs. For those who believe that negative duty is an especially powerful moral consideration, it follows that creating a risk is more blameworthy than not preventing one, all other things being equal.

An argument could also be made regarding the distribution of social burdens. It could be argued that the most reasonable distribution of social burdens is to hold people most strictly responsible for their own activities since they are in the best position to exercise control over precisely those activities. This may also be the most effective distribution of burdens. This is far from conclusive, however, since, as stated, it could easily apply to Swift. Just as a motorist can be charged with leaving the scene of an accident, Swift can be viewed as running away from a correctible emergency. Furthermore, it is clear that he is in control if anyone is. On the other hand, there is an intuitive distinction between Swift, who stumbles onto a crisis already in progress, and Swerve (or Shore) who create the crisis. The creator of the risk has control over the very existence of the hazard. By regulating his behavior he can prevent the problem from coming up at all.

Finally, to hold Swift responsible is to impose a higher standard of responsibility. Swerve and Shore are being held responsible for their own conduct as it affects anyone with whom they come in contact. Swift, on the other hand, is being held responsible for everyone’s conduct with whom he comes in contact. That is a stricter standard, which is not to say that it should not (ever) be imposed, but only to point out one difference that the causal consideration makes. It can be and has been used as a limit on responsibility. Perhaps that limit has been too narrow, but eliminating it, nevertheless, broadens the scope of responsibility and limits the scope of freedom.

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VII. Conclusion The basic point made here is that many factors are relevant

to assessing moral responsibility. It is probably best to view them together as much as possible. Such elements are likely to be interactive, that is, they may add to or subtract from one another in various combinations. For example, intending harm and being in control may work together. Similarly, the factors associated with special positive duty may be interactive. Likewise, the elements of recklessness and requirements of due care may add up to an assessment of responsibility in which cause is a relevant factor but not a necessary condition. Exploring these interconnections may be a fruitful way of approaching problems of assessing responsibility for omissions, and possibly for other assessments of responsibility as well.

There is no good reason to view any single factor as decisive over all, and certainly no reason to view causation as such. Clearly, causal considerations are overriden by other factors in some cases. But it does not necessarily follow that it is irrelevant even in those cases. More importantly, it certainly does not follow that if it is irrelevant in some cases, it is irrelevant in all. On the other hand, it also does not follow that if it is relevant in some cases it is significant in all. A middle view is more plausible. But a middle view can only be adopted by considering all factors to see how they affect one another. The suggestions here are just a beginning.

Finally, it is generally unhelpful to view these causal issues in terms of equivalence. The debate over equivalence leads to extreme views which are both unenlightening and implausible. A better approach is one which has the capacity to explain reflective moral intuitions, and considered legal practices with an eye to providing guidance toward needed revision. Considering the significance of causation in the light of other relevant factors is a start on such an approach.19

NOTES

Buch v. Amory Mfg. Co. 44 Atl. 809, at 810 (1897). In Anglo-American law, the traditional view is that so long as there is no special duty, such as a parental or contractual duty to act on behalf of another, a person is liable only for harm he causes and not for harm he declines to prevent. See, e.g., Salmond, J.; 2Salmond On Jurisprudence, ed. Williams, G., 7th ed., (1957); or Dobbs, Torts and Compensation (1985). This is the dominant common law view to date. Although there has been a good deal of controversy over the doctrine, and some legislative action (e.g., in Vermont, Minnesota, and Massachusetts) has created some legal duties to report crimes and to aid in emergencies in some states, legislative incursions on the traditional view have been small and weak.

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2 Macauley, Lord Thomas; “Notes on the Indian Penal Code,” Works, vol. 7, (1897), is perhaps the classic statement of the divergence of law and morality regarding the responsibility for omissions. It has been followed in numerous cases and commentaries, (as illustrated by Buch v. Amory) and is still the predominant position. One might wonder why such a doctrine should hold so strongly, and if one does wonder, the answer will not be found in the law. The only legal answer is historical precedent: we did not impose liability before, so we have no grounds to impose it now. The common law is settled.

3 See, e.g., Mack, E.; “Bad Samaritanism and the Causatioin of Harm,” Philosophy and Public Affairs, vol. 9, no. 3, (1980). See also Epstein, R.; “A Theory of Strict Liability,” Journal of Legal Studies, 2, (1973).

4 E.g., Glover, J.; Causing Death and Saving Lives (1977). This is a commonly held position; see also Feinberg, J.; Harm to Others (1984); Singer, P.; “Famine, Affluence, and Morality,” Philosophy and Public Affairs, no. 1, (1972); Rachels, J.; “Killing and Starvingto Death,”PhiZosophy., Ap., (1979), and elsewhere; or Hams, J. (1980); among others.

5 Hams, J.; Violence and Responsibility (1980). 6 Smith, P.; “The Concept of Allowing,” The Southern Journal of

Philosophy, Summer (1984); also cf. von Wright, G.; Norm and Action (1963) on “refraining”; or Green, O., “Killing and Letting Die,” American Philosophical Quarterly, July, (1980); or Walton, D., “Omitting, Refraining and Letting Happen,” American Philosophical Quarterly, October (1980); and elsewhere.

7 Husak, Douglas; “Omissions, Causation, and Liability,” Philosophical Quarterly, vol. 31, no. 121, (1980) also notes this point.

8 Rachels, James; “Active and Passive Euthanasia,” New England Journal of Medicine, January (1975).

9 See Kamm, “Harming, Not Aiding, and Positive Rights,” Philosophy and Public Affairs, Spring (1986), for an interesting treatment of Rachels’ cases from the perspective of rights.

10 Husak, op. cit. note 7. 11 Frankly, it seems to me that the blameworthiness of Smith and Jones

turns, just as Rachels argues, on many factors, and primarily on their respective mental state or attitudes, as well as background considerations. I can imagine a scenario in which Jones, for his cold blooded indifference to suffering and death, is more blameworthy than Smith, who passionately kills his cousin as an act of desperation to save his business and family. There are two points here. The first is that blameworthiness turns on the assessment of many factors, and we have (as yet) no good reason to eliminate causation from the list. It is one factor among many to be considered. The other point is that even if we do not hold Smith and Jones equally liable, we may still hold them both (unequally) liable. Who is more liable will depend on how all the factors add up.

12 The use of “special positive duty” here is simply the standard use which refers to a specifiable duty owed by a specifiable person or persons to another specifiable person(s) in virtue of some special relationship, whether natural (e.g., parental) or conventional (e.g., contractual). This is contrasted with general duties which are owed by all to all persons (e.g., the duty not to harm).

13 My point here is that although special positive duties must be clearly specifiable to exist, they need not be specified explicitly in all cases. We may build requirements of special positive duty into our reasoning about a case where special positive duties are implied by the facts of the case. This may not cause problems for issues of euthanasia, which were Rachels’ primary objective, but it does raise questions about generalizing to other kinds of

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cases. Like intentional harm, special positive duty is a powerful moral consideration which clearly overshadows causal issues in some cases.

14 See, e.g., Model Penal Code, American Law Institute, (1956); or Restatement of Torts, American Law Institute, (1934).

15 Bentham, J.; Introduction to the Principles of Law and Morals (1789). Bentham defined acts and omissions in terms of the presence or lack of bodily movement. This view is standardly followed in law, and by many philosophers as well. See, e.g., Morillo, C., (1977); or Dinello, D., “On Killing and Letting Die,” Analysis, vol. 31, (1971).

16 There is a voluminous literature on the problem of individuating actions. The problem here is simply a particular case of the general problem. See, e.g., Davidson, “Actions, Reasons, and Causes,” Journal of Philosophy, LX (1963); or “Causal Relations,” Journal of Philosophy, LXIV (1967); or Danto, “Actions and Events: The Problem of Individuation,” American Philosophical Quarterly, no. 12 (1975); among others.

17 Morillo, C.; “Doing, Refraining, and the Strenuousness of Morality,” American Philosophical Qwrterly, vol. 14, (1977). the actus reus requirement for criminal liability is another ground for restricting responsibility, which I suggest, has a “moral overflow” similar to the traditional view of causal limits. Bodily movement is a persistent but dubious defining feature of action which, unfortunately, cannot be discussed here.

18 Smith, P.; “The Duty to Rescue and the Slippery Slope Problem,” Social Theory and Practice (forthcoming).

19 Research for this paper was made possible by a Fellowship from the Mellon Foundation. I am also much indebted to the participants of the Harvard Colloquium for many helpful comments on an earlier draft.

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