GEORGIA LAW REVIEW - StephanKinsella.com

19791 HUMAN RIGHTS 1429
for statuses or involuntary fits which bear no marks of personal
responsibility. 153
The derivation of the moral principles of obligation and duty
clarifies the proper interpretation of the action-omission distinction
in the interpretation of actus reus. In general, Anglo-American
criminal law attaches criminal liability for omissions only in the
presence of special circumstances of status (parent-child), contract,
assumption of risk by having caused the danger or having begun to
render aid, and the like;154 and recent moral theorists, like Ep~teinl~~
and Pil~n,'~~ have suggested that this narrow limitation on criminal
liability rests on a moral value, namely, that we bear responsibility
only for what we cause by our actions, not, in general, for our failures
to act. Both Anglo-American law and the moral theorists are
wrong. From this point of view of treating people as equals, there is
no morally fundamental distinction between actions and omission~;'~'
in both cases, the morally relevant feature, which would be
recognized as such by rational persons or universalizers whether on
the giving or receiving end, is the small cost of compliance and the
fundamental goods thus secured to When the costs of compliance,
even with moral imperatives forbidding actions, are disproportionately
large compared with gains to others, either a defense
by way of excuse (duress) or justification (self-defense) is recognized.
Omissions, in moral principle, should be no differently regarded.
In particular, as Kant well rec~gnized,'~~ a general moral
duty of mutual aid, requiring supplying a great need to another (for
example, ,saving life) when at minimal cost to the agent, would be
universalized as a moral principle of obligation and duty. Accordingly,
there is no argument of moral principle to support the general
failure of Anglo-American law to recognize good samaritan duties in
contexts to which the underlying moral duty of mutual aid applies.
lsO
Surely, the technical objection regarding the difficulty of framing
appropriate standards of criminal liability in this area is not ethi-
153 Cf. Richards, supra note 152.
15' See W. LAFAVE & A. SCOTT, supra note 151, at 182-91. Cf. Hughes, Criminal Omissions,
67 YALE L.J. 590 (1958).
L55 See Epstein, supra note 73.
I" See Pilon, supra note 73.
15' Cf. C. FRIED, RIGHT
217-30 (1978).
15R See D. RICHARDS,
AND WRONG
17-20,108-31(1978); A. GEWIRTH, REASON
A THEORY OF REASONS FOR ACTION 185-89 (1971).
15g See I. KANT, FOUNDATIONS, supra note 51, at 41.
IB0 Cf. D. RICHARDS, THE MORAL CRITICISM OF LAW 221-24 (1977).
AND MORALITY