PROVIDING A CONCEPTUAL FRAMEWORK

What does it mean to say “A failed to do s?” or “A omitted doing s?” I will treat these two propositions as equivalent for present purposes. Namely, they are general statements of omission that do not imply consciousness or intention, although neither precludes such ideas. Accordingly, I suggest as a generic representation of omission that:

These conditions are individually necessary and jointly sufficient for failing to do s, that is, for simple omission in general. While i is obviously necessary to distinguish omission from positive action, ii is necessary to distinguish omission from simple nonaction. Together, i and ii are sufficient for omission in its generic form.

Notice that if this is correct, the most fundamental element of omission (beyond the fact of nonaction), its primary distinguishing feature, is normative. A standard of reasonable expectation is obviously a standard of evaluation, and it is the only thing that distinguishes omission from simple nonaction. This is clear if the definition of unintentional omission is made explicit:

This illustrates the idea that there is no positive act and no thought or intention by which to distinguish omission from simple nonaction in the case of unintentional omission. There is only a standard or pattern of human conduct, the deviation from which turns nonaction into omission by attaching it to a particular agent within a specific context. It is this connection that ultimately provides the needed link to agency and responsibility.

Several philosophers have suggested longer lists of necessary conditions.²

I will argue here that where these additions are helpful and informative, they are best viewed as expansions of the basic condition of reasonable expectation set out in DI and DII.

Feinberg, for example, lays out the following list of implications. (I substitute my variables here for consistency):

³

But even if Feinberg is correct that all this is implied in the statement “A omitted to do (or failed to do) s,” implications 1 and 5 are still necessary and sufficient conditions for failing to do s, because 2, 3, and 4 (if they are in fact necessary) are all implied in 5.

If these are necessary conditions of omission, why would this be so? Obviously it is not reasonable to expect A to do s if A has no opportunity to do s, has no ability to do s, or has no way to know or no reason to believe that doing s is a possibility. In other words, it is not reasonable to expect A to do s if it is impossible for A to do s. But notice that the nonaction of the agent does not change here. What is counteracted by these conditions is the norm: the reasonable expectation becomes unreasonable in the face of impossibility. But if the norm is gone, then so is the omission. There may be extenuating circumstances, but if so, these would count against recognizing possibility (i.e., ability, opportunity, or knowledge) as a necessary condition of omission in the first place. Why? The best explanation is the one I give above: the nonaction does not change in these cases; the norm changes. Therefore, ability, opportunity, and knowledge are (at most) necessary conditions of the reasonable expectations (or norms) that create omission out of nonaction. (This, of course, would still make them necessary conditions of omission by transitivity.)

It may be worth noting that conditions 2, 3, and 4 all speak to the question whether A can do s or could have done s, and that is a very useful set of questions to ask. However, I suggest revising and reorganizing Feinberg's list as follows:

⁴

Any definition of unintentional omission will be controversial, but the general organization offered here has certain advantages. First, it makes clear that the only conditions necessary and sufficient for simple unintentional omission are that A did not do s, and did not think of doing s, and that it was reasonable to expect A to do s. That is useful because it lays out the basic elements starkly.

Second, it shows that the claim “it was reasonable to expect A to do s” carries a heavy load of highly complex implications. That is also useful because we should have no illusions about the complexity of such a claim. As organized, conditions a, b, and c are expansions of 3. They fill out what it means to claim that it was reasonable to expect A to do s. It should also be clear that these conditions may conflict with one another, and beyond that there can be other conflicting norms relevant to assessments of reasonableness.⁵

Since I have discussed conditions b and c at length elsewhere, I restrict my discussion here to condition a.⁶

POSSIBILITY, RESPONSIBILITY, AND NEGLIGENCE

Condition a is controversial in several ways. Is it a necessary condition of unintentional omission that the agent who failed to act could (or should) have done otherwise and knew (or should have known) it? A variety of views have been offered on these questions.⁷

I am tentatively suggesting:

This will require a good deal of unpacking. It differs from accounts like that of Feinberg and Kleinig primarily in the addition of the phrase “should have been able to do,” a small phrase that makes a big difference.⁸

Many accounts do suggest (like Feinberg and Kleinig) that it is a necessary condition of omission that the agent who failed to act could have done otherwise, that is, could have performed the act.⁹

A common starting point for analysis of “A could have done s” (or “A can do s”) follows J.L. Austin's view that it means A had the ability to do s, or the opportunity to do s, or both.¹⁰

Feinberg's formula, for example, reflects what Austin called the “all-in can” by noting that it must be the case that A has both the ability and a reasonable opportunity to do s. To extrapolate from some of Feinberg's examples on the point, consider the following.

If Baker drowns off the Atlantic City shore because no one responds to his cries for help, we must be able to distinguish Charles, a champion swimmer practicing in a pool in San Francisco, from Abby, the lifeguard on duty in Atlantic City and Donald, a nonswimmer playing beach volleyball twenty feet away. Charles may have the ability to save Baker but he has no opportunity to do so. Donald has the opportunity but no ability. Only Abby has both ability and opportunity (and a special positive duty besides.) And only Abby failed to save Baker. It was reasonable to expect her to do so, and it would not be reasonable to expect Charles or Donald to do so. These are clear cases. They show how nondoing is distinguishable from omission by showing how omission is attributable to a particular agent in virtue of what it is reasonable to expect in particular circumstances. And they seem to support the claim that ability and opportunity are necessary conditions of omission, or at least of the reasonable expectations that create omission.

The major problem with these examples is that they refer to a complex omission: not rescuing Baker or not preventing his drowning.¹¹

Ability and opportunity are certainly relevant to complex omission—to whether an agent let something happen or failed to prevent it. But to provide a basic account of negligent omission as such, we need to focus on the omission itself, not its consequences. To do that, we need to restrict our analysis to the features of simple omission, which means Baker should be out of the picture.

Just to keep that clear, let us rephrase the issue as whether Abby kept a diligent watch over the water. She had an explicit duty to do that, so not doing it is presumptively an omission, since it is reasonable to expect her to do her duty. So not guarding the water is an omission for Abby. Does it require ability and opportunity? Arguably, yes, although it is much less salient than it is in the failure-to-prevent cases. Abby should still be distinguishable from Charles in San Francisco, who still has no opportunity to guard the shore, and from Donald, who is still unable to do so. Ability and opportunity are in some sense necessary conditions here (although clearly not sufficient ones). If an agent has no ability or opportunity to act, then acting is impossible in that case. If acting is impossible, an agent cannot be held responsible for not acting—thus possibility is a necessary condition for agency and consequently for responsibility for agency, or so it is argued. But, this is exactly the claim that Harry Frankfurt denies, at least as a necessary condition. Furthermore, this account is not adequate to explain excusable, justifiable, or negligent omission.

Suppose that Abby is asleep on the job. There is a sense in which she has no ability to guard the water. She certainly could not do it in her sleep; but no one will excuse her for that, because she should be doing her job. She culpably disabled herself by falling asleep on duty. So we hold her responsible, consider her nonaction to be a culpable or negligent omission, and say that she should have been able to guard the water.¹²

Where the loss of ability or opportunity is culpable, at least when it is reasonable to say that the agent was responsible for it, negligent omission may occur without ability or opportunity at the time.

What about the nonculpable loss of ability or opportunity? Suppose that Abby suddenly got a serious cramp in her leg, making her unable to do her job. Is it still an omission, although of course, not a culpable one? It seems so, because, while it is reasonable in ordinary circumstances to expect her to do her duty, it is not reasonable to expect her to be able to avoid such an inability. Thus an excusable omission represents a conflict of standards, one of which generates the omission (because it is violated), and the other of which excuses the violation. This occurs when the basis of the omission is the violation of a duty, general obligation, or custom that would cause undue hardship or is impossible for the agent to meet. Justified omission is structured in the same way: as a conflict of standards. The impossibility lies in not being able to meet both standards; the justification follows from making a justified choice between them.¹³

But consider what this means. Both cases seem to undercut the requirement that Abby could have done otherwise, at least at the time.¹⁴

That means that ability and/or opportunity are not necessary conditions, at least not in a straightforward sense. Hence my suggested qualifications.

To say Abby could have done s in ordinary circumstances accommodates the idea that but for special circumstances beyond the control of any normal agent, Abby could have guarded the water. This allows for excusable omissions by distinguishing Abby's case from the cases of Charles and Donald, which are not cases of omission at all.

To say that she should have been able to do s is to push the claim that Abby did not do s when she could have to a second-order level of evaluation that enables us to account for negligent omissions that involve culpable inabilities or at least inability (or lack of opportunity) for which the agent is responsible. Consider the following pair of cases, in neither of which the agent could have done otherwise.

Suppose that, unknown to Abby, the volleyball players are conspiring against her because Edna, a team member, wants her job. So they agree that if Abby does not fall asleep in a short time, they will drug her soda to ensure that she will fall asleep on the job and consequently get fired. Now, as it turns out, they do not have to do their dastardly deed, because Abby snoozes off in the warm sunshine within five minutes entirely on her own.¹⁵

Is it still a case of culpable omission? Abby could not have done otherwise. If she had attempted to exercise self-discipline to keep awake, she would have been drugged. So does that change our assessments? Presumably not, and that seems to be because the potential intervening factor does not materialize.¹⁶

The potential condition does not in fact affect the conduct of the agent or the outcome.¹⁷ So the assessment remains the same: the case is an instance of negligent omission.

By contrast, imagine the same scenario as the case above, except that Abby does not fall asleep until she is drugged. Is that still a case of culpable omission? Clearly not, and that is because the intervening factor does materialize and does, in turn, affect the conduct of the agent and the outcome. This suggests that the salient factor is not whether the agent could have done otherwise in the abstract but whether a specifiable intervening factor accounts for the conduct of the agent and the outcome.¹⁸

Thus the question is whether some other factor rebuts the initial presumption in Abby's case and specifically whether it is not reasonable to expect her to have done her duty unless she could have done it. The three test cases provide reasons why Abby could not do her duty: (1) she was drugged by malicious volleyball players; (2) she fell asleep; (3) she was disabled by a serious leg cramp. Consider what each case reveals.

The first case is the clearest. It is not omission, since there is no agency in a case of unconsciousness due to unforeseeable external forces. This reinforces the idea that omission is a form of agency.

Case 2 is more difficult but it is a clear case of negligence. Abby fell asleep on the job. Bob forgot an important meeting where everyone was counting on him. Carla did not see the stop sign. All are negligent omissions. But in what sense could these people have exercised control over what they did not think of, see, remember, or realize?

Where negligent (that is, unintentional but culpable) omissions are involved, the concern is not whether the particular individual in the specific case at hand could have done otherwise at the time. When we say Abby, Bob, and Carla should have been able to do other than what they did, two things are implied. First, any normal person can and would do this sort of thing in ordinary circumstances, and second, the agent (e.g., Abby, Bob, or Carla) is a normal person.

But of course, if any normal person could do otherwise, and Abby, Bob, and Carla are normal persons, then it follows that they could do otherwise. In what sense is that true? The general point here is that competent adults should be able to meet minimal standards of normal behavior. So if the reason for the omission is the failure to meet ordinary standards of normal behavior, and the agent is normal, she will be held responsible even if she could not have done otherwise on that particular occasion. So the point is not that the specific individual could have done otherwise at the time but that the specific individual could have done otherwise in general.

This idea has been represented in action theory by noting that if A fails to do s at time t, then necessarily A can do s at t, or at some earlier time t* A can do s. This formula would account for either negligent or excusable omissions and it seems initially plausible. But it cannot account for all cases. It could not, for example, distinguish Carla, who failed to notice the stop sign, from Corry, who is blind but became blind only last week. Consequently, the temporal reference will not supply the needed explanation. So I think the general point cannot be made more specific. The general point illustrated by negligent omission is that even if the particular individual could not have done otherwise on that particular occasion, he or she could have done otherwise in general. That is, the agent's own deficient (usually careless) behavior is what made it subsequently impossible to meet normal standards of conduct.

Now consider case 3: excusable (and by extension, justifiable) omissions. Do they work in the same way as negligent omissions? The answer is that they do, more or less. Reconsider Abby, Bob, and Carla. Abby was disabled by a cramp (excusable omission). Bob forgot his meeting only because on his way there he witnessed a terrible accident and was busy providing emergency aid (justifiable omission). Carla did not see the stop sign only because it was hidden by a large bush (excusable omission). Life, it seems, is full of hazards.

These failures are still omissions because it is reasonable to expect people (in general) to do their jobs, keep their promises, obey the law, and meet their obligations. But in some cases there may be extenuating circumstances that excuse or justify people not meeting the general norms that make these nondoings into omissions.

Thus excusable and justifiable omissions are distinguishable from negligent ones in that the former involve impossibility for which the agent is not blameworthy, and the latter involve impossibility for which the agent is at fault. But in both cases, these are omissions because even though these individuals could not have done otherwise at the time, they could have done otherwise in general, and in general it would be reasonable to expect them to do so. In the case of excusable or justifiable omission extraordinary circumstances undercut normal presumptions of possibility and excuse or justify the omission.¹⁹

The forgoing suggests that accounts that include ability and opportunity as requirements of unintentional omission are correct only if the view is qualified by the clause “in ordinary circumstances” to provide for excusable omissions and supplemented by the second-order evaluative clause “A should have been able to do s” to accommodate negligent inability. This, given the implications noted above, is a very large and nontrivial supplement. Yet it is all necessary for a complete account.

What about the knowledge claim? Is it necessary that A knew or should have known that he could do s? This seems like a reasonable extension of the claim that A could have in ordinary circumstances or should have been able to do s. Feinberg poses the case of poor Herbert, who did not throw the drowning swimmer a life preserver only because he did not realize it was there.²⁰

He had the ability and opportunity to save the swimmer, but he just did not know it. Still, knowledge is a very strong requirement. What about poor Carla, who did not see the stop sign. She did not know it was there, so she did not know that she should stop, but failing to do so was still a negligent omission (assuming the bush died).

Kleinig suggests an alternative, weaker requirement: A had good reason to believe that he had the ability and opportunity to do s.²¹

I take this to be roughly equivalent to my earlier formulation, “A should have known.” The main question is whether the implication is normative (should have known; had good reason to know) or descriptive (did know).

My view (and Kleinig's) is that the former is what is necessary. We cannot cover Carla's case otherwise. And even Herbert's case would not preclude omission without knowledge in any circumstance. Suppose, for example, that Herbert promised that he would look out for the swimmers while the lifeguard ran a quick errand. Before she left, she carefully instructed Herbert regarding every particular he might need to know, including the important location of the life preservers. But Herbert was not paying attention at the time, and only because of that did he not know that the life preserver was right behind him. Now his failure to throw it is a negligent omission, and he still does not know that it is there but he should have.

This does seem to be the minimal condition for negligent omission, however. If the agent has no reason whatsoever to believe that he can or should do something in the circumstances, there is no omission. So it seems reasonable to conclude, pending any further information, that in order for it to be reasonable to expect A to do s, it must be the case that (roughly speaking) A could have or should have been able to do s, and an ordinary person in similar circumstances should have known it.

The overall position argued for here is no doubt controversial (and may be inherently so), but it does seem that the best way to discuss the controversy is in terms of the implications of what it is reasonable to expect of an agent. Thus, in my view, it is an advantage to organize the analysis in those terms.

WHAT IS OMISSION?

By concentrating on simple, unintentional omission, which strips the concept to its essentials, we can see that fundamentally omission is a thing left undone, which means: a deviation from a pattern of activity that violates what a reasonable person would expect to be done, paradigmatically because it leaves out an element of conduct necessary to meet a standard of normal behavior within some context or community of value construed in terms of probability and/or prescription. What does this tell us about the nature of omission? Is it something or nothing? How does it fit in the furniture of the world, and what does its ontological status imply about notions of agency or responsibility?

The analysis implies that an omission, like an act, is something done. Omission is essentially an element or a type of conduct.²²

What does this mean?

“Conduct” is a general term that encompasses a range of acts and omissions that comprise behavior. Omission, I argue, is always embedded in a more broadly describable course of conduct. Since it is contextually constituted, omission makes no sense “floating in the air” in isolation, so to speak. It must always be made intelligible within the context of a broader course of conduct, practice, or activity.²³

Albert forgot to pick up his daughter from school. What makes that intelligible as an omission is a broader context of activity within which he promised to pick her up or assumed (as her father) the responsibility for always picking her up. The omission is a behavioral gap constituted by a deviation in the surrounding activity that makes it intelligible as human conduct.

It may also be worth noting that this provides a commonality rather than a contrast with acts, which are intelligible within a context of general activity or social practice. Alasdair MacIntyre, among others, has argued that the “basic acts” (that is, willed muscle contractions) often discussed by philosophers²⁴

and legal theorists²⁵ are theoretical constructs abstracted from a broader understanding of action within social practices.²⁶ For their own special purposes Jeremy Bentham and Oliver Wendell Holmes may have defined acts as willed muscle contractions under appropriate circumstances, but without a social context, willed muscle contraction is completely unintelligible as action or conduct. For the sake of theoretical simplicity, in action theory we may be reduced to analyzing arm-raisings and finger-bendings, but these make little sense as action without a broader context of human behavior that connects them to personal preferences, beliefs, goals, habits, and so forth.

So I believe that MacIntyre is right that basic acts are really complex ones, the simplified theoretical versions being abstractions that rely on our understanding of action within a wider context. For example, this point is reflected in the work of Michael Moore on the analysis of action within the criminal law.²⁷

While finding it useful to analyze basic acts as willed bodily movement for theoretical purposes, Moore notes that no such “acts” are ever prohibited. Only complex acts are the subject matter of the criminal law (or, it might be added, any other branch of law.) Arm-raising and finger-bending are never the subjects of legal regulation in any form. In other words, action is both intelligible and regulated within a social context, just as is omission.

Thus acts and omissions are helpfully understood as factors in a broader course of conduct that provides their character and intelligibility. This analysis clearly covers legal cases involving omission: practicing medicine; selling liquor or driving a car without a license; earning income without reporting it to the income tax office; neglecting the welfare of persons (one's child, parent, patient, ward) for whom one is responsible because of the relationship one has with them; failing to do one's duty or fulfill the responsibilities of one's office. All these and all other omissions take place not in a vacuum but within a more general course of conduct, activity, or social practice. So my view is that this surrounding activity makes omission conduct—a negative element of conduct.²⁸

Yet there are unclear cases. Omission associated with property ownership is the most troublesome for the omission-as-conduct thesis. Sloppy Sue's front porch is rotting away, and she is neglecting to fix it. It is not that she is intentionally violating the law. It just has not crossed her mind to make repairs. Nor has it occurred to her that someone might fall through the rotten boards and be injured, so, of course, she has not put up a warning sign either. Is her omission part of a broader activity that makes it conduct?

Ownership itself is not conduct but a legal status. Ownership is a position one holds that confers certain rights and obligations upon one. Thus status or position can be a basis for affirmative obligations. There are obligations of citizenship, marriage, or property ownership, for example, which, in turn, can generate reasonable expectations of compliance and consequently create omissions as the failure to comply. This may seem to undercut the idea of omission being conduct merely because it is embedded (and thus part of) a broader course of conduct. But properly understood, I believe, it actually reinforces my thesis.

Ownership may be a status, but acquiring property is something that we do, as are selling, transferring, managing, or bequeathing. Ownership is a position (or legal status), but everything that the position authorizes or prohibits is conduct. Property ownership is often described as a bundle of rights and obligations, and these are all rights and obligations to do or prevent the doing of certain things. Thus these rights and obligations define what it means to participate in the social practice of property ownership. Consequently, ownership is a position one holds as a participant in a social practice. And it is the failure to comply with reasonable expectations about participation in that practice that generates omissions such as the one perpetrated by Sloppy Sue.

Furthermore, Sue does something by not taking minimal precautions to avoid dangerous conditions on her property. She violates basic standards of responsibility. Violating these very basic standards is doing something, even if it is not action. Thus action is not the only way to do things. Omission, as part of conduct or participation in a general practice or activity, is another way.

Furthermore, the extent to which ownership can be viewed merely as status or possession is limited. It is not really legitimate to subtract all the associated activities that are authorized by the status of ownership, because that is what constitutes the legal status. It is not the case that there is some mysterious essence of ownership that remains after all the authorized legal activities are subtracted from it. Rather, it is a legal status that is constituted by the set of activities that is authorized and prohibited by it. Consequently, if the owner is engaged in any of the associated activities mentioned above, then those activities make the failure to maintain the property conduct in just the same way that it does in all the other contexts discussed earlier. If Sue lives in her house or rents it out, for example, then failure to correct dangerous conditions in it is a negative element of her general conduct in regard to it.

This shows that unintentional omission is conduct—even in Sue's case, and Sue's case is the hardest case we will find. What makes Sue's omission conduct? First (at least in most cases), her omission is a negative element in a surrounding activity that constitutes her overall conduct. Second (in all cases), her omission is the violation of a social norm of reasonable behavior defined by the practice in which she participates. Thus Sue's omission is something that she does (as well as something that she does not do). It is not something that just happens to her but a state of affairs that her conduct brings about. And what she does (as well as what she does not do) is intelligible as an omission because it appears as a deviation from a normal pattern of activity that generates reasonable expectations (or norms) that define and organize the social practice or institution in which she participates, that makes her conduct (whether act or omission) intelligible. Thus omission is a certain sort of deviant behavior.

This position reflects and presupposes what has been called a social ontology that takes as its fundamental unit “individuals-in-relations” or “social individuals.”²⁹

This ontology was developed to avoid the limitations of atomistic individualism, on the one hand, and totalitarian holism, on the other, and thereby better to represent both social and individual reality. Social individuals participate in activities and practices that constitute human behavior, although participation does not determine individual behavior. Yet activities and practices make individual behavior intelligible, as I have previously described, and it also makes omission intelligible as part of conduct.³⁰

So, to return to one question posed at the very beginning of this section, are omissions something or nothing? Does the context of surrounding conduct make omission something done rather than a theoretical construct that fails to refer to anything real in the world? I want to suggest that once the overall context is established, both positive and negative factors will be necessary for the description of it as a description of the world.³¹

To illustrate, we could say that valleys might be nothing without the mountains that surround them, but as a package they are necessary for an accurate description of the terrain. Holes may be nothing without the boundaries that define and create them, but so long as the boundaries are there, holes are real and, indeed, sometimes cause damage.³²

Ontologically, then, an omission is a state of affairs brought about by an agent who deviates from a pattern of activity in a way that that violates what a reasonable person would expect to be done, specifically by failing to do what is necessary to meet a standard of normal behavior within a context that specifies normal behavior. Because of this, omission is a negative element of conduct that is necessarily attributable to a particular agent because of the agent's participation in the practice that specifies normal conduct in those circumstances. It is not necessarily action, but it is necessarily conduct: it is a particular kind of deviant behavior. It is something done, a state of affairs brought about by an agent, and that is not nothing. This makes omission clearly distinguishable from simple nonaction, which is ontologically nothing and is no part of agency or conduct. That means the first of the four elements needed to account for negligent omissions has been explained. The remaining three are topics for another time.³³