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Beyond acts and omissions: remark-able criminal conduct

Dsouza, M; (2021) Beyond acts and omissions: remark-able criminal conduct. Legal Studies , 41 (1) pp. 1-18. 10.1017/lst.2020.44. Green open access

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Abstract

I argue that instead of analysing a criminal offence's conduct element in terms of acts and omissions, we should ask whether the defendant has belied a contextually salient expectation as to how she should, or routinely would, conduct herself. Slightly different sets of expectations are salient depending on whether our interest is in questions of criminalisation, or the proper interpretation of existing offences, but the criminal law is normally interested only in conduct-tokens that belie a relevant expectation. Belying such an expectation need not itself suggest culpability, but it does mark out the conduct as remark-able, in the sense of being ‘worthy of remark’. I argue that this ‘Remark-able Conduct Requirement’ (RCR) analysis helps us narrow the field of conduct-tokens that are normatively appropriate candidates for criminalisation, and when adapted for use in interpreting existing offences it: (a) generates familiar and plausible liability outcomes; (b) simplifies the application of the law; (c) offers a principled argument to limit the scope of offences drafted in overly broad terms, by excluding innocuous doings from potential criminal liability; and (d) suggests ways to make progress on philosophical puzzles about how we should conduct ourselves.

Type: Article
Title: Beyond acts and omissions: remark-able criminal conduct
Open access status: An open access version is available from UCL Discovery
DOI: 10.1017/lst.2020.44
Publisher version: https://doi.org/10.1017/lst.2020.44
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
Keywords: acts, omissions, criminal conduct
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10115937
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