Criminal Omissions
![handle is hein.journals/hlr55 and id is 671 raw text is: CRIMINAL OMISSIONS
CRIMINAL OMISSIONS *
T HOUGH it is a well-established principle in criminal law
that liability may arise from omission as well as commis-
sion,' it is often problematical just what circumstances give rise to
such liability.
On the threshold of the history of criminal omission we en-
counter the controversy over the interpretation of D.5o.I7.1o9:
Nullum crimen patitur is, qui non prohibet, quum prohibere non
potest. Mommsen's incidental interpretation2 involves an as-
sertion that omissions in general are not punishable. This view
has been challenged by Honig, who interprets this passage as re-
ferring to the legal status of a person who, though able to defend
himself against an assault, fails to do so.' But though neither the
Roman law nor any of the later codifications up to the end of the
eighteenth century took up the question of how far omissions
should be made generally punishable,4 the doctrine was developed
in many specific cases involving the problem. The Roman law,
for example, penalized homicide brought about by means of wilful
starvation,' or by failure to complete a surgical operation.' The
latter problem, incidentally, reappears frequently in the history
of criminal law.' The doctrine of the Church and the canon law
* The writer is indebted to Professor Jerome Michael, Columbia Law School,
for his helpful comments.
1 ,Omissio pari passu cum commissione et actione positiva ambulat, in the
apt phrase of the eighteenth-century German criminologist, Bi6hmer. BOLDT,
JoHANN v. O3M6ER UND DIE OGEMMINECUTLICHCE STAATSRECHTSWISSENSCHAFT (1936)
289 (hereinafter cited BOLD); cf. 4 BL. CoMM. *5; INDIAN PENAL CODE (I86o)
§ 32: In every part of this Code except where a contrary intention appears from
the context words which refer to acts done extend also to illegal omissions.
2 MOMMSEN, R6imxscnEs STRAFRECET (1899) 91.
3 Honig, Zur Frage der Strafbarkeit der Unterlassung irn romischen Recht in
FESTSCOHIFT FV HEILFRON (i93o) 63.
4 See the careful study by Honig, Die Entwicklungslinie des Unterlassungsdelikts
vom rimischen bis zum gemeinen Recht in FESTGABE ifih R. SCHMIDT (1932) 3, 29.
SD.2534. Necare videtur non tantum is, qui partum perfocat, sed et is...
qui alimonia denegat . . .
Is D.I.i8.6.7.
7 See BOLD? 293; HoLmES, TEm CommoN LAW (188i) 278. Other instances
include assimilation of omission to positive action in case of illegitimate coining:
1942]](ViewImageLocal?handle=hein.journals/hlr55&div=45&collection=&method=preview&ext=.png&size=3)
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