ABSTRACT
Anglophone criminal law operates with the view that a necessary ingredient of something that can be criminally punished is an act or omission, where an act is a willed bodily motion and an omission is the absence of such an act by someone who had the ability to perform it. So, the law operates with the view that an agent is just a creature capable of acting and omitting. However, as is explained here, the law operates also with a concept of agency with respect to a particular event, where that is a matter of degree: one can be more or less the agent of a particular harm; the harm can be more or less one’s doing. It is explained here that the law’s peculiar and elusive doctrines of “proximate causation” encode a view of agency-of. Through its doctrines of proximate causation, the law draws a line between those who are more and less active with respect to the violation of a legally protected interest and then predicates important differences in government treatment of the parties involved on that classification. This is explained through examination of the relevance to liability of the central tenets of proximate causation doctrine: cause-in-fact, reasonable foreseeability and the absence of voluntary intervention.
