Legal Acts: Meaning, Elements and Kinds

Think of the difference between a photograph and a video clip. A photograph of a man at a shooting range catches one frozen instant: a finger closing on a trigger. A video shows that the gun was loaded, that another man was walking behind the target, and that a bullet struck him. Austin looked at acts like a photograph: the act was only the willed movement of the finger. Salmond looked at acts like a video: the act is the whole sequence the doer controls. The law needs the video, because the same finger movement can be murder, a negligent killing, private defence or no offence at all, depending on what surrounded it and what followed.

Figure: The anatomy of an act on Salmond's analysis: the origin (A pulls the trigger), the circumstances (B stands in the line of fire) and the consequences (B is killed), with the four pairs of kinds of acts and why the law looks beyond the bare bodily movement

1. The Meaning of Act in Law

In law the act is the first condition of liability. The maxim actus non facit reum nisi mens sit rea (an act does not make a person guilty unless the mind is also guilty) presupposes an act and a mental element. This note concerns the first; the mental element is examined in Notes 34, 87 and 120.

Jurists agree that an act must proceed from the will: a sneeze, a spasm or a fall when pushed is not the doer's act. They disagree about how far the act extends: does it stop at the bodily movement the will produces, or include its circumstances and results? This is the dispute between the narrow view of Austin and the wide view of Salmond.

2. Austin's Narrow View

John Austin, in his Lectures on Jurisprudence, defined acts as movements of the body consequent upon volitions. The only things we can directly will, he argued, are the movements of our own bodies; we desire a movement, and the movement follows. Everything beyond that is not the act but its consequence. His own illustration is shooting. When we say that A shot B, the phrase covers a long train of events: A raised the gun, aimed it and pulled the trigger; the powder exploded, the bullet travelled and B was wounded and died. On Austin's analysis only the muscular motions by which A raised, aimed and fired the weapon are A's act. The flight of the bullet and the death of B are consequences of the act, not parts of it (paraphrase).

Austin's reason was that consequences depend on facts outside the doer's control, so the core of conduct lies in what the will directly moves. Oliver Wendell Holmes, in The Common Law (1881), took a similar position: an act is a voluntary muscular contraction, and whether it is wrongful depends on the circumstances known to the actor and the consequences that follow (paraphrase).

The difficulty is that the narrow view does not match the way the law speaks. Statutes forbid killing, stealing and trespassing, not muscular contractions, and almost every wrong is defined by its circumstances (the property belonged to another) and consequences (death resulted). Austin himself admitted that most names of acts are really names of acts coupled with some of their consequences. Salmond turned the admission into a definition.

3. Salmond's Wide View: The Three Parts of an Act

Salmond defined an act, in the wide sense used in law, as any event which is subject to the control of the human will. The emphasis moves from the body to control. An event is my act if I could have brought it about or prevented it by my will, and the whole event, not only its first bodily step, is the act. Salmond then analysed every act into three parts.

In the shooting example, A's pulling of the trigger is the origin; the loaded rifle and B standing in the line of fire are the circumstances; B's death is the consequence. All three together make up the act of killing B. A trigger may be pulled a thousand times on a range without legal consequence; what makes this pull a homicide is its circumstances and consequences. Since every act has countless circumstances and an endless chain of consequences, the law selects the ones that matter when it defines each wrong, subject to rules of causation and remoteness (Note 34).

4. Holland on Acts

Thomas Erskine Holland, in his Elements of Jurisprudence (1880), described an act as a determination of will producing an effect in the sensible world. It needs a will, its exercise, and an outward effect. The effect may be negative: a deliberate forbearance is also an act. And the law is concerned only with external acts; a determination of will that never shows itself is beyond its reach. Holland shares Austin's emphasis on will but looks to the effect produced, and shares Salmond's recognition of negative acts.

5. Positive and Negative Acts: Omissions

A positive act (commission) is doing something: striking a blow, taking goods. A negative act (omission) is not doing something: failing to feed a child or to close a railway crossing gate. Salmond counted both as acts, because both are subject to the will.

The general rule is that there is no liability for a mere omission unless the law imposes a duty to act. A strong swimmer who watches a stranger drown in shallow water commits a grave moral wrong but, in general, no legal one (Note 88). The reasons are liberty (a duty to rescue every stranger would be oppressive) and causation (he did not create the danger). Duties to act arise from recognised sources.

Indian criminal law states the principle in its own vocabulary. Words referring to acts done extend also to illegal omissions (formerly Section 32 IPC), and a thing is illegal if it is an offence, is prohibited by law or furnishes ground for a civil action; a person is legally bound to do whatever it is illegal in him to omit (formerly Section 43 IPC). The omission must therefore be an illegal one, that is, the breach of a legal duty, before it counts as an act for the purposes of an offence. An effect may also be caused partly by an act and partly by an omission, as where a person both beats a child and withholds food from it (formerly Section 36 IPC).

6. Internal and External Acts

An internal act is an act of the mind: thinking, deciding, resolving to kill. An external act is an act of the body that shows itself in the world: speaking, striking, taking. Both are acts in Salmond's sense, but the law almost always requires an external act. Brian CJ, a medieval English judge, is reported to have said that the thought of man is not triable, since even the devil does not know it (paraphrase). Thoughts cannot be proved, most are never acted upon, and punishing them would be tyrannical.

Hence the stages of a crime: intention, preparation, attempt and commission. Bare intention is not punished, and preparation only for grave offences, such as collecting arms to wage war against the Government of India (formerly Section 122 IPC) and preparing to commit dacoity (formerly Section 399 IPC). Internal acts matter to law as the mental element accompanying an external act.

7. Intentional and Unintentional Acts

An intentional act is one whose consequences the doer foresaw and desired; an unintentional act is one whose consequences he did not intend. Salmond defined intention as foreknowledge of the act coupled with the desire of it (Note 34). The pair concerns the doer's mind towards the consequences and circumstances, not the bodily origin, which is willed in both cases. A hunter who fires at what he believes is a deer and kills a hidden man has done a willed act but an unintentional killing; his liability then depends on whether he was negligent (Note 120). Salmond's classes of wrongs follow this line: intentional, negligent and strict (Notes 34 and 85).

8. Voluntary and Involuntary Acts: The Place of Will

Textbooks add a fourth pair: voluntary and involuntary acts. An involuntary movement is one the will does not control: a reflex, a convulsion, a movement in sleep, or a movement forced by another, as where A pushes B against C. Strictly, on the definitions of Austin, Holmes and Salmond alike, an involuntary movement is not an act at all, since each makes the will essential; the pair marks the boundary of the concept. This is the root of the defence of automatism: in Hill v Baxter (1958) the court gave the example of a driver attacked by a swarm of bees who loses control of his car.

Distinguish the special meaning of voluntarily in Indian criminal law: a person causes an effect voluntarily if he causes it by means whereby he intended to cause it, or by means which he knew or had reason to believe were likely to cause it (formerly Section 39 IPC). The definition joins the will to the consequences through intention and knowledge, exactly as Salmond's analysis suggests.

9. Circumstances, Knowledge, Consequences and Foresight

Salmond's analysis pays off in the theory of the mental element. Circumstances exist at the moment of the act, so the doer can only know or not know them: a man who takes another's umbrella honestly believing it his own lacks knowledge of the circumstance that makes the taking wrongful. Consequences lie in the future, so he can intend them, foresee them, or fail to foresee them when he should (negligence). Culpable homicide requires death caused with intention or with knowledge that the act is likely to cause death (Section 100 BNS, formerly Section 299 IPC); a death caused by a rash or negligent act falls under Section 106 BNS (formerly Section 304A IPC). The origin may be identical; the difference lies in the mind's relation to circumstances and consequences.

10. Act and Legal Wrong

An act becomes a legal wrong when it violates a legal duty, and liability is the bond that follows (Note 34). The external elements of an offence, its actus reus, are simply Salmond's wide act as selected by the definition of the offence; Kenny described the actus reus as the result of human conduct that the law seeks to prevent (paraphrase). Harm and wrong do not always coincide: loss without violation of a right is damnum sine injuria (Gloucester Grammar School case, 1410), and violation of a right without loss is injuria sine damno (Ashby v White, 1703, a voter wrongly refused his vote).

11. Acts in Indian Criminal Law

The Indian Penal Code, drafted under Macaulay, adopted a broad conception of the act. The word act denotes as well a series of acts as a single act, and omission as well a series of omissions as a single omission (formerly Section 33 IPC). Words which refer to acts done extend also to illegal omissions (formerly Section 32 IPC). These definitions are carried forward in the Bharatiya Nyaya Sanhita, 2023. The Indian conception is thus closer to Salmond's than to Austin's: an act may be a course of conduct over time, or a failure to do what the law requires.

Evaluation. Austin's narrow view isolates what the will directly controls and so explains why involuntary movements are excused, but it is too thin to describe a law that never forbids bare movements. Salmond's wide view fits the structure of legal wrongs and gives each mental element a place. Modern criminal law takes from both: it requires a voluntary origin (Austin) and defines offences by circumstances and consequences (Salmond).

12. Frequently Asked Questions

Q. What is the difference between Austin's and Salmond's view of an act?
A. Austin confined the act to a bodily movement produced by the will and treated circumstances and consequences as outside it. Salmond defined an act as any event subject to the control of the will and included its origin, circumstances and consequences within it. Salmond's view matches the way the law defines wrongs.

Q. Is an omission an act in law?
A. Yes, a negative act. But it attracts liability only where the doer was under a legal duty to act, arising from statute, contract or office, a special relationship or the creation of danger. In Indian criminal law words referring to acts include illegal omissions (formerly Section 32 IPC).

Q. Is an involuntary movement an act?
A. No. A reflex, a convulsion, a movement in sleep or a movement caused by another's force is not controlled by the will, and the will is essential to an act on every classical definition. Textbooks list voluntary and involuntary acts as a pair, but the involuntary movement lies outside the concept of an act.

See also: Note 34 (liability and mens rea), Note 84 (civil versus criminal liability), Note 85 (fault versus strict liability), Note 87 (motive versus intention), Note 88 (legal duty versus moral duty), Note 89 (liability versus responsibility), Note 120 (negligence).