THE CASE FOR GOOD SAMARITAN LAWS

Rodney Lewis Evans Norfolk, Virginia

B.A., Old Dominion University, 1978 M.A., University of Virginia, 1981

A Dissertation Presented to the Graduate Faculty of the University of Virginia

in Candidacy for the Degree of Doctor of Philosophy

Corcoran Department of Philosophy University of Virginia

ABSTRACT

Because of the individualism pervading Anglo-American

law, it has generally refused to criminalize failures to

aid strangers, even when the aid would be risk-free and

life-saving. Historically, the law has been seen largely

as an instrument for punishing intentional and negligent

harms and violations of contracts, but not as a means for

encouraging rescues rooted basically in need. While

judges and legislators have regarded failures to prevent

grave physical harm to strangers as callous and morally

objectionable, they have generally refused to criminalize

those failures, largely out of a concern for individual

freedom.

This work evaluates the arguments against (minimal)

good Samaritan laws, examines some arguments for what

might be called extensive duties of rescue, and ulti-

mately defends good Samaritan laws. The defense of the

laws is based on the moral and social importance of pre-

venting grave physical harm to others at little or no

risk and cost. I shall argue that a concern for the

prevention of harm must be balanced by a concern for

individual liberty and autonomy. On the basis of that

balance I shall try to defend good Samaritan laws, oppose

the extensive duties of rescue defended by some utili-

tarians and others, and argue for a highly limited

principle of legal paternalism, which will be sensitive

to both personal freedom and the prevention of harm.

ACKNOWLEDGMENT

I want to thank the philosophy faculty of the

University of Virginia and particularly John Simmons, my

dissertation advisor, and George Thomas, my thesis

advisor, in whose methodical philosophizing I have found

inspiration. Finally I want to thank my mother for her

patience and support and Eusebia for her superb typing.

CONTENTS

Page

Introduction . . . . . . . . . . . . . . . . . . . . . 1

Chapter One 6

Chapter Two . . . . . . . . . . . . . . . . . . . . . 12

Chapter Three .................... 126

Chapter Four .................... 189

Notes to the Chapters ................ 210

Bibliography .................•... 218

INTRODUCTION

Historically, Anglo-American law has opposed crimi-

nalizing failures to aid strangers, even when the aid

would be risk-free and life-saving. That opposition is

rooted largely in the belief that, apart from special

positive duties generated by the seclusion of someone in

need of aid, by contract, by blood or marital relations,

or by some agreement, the principal business of the law

is to protect people from either deliberate harm or

negligence. The Anglo-American law has tended to attach

so much value to liberty and individualism that it has

refused to impose any liability on people who, say, omit

to throw a rope to a drowning person whose death might

have been prevented. The law's failure to punish bad

Samaritans, people who can easily prevent great harm to

others but do not, has struck many people as morally

outrageous. The phrase "the good Samaritan" comes of

course from the New Testament, specifically the Gospel of

Luke (10:25-37). The good Samaritan was a person who

happened upon a complete stranger who had been beaten and

left "half dead" by thieves. Although a priest and a

Levite had passed by the victim, the Samaritan not only

bound up the victim's wounds but also took him to an inn,

where he prepaid his bill and offered further help and

2

comfort. Judith Thomson has held that, if we think of

rights as minimal claims, then the Samaritan of the

parable was a splendid Samaritan, because his aid went

beyond what would be required by minimal decency.I

The question with which I am concerned in this dis-

sertation is not whether the law should require people to

act as beneficently as the good Samaritan in the parable,

but whether the law should require people to be (in

Thomson's words) minimally decent Samaritans. Arguably,

the priest and the Levite, who did not want to "get

involved," failed to be even minimally decent. The

parable is commonly taken to imply that in moments of

crisis all people in danger whom one immediately en-

counters are one's neighbors, in the sense that one has

an obligation to help them. Bad Samaritans are those

people who happen upon and ignore a distressed stranger

whom they can easily help at little or no cost. As a

result of the bad Samaritans' neglect, distressed people

suffer either harm or an increased risk of harm. The

stranger is typically a "complete stranger" to the bad

Samaritan in the sense both that the two have not made

any voluntary agreements or contracts that would generate

special duties and that they are not otherwise specially

related in such a way as to make one directly responsible

for the other's care. Some special relations are the

3

relation between parent and child, husband and wife, and

ship's master and passengers.

The Anglo-American law treats some actions as gene-

rating special positive duties even between strangers, as

when A secludes B, who needs to be helped. The question

whether the law ought to criminalize failures to effect

easy rescue of the sort with which we are concerned in-

volves the question whether the law ought to regard what

has been called "a common bond of humanity" as sometimes

sufficient to generate positive legal duties. Histori-

cally, Anglo-American law has answered "no" to that

question, and has insisted that bad or even egregious

Samaritans deserve contempt but not legal punishment,

because (the argument often goes) they have neither

deliberately nor negligently harmed anyone.

The structure of this dissertation will be as fol-

lows. I shall first briefly discuss the history of good

Samaritan laws in Europe and the United States. The

historical discussion will be Chapter One. In Chapter

Two I shall evaluate the most popular and influential

arguments against good Samaritan laws. Then in Chapter

Three I shall look at arguments for extensive duties of

rescue (duties beyond those required by what many people

consider minimal decency). In the final chapter I shall

tie together considerations for minimal good Samaritan

4

laws, which I shall defend, and then I shall summarize my

conclusions.

Before I begin discussing the history of good Samari-

tan laws, I must issue the following methodological warn-

ing. Although I am deeply attracted to moral reasoning

that, broadly speaking, appeals to what might be called a

Kantian respect for persons, I have not organized my

arguments around a moral system, nor have I tried to

reduce all the moral judgments made in this dissertation

to a few overarching moral principles. The values and

principles to which I shall appeal are those that common-

ly occur in moral reasoning and practical reasoning

generally: considerations of consistency, fairness,

utility, autonomy, and respect for persons. The question

will arise why I shall invest ordinary, commonsensical

values and principles with authority.

The answer to that question involves two reasons.

First, I am somewhat but not incorrigibly skeptical of

philosophers' attempts to create moral systems capable of

systematizing all important moral judgments. My skepti-

cism stems

utilitarian

of personal

systems can

from familiar causes. For example, while

systems have trouble capturing the importance

liberty and autonomy, purely deontological

sometimes oversimplify moral judgments and

can come close to rule worship. Further, some moral

5

questions appear to be too complex to be definitively

settled by appeal to a few extremely general principles.

(Consider, ~-, Kant's discussion of suicide in the

Groundwork.) The second reason I invest ordinary moral

principles with authority is my belief that the law ought

to reflect the most general moral principles commonly

employed by the people subject to the law. I hope that I

shall not be criticized--at least not severely--for

failure to order common moral principles after the manner

of an algorithm. I ask only that each of my arguments be

examined on its own merits. Now to Chapter One and the

history of good Samaritan laws.

In 1867,

enact a bad

hundred years

recognized a

Unlike those

(England, the

6

CHAPTER ONE

Portugal became the first European nation to

Samaritan criminal statute. Within one

or so later fifteen European nations had

legal duty to undertake easy rescues.2

fifteen nations, English-speaking nations

U.S.A., Canada, and Australia) have opposed

the imposition of liability in either tort or criminal

law for failures to rescue total strangers to whom one

stands in no "special" relation. Historically, Anglo-

American law has recognized at least four situations in

which failures to act may constitute breaches of legal

duties. One can be held criminally liable: (i) where a

statute imposes a duty to care for another,3 (ii) where

one stands in a certain status relationship to another,4

(iii) where one has assumed a contractual duty to care

for another,5 and (iv) where one has voluntarily assumed

the care of others and so secluded the distressed people

as to prevent others from rescuing them.6 Let me

elaborate.

Certain people(~, doctors, police officers, fire

fighters, and lifeguards) are sometimes required, because

of their vocations, to render aid. Certain people (e.g.,

employers, carriers, and innkeepers) are sometimes

7

required, because of contractual obligations, to render

aid. Further, certain people(~., spouses and parents)

are sometimes required, because of institutionally

recognized personal relationships, to render aid. An

example is found in Rex v. Russell, in which the de-

fendant was convicted of manslaughter for standing by and

simply watching his wife drown their two children and

then herself.7 Still further, people are sometimes re-

quired to render aid when they have accidentally caused

another's peril. ~-, if my car stalls below a hill, I

am required to take such steps as are necessary to pre-

vent my car from constituting a hazard. Finally, people

may be held liable if they fail to stop and assist at the

scene of an accident in which they are involved.

Apart from the special relations and circumstances

just described, Anglo-American law has generally refused

to require a person to help another. The law has in

short opposed a general duty of rescue, which would base

a person's requirement to help another simply on the

latter's need. One way to put the last point is to say

that the law(~, the Anglo-American law) has generally

opposed duties of rescue based purely on what is some-

times termed "the common bonds of humanity. 11 8 Until a

fairly recent statute enacted by Minnesota state legis-

lators, Vermont was the only state to recognize

8

duties of rescue. Part of the Vermont statute

reads as follows:

A

A person who knows that another is ex-posed to grave physical harm shall, to the extent that it can be rendered with-out danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others!9

number of people, including philosopher A.D.

Woozley, regard the Vermont statute as a paper tiger,

because it makes failures to rescue people a mere

misdemeanor punishable by a maximum fine of $100.00. In

contrast, the French law,~·, provides imprisonment up

to three years for failures to rescue.10 Although the

sanction of a $100.00 fine is light when it is compared

to the sanctions imposed by a number of European good

Samaritan statutes, the Vermont statute is nonetheless

important, at least theoretically, because it represents

the first attempt in American law to criminalize failures

to aid or rescue those people to whom one is related by

only common humanity. The Vermont statute runs counter

to the common-law tradition, in which people have not

been punished for failures to prevent harm even in

situations in which such failures would be considered

immoral by virtually any plausible standards. Such

9

omissions include the failure to warn a blind man of an

open manhole, the failure to throw a rope to a drowning

swimmer, the failure to lift the head of a sleeping

drunkard out of a puddle, and so on. The examples could

be multiplied, but the idea is clear: Anglo-American law

has generally refused to require easy and risk-free

rescues, even when such rescues might have saved lives.

Bad Samaritans have generally not been criminally punish-

able or civilly liable for their omissions and any

damages they fail to prevent.

The genesis of the Vermont statute is interesting and

deserves some discussion.11 Until the Vermont statute

there were no general duties of rescue in the United

States, but there were and are statutes called "good

Samaritan statutes, 11 which exempt physicians and some-

times ordinary citizens from civil liability for negli-

gence that is less than gross in the care or treatment of

victims of accidents. The chief goal of the statutes is

to encourage rescue by substantially removing the threat

of civil suits. Taking away an individual's right to sue

has been defended by a utilitarian appeal to the public

welfare.12

The majority of those statutes exempt only physicians

and other medical personnel from civil liability. Be-

cause most of the statutes do not give medical laypersons

10

any legal incentive to render aid, they have been criti-

cized. The statutes have been criticized also because

they vary from state to state, so that an out-of-state

physician (who may not know the state law) may be reluc-

tant to administer aid for fear of a malpractice suit.

Most of the pressure for the liability-exempting statutes

came from physicians, who are under a professional duty

to render aid.13 American pressure for the liability-

exempting statutes began to be felt in 1959 14 when '

physicians persuaded the California legislature to re-

lieve physicians who render emergency aid from the

traditional duty of due care.IS Since California's

action most states and the District of Columbia have

adopted similar statutes. In the state of Vermont

physicians' efforts to obtain a diminished standard of

care produced an effect somewhat different from that

which they had intended.

Vermont legislature

In 1965, both houses of the

passed a conventional protective

bill, which was, though, vetoed by the Governor. In

1967, the Vermont House passed another bill that assigned

liability to good Samaritans only for "willful or wanton

misconduct. 11 16 The Senate followed suggestions rejected

by the House and voted to impose a general duty of rescue

as the best means to insure aid for injured victims.17

Basically, the Vermont statute requires people to give

11

"reasonable assistance" to those people exposed to"grave

physical harm," unless that assistance is being provided

by others. The statute also exempts the rescuer from

civil liability for injuries unless the rescuer is

"grossly" negligent. The violation of the statute is, as

earlier mentioned, punishable by a fine of not more than

$100.00.

In 1983, Rhode Island and Minnesota enacted statutes

somewhat like that of Vermont, though the Rhode Island

statute is concerned only with the reporting of rape.

Those statutes were largely a response to a rape at Big

Dan's tavern in New Bedford, Massachusetts, where four

men raped a woman on the bar's pool table as the bar-

tender and four patrons watched.18 Because two patrons

cheered the attackers, they were charged with aggravated

rape, of which they were eventually acquitted.19

In Rhode Island, witnesses to a rape who do not

notify the police immediately are subject to fines up to

$500.00 and imprisonment up to one year.20 In Minnesota,

people who fail to render "reasonable assistance" to

anyone who is "exposed to or has suffered grave physical

harm" are subject to a $100.00 fine.21 Minnesota also

allows victims of rape to file civil suits against wit-

nesses who fail to effect any aid whatever.22 As of this

writing, Vermont's and Minnesota's good Samaritan stat-

utes and Rhode Island's rape-reporting statute are the

only examples of general duties of rescue in the U.S.A.

12

CHAPTER TWO

Since this chapter and the next are long, I have

divided them into sections. The sections of this chapter

are as the follows. The first explains why the harm

principle is important to my dissertation. The second

describes the most influential arguments against good

Samaritan laws. The third evaluates those arguments and

presents reasons for favoring the laws. The fourth ex-

plains the respects in which my views resemble and differ

from those of Joel Feinberg, who also supports good

Samaritan laws. The fifth and final section argues for a

highly limited principle of legal paternalism. The issue

of legal paternalism arises because I argue that it is

appropriate for the law to encourage people to prevent

harm. In the fifth section I argue that paternalism is

sometimes justifiable, as when it is aimed at preventing

harm to children, the retarded, and adults who do not

fully understand the nature and consequences of their

actions. Let us turn now to the first section.

I. Before examining arguments against

laws, I want to discuss briefly two issues

that will largely organize my thoughts.

determine whether any legal duties of rescue

imposed. Second, and relatedly, we

good Samaritan

or questions

First, we must

ought to be

must determine

13

whether duties of rescue follow from any fairly uncontro-

versial liberty-limiting principle, such as the harm

principle. Nearly everyone agrees that it is proper for

the law to criminalize assault, battery, theft, rape, and

murder. For those are clearly deliberate harms, on any

reasonable interpretation of "harm." As Joel Feinberg

says, when discussing good Samaritan laws~ the question

arises whether failure to effect easy rescues can be a

way of harming people.23

That question is important because if, say, failing

to throw ropes to drowning people can be a way of harming

them, criminalization of that failure could be based on

the harm principle. If there is, however, an irreducible

moral difference between causing harm to others and

(simply) allowing harm to befall them, the harm principle

(at least if strictly interpreted) might not be uncontro-

versially invoked to justify punishing failures to effect

aid. Further, if we accepted an irreducible difference

between harming people and allowing harm to befall them,

any attempt to ground a duty of rescue could not rely

simply on an unsupplemented harm principle, but would

have to rely on some other principle, or at least a

modified harm principle.

One

should

position is to

be supplemented

hold

by a

that the harm principle

principle that requires

14

people to prevent easily preventable harm to others whom

they happen to encounter in their travels. An exponent

of the supplementary principle might hold that, since

preventing people from causing harm to others is an

uncontroversial function of the law, the law ought to

prohibit people from allowing others to be harmed. For

prohibiting people from allowing harm to befall others

accomplishes the same end--that of preventing harm to

others. We could agree with the exponent of good

Samaritan laws and accept the presumption that the law

may be properly used to prohibit failures to prevent

harm, but only if there are no overriding reasons against

that presumption. One possible reason against the pre-

sumption would be some crucial moral difference between

causing harm and (simply) failing to prevent it.

We shall examine the most popular arguments against

the proposition that the law ought to encourage the

prevention of harm categorically and not just the pre-

vention of deliberate and negligent harms. A tricky

issue here is that of legal paternalism. If someone

holds that the law ought to encourage the prevention of

all harm (at least to the citizens subject to the law),

then it appears that he would have to accept paterna-

listic laws, which could require people, against their

wills, to refrain from harming themselves. For to

15

exempt paternalism from a harm principle that called for

the prevention of all harm would require some qualifying

condition. Someone might qualify the harm principle by

holding that it should apply to both everything it clear-

ly applies to now (~, battery, rape, and murder) and

duties to rescue those people to whom one can reasonably

ascribe a desire to be rescued. The phrase "desire to be

rescued" is aimed at ruling out the most objectionable

forms of paternalism. The problem with categorically

ruling out the legal prevention of self-inflicted harm is

that some highly qualified principle of legal paternalism

might be warranted. Indeed, near the end of this chapter

I shall argue for such a principle.

Eventually I shall try to support the view that fail-

ures to effect easy resuces should either fall directly

under the harm principle or follow from the harm princi-

ple supplemented by a principle requiring the prevention

of harm of either of two kinds: either harm that is not

willed by the persons who could be harmed or self-in-

flicted harm that would not be willed by the persons who

could be harmed were they aware of the nature and likely

consequences of their actions. Ultimately I shall argue

that, however we evaluate laws designed to protect people

from self-inflicted harm, the case for requiring the easy

16

prevention of grave physical harm to others who do not

want to be harmed is fairly persuasive.

I I. I

against

want

good

now to describe the most popular arguments

Samaritan laws. Joel Feinberg discusses

four standard arguments against good Samaritan laws: (i)

"the enforced benevolence argument"; (ii) "the line-draw-

ing argument"; (iii) "the argument from undue interfer-

ence with liberty"; and (iv) "the argument from causa-

tion.1124 Those four arguments are perhaps the most

influential arguments against the laws.

The enforced benevolence argument holds that good

Samaritan laws would erase the distinction between duty

and supererogation by making charity mandatory, by re-

quiring people to benefit others, by requiring them to

confer "gifts" on others. The argument just described

can and should be distinguished from an argument ad-

vanced by Elizabeth Wolgast, who expressed her view at

the American Philosophical Association, Pacific Division

Meeting (March 1981). Wolgast's view might be called an

argument from the diminishment of moral virtue. Accord-

ing to the argument, to attach legal sanctions to the

rescue of strangers is to reduce the number of oppor-

tunities for the display of moral virtue, since morally

virtuous acts must, it is held, be performed without

17

coercion. While Wolgast's argument is based on the value

of the exercise of moral virtue, the enforced benevolence

argument interprets active aid to others on the model

of conferring gratuitous benefits and hence its legal re-

quirement as an undesirable infringement of people's

freedom to choose the objects of their charity. (The

Wolgast argument is dubious, first, because it assumes

what is false, namely, that it is impossible for people

to be altruistically motivated to help others whom they

are legally required to help, and second, because it

values the display of virtue over a probable increase in

the saving of human life.)

After the enforced benevolence argument we shall

examine the line-drawing argument, which is based on an

accusation of a slippery slope. The argument holds that

to accept a general duty to aid strangers in an unantici-

pated emergency is in principle to open the door to

greater and greater infringements of personal liberty,

because (the argument goes) there will be no principled

way of drawing the line between fairly easy, face-to-face

rescues and more burdensome aid to the world's needy and

starving, which aid many if not most Westerners would

probably regard as supererogatory.

The third argument, the argument from undue inter-

ference with liberty, holds that although the prevention

18

of harm to others is a good reason for allowing the

abridgment of freedom, the reasons for requiring active

aid must be proportionately stronger than the reasons for

prohibiting actions, because duties to aid are generally

more burdensome than duties to refrain from harming

others, say, by assaulting, battering, or robbing them.

The fourth and most complex argument, the argument

from causation, consists of two claims or tneses. One

thesis is that there is

between harming others

befall them from other

a clear conceptual distinction

and (merely) allowing harm to

sources. It is held that only

active doings can, strictly speaking, cause harm, whereas

failures to prevent harm can at most (and at worst) be

said only to allow harm to happen. The second claim or

thesis, the moral significance thesis, holds that,

morally speaking, people should be held responsible for

only the harms that they cause. The first claim, if it

is to have force against good Samaritan laws, requires

the second claim, since without the moral significance

thesis some exponent of good Samaritan laws might argue

for those laws on the ground simply that they will pre-

vent harm, rather than that they will prevent delibe-

rately or negligently caused harm.

- 19

III. Let us turn to the first argument, that of enforced

benevolence. Since opponents of legal duties of rescue

often rely on the assumption that failure to help

strangers is merely a failure to confer a benefit, it is

well to discuss the distinctions between harming and mere

nonbenefiting and between benefiting and mere nonharm-

ing. The defenders of the common law's attitude toward

rescue have often if not typically viewed in the follow-

ing way actions affecting others. If A stands in no

"special relation" to B, then A can harm or benefit B by

intervening in B's affairs, or A can choose not to inter-

vene in B's affairs, in which case the law regards A as

neither benefiting nor harming B. Assuming that A and B

are complete strangers, A's failure to help B is regarded

simply as a failure to benefit. (A's failure to intervene

is also regarded as a failure to harm B.) In the situa-

tion just described, and from the standpoint of the

common law, A can harm B only by actively intervening in

B's affairs,~-, by choking B or negligently treating

B's injuries.

The picture given by the common law is that A's

failure to help B is a failure to perform an active

service, or to do what is charitable or benevolent.

Thus, in Union Pacific Ry. Co. v. Ca;e;eier the law re-

garded the failure to do anything whatever to help a

20

boy who had lost one arm and a leg as a failure to be

charitable or benevolent:

For the withholding of relief from the suffering, for failure to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men, but in the higher law, the violation of which is condemned by the voice of conscience.ZS

Failures to "bestow brotherly love" or failures to "re-

spond to the calls of worthy charity" are, however, de-

scriptions that do not properly capture egregious fail-

ures to rescue, as when someone through indifference

deliberately fails to throw a rope to save a drowning

stranger who will drown unless helped. Although Jeffrie

Murphy might not want to call such rope-throwing "chari-

ty," he comes close to saying, in the following example,

that failures to prevent harm to strangers, though at

times despicable, are simply failures to benefit the

imperiled party. He writes:

I can be highly morally lacking even in cases where I violate no one's rights. For example, I am sitting in a lounge chair next to a swimming pool. A child (not mine) is drowning in the pool a few inches from where I am sitting. I notice him and realize that all I would have to do to save him is put down my drink, reach down, grab him by the trunks, and pull him out (he is so light I could do it with one hand without even getting out of my seat). If I do not save him I vio-late no rights (strangers do not have a right to be saved by me) but would still

reveal myself as a piece of moral slime properly to be shunned by all decent people.26

21

It is not clear to me why the child would not have a

right to be saved by Murphy. After all, it is hypothe-

sized that Murphy can save the child's life at virtually

no effort and certainly no risk. I believe that a large

part of the problem stems from the word "benefit," which

is, as Joel Feinberg notes, ambiguous.27 Before I elabo-

rate, though, on the ambiguity of "benefit", let me make

some remarks about rights and rescue. While I am in

sympathy with Feinberg's claim that Murphy's drowning boy

has a right to Murphy's aid, I am a little less certain

of the claim than Feinberg. Feinberg bases his claim

largely on the proposition that Murphy's failure to aid

the boy would be an appropriate object of the boy's

grievance and resentment. He finds it quite natural to

say of Murphy that, in failing to rescue the boy, he

wronged him.

I realize that talk of rights can sometimes be less

than useful in resolving complicated issues, particularly

if one talks about rights without having in mind a con-

cretely elaborated theory of rights. I am concerned not

so much with talking about rights as with morally dis-

tinguishing the Murphy case from any clear case of

charity. What I reject is the view that Murphy's help-

22

ing the child is substantially like his contributing to a

charity in fulfillment of an imperfect duty of obliga-

tion. Let me explain.

According to the traditional picture of charity, as

described by, ~' Kant and Mill, people are morally

free to choose within general limits when, how, and whom

they will help. That picture is inapplicable to Murphy's

case, because Murphy is not morally free to decide

whether he should save the child. The moral requirement

operative in Murphy's example is a requirement to save

that child; that requirement cannot be satisfied other-

wise than by Murphy's saving that particular child. To

the degree that it is natural to describe Murphy's

failure to help the child as wronging the child, it is

arguable, though not indisputable, that the child has a

right to be helped by Murphy. Murphy's position is,

however, not without some merit, for it is true that

paradigmatic rights are correlative to either (i) posi-

tive duties generated by contract, special relations, or

statuses or (ii) uncontroversial duties of abstention,

such as duties to avoid battery, rape, murder, and so on.

Instead of arguing for the proposition that the

drowning child has a right to Murphy's help, I want to

examine and then oppose the view that Murphy's failure to

help the child is analogous to his failure to confer a

23

gift on the child. To that end I turn now to explaining

how regarding Murphy's help as a gift or a charitable

contribution

help can be

the enforced

is misleading

appropriately

benevolence

Samaritan laws as violating

when to be charitable.

concept of benefit, which

at best. Whether Murphy's

so described is important to

argument, which opposes good

people's freedom to decide

Now to a discussion of the

will, it is hoped, help us in

evaluating the enforced benevolence argument.

In what might be termed the generic sense of "bene-

fit" Murphy can benefit the drowning child by saving his

life, for to save the child would be to promote his

immediate interests. But one can also benefit people by

promoting their interest to a condition superior to what

is normal for them, as when someone gives a (non-needy)

complete stranger $100.00. Whether someone accepts talk

of different senses of "benefit" is unimportant here.

What is important is that we see that what qualifies as a

benefit will depend on standards of comparison.28

People's interests can be furthered in relation either to

their present or to their normal status. A hundred

dollar gift from an eccentric millionaire to a complete

stranger (who is not needy) is an example of improving

someone's normal status and may be plausibly regarded as

a boon or a windfall. But it is strained to say that, if

24

Murphy had rescued the drowning child, he would have be-

stowed some favor, or positive service, or even charity

on the child. For Murphy's saving the child would be a

case of restoring the child to his normal condition.

Failure to draw these distinctions between standards of

comparison makes it easier than it would otherwise be to

hold that Murphy's helping the child constitutes some

gift or charitable contribution, and that Murphy's

failure to help will not constitute wronging the child.

In Joel Feinberg's words:

It does not follow from the fact that a rescuer affects the endangered party's interests favorably that he "benefits" him in the sense of elevating his interest curve to a point on the graph above the baseline of the condition before he fell into the water. It is only the latter sense of "benefiting" that would support further descriptions of the rescue as benevolent generosity, "active service", "positive good", and so on, or the effect on the rescued party as "profit", "gain", or "advantage". Bene-fiting another, in this latter sense, is often to go beyond duty in a manner approved by our moral ideals but not re-quired by moral rules. The liberal advo-cate of a bad Samaritan statute can agree with Macaulay that in this precise sense of "benefit", governmental coercion can never be used to force one person to benefit another. But he should insist that easy rescue of a drowning child is not a "mere benefiting" in this sense. It is a benefit only in the generic sense of affecting the child's interest favora-bly, specifically by preventing a drastic decline in his fortune from a normal baseline. That is quite another thing than conferring a windfall profit on him.29

25

Many people who believe that we do not have a moral

duty to be even minimally decent Samaritans will argue

from the assumption that rescues--even easy rescues--of

complete strangers are gratuitous services, which we are

at liberty to give or not to give, such as gifts, favors,

or charity. But, as I have already suggested, benefit-

ing people in the sense of restoring them from a peri-

lous or harmful condition to a minimally decent condition

(in which they are free from immediate harm or grave risk

of harm) does not appear to be best described by "gift",

"favor", or "charitable contribution". The phrase

"minimally decent condition" is perhaps less misleading

there than the word "normal," because although we are

morally required to save drowning people when we can do

so at virtually no risk and cost, we are not morally re-

quired to compensate rich people for their losses in the

stock market; we are certainly not morally required to

restore former millionaires to their original levels of

wealth. In a case like that of Murphy, where A encoun-

ters B, whose life A can save with ease and without risk,

A's failure to help Bis a failure to do what is morally

required and arguably even a case of wronging B, but not

a case of A's simply failing to confer a gift or favor on

B.

To clarify my position I shall discuss the distinc-

26

tion between harm and nonbenefit, which is most clear in

extreme cases. To batter people is to harm them, whereas

simply to refrain from giving people gifts usually in-

volves only the withholding of benefits. It is easy to

think of ways to complicate the employment of that dis-

tinction. As Feinberg points out, we can complicate the

situation by complicating the nature of the relationship

between the agent and the "patient. 11 30 Many relation-

ships between people can generate special moral duties

and rights. Some of these relationships include the re-

lationships between husband and wife, between employer

and employee, between creditor and debtor, between doctor

and patient, between parent and child, and so on.

Besides those special duties and rights generated by

specific roles and agreements, there are a number of

moral duties and rights that are general. Negative

duties(~, duties to abstain from killing, raping, and

stealing) are duties owed to all people, simply as per-

sons. Further, many if not most people also acknowledge

some general positive duties of aid, most clearly appli-

cable to a case like Murphy's. While I believe that it

is plausible to hold that the drowning child has a right

to be saved by Murphy, we could think of another case,

discussed by Feinberg, in which our moral judgments

would be different.31 A convicted murderer appeals to

27

the governor for clemency. Here while the governor could

easily save the murderer's life, clemency is not some-

thing that the prisoner can claim as his right. Although

the governor's failure to give clemency may in some sense

be a causal factor in the prisoner's death, it is plausi-

ble to hold that the principal or at least ultimate cause

of the prisoner's death was his commission of the crime.

At any rate, if an action is indeed one of clemency, it

is presumably beyond uncontroversial moral requirements,

illustrating a kindheartedness going beyond a minimal

degree of decency.

The clemency case is instructive because it is a case

in which someone's failure to save a life is not best re-

garded as harming someone, but is more plausibly regarded

as a failure to confer a favor on someone. Feinberg

holds that executive clemency illustrates yet another

sense of "benefit", in which to benefit people is to

produce any favorable effect on their interests that is

gratuitous.32 If a failure to bestow executive clemency

is a good example of a failure to confer a gratuitous

benefit, we can see how inappropriate it is to describe

all failures to effect easy (and sometimes life-saving)

rescues as failures to confer gratuitous benefits. While

there are, as already suggested, gratuitous benefits (as

when people pick up hitchhikers), not all aid to stran-

28

gers is properly regarded as a favor or a gift people are

morally free to withhold. Generally speaking, the less

severe and probable the threatened harm or non-benefit

is, the less reason for holding that the potential aid is

morally required and the more reason for holding that the

aid is a gratuitous benefit.

As Feinberg points out, whether A's conduct toward B

harms or simply fails to benefit Bis a function not only

of (i) the effects of the conduct on B's interests but

also of (ii) whether A is morally required to help B.33

In cases in which A is not morally required to help B, as

in the clemency case, the baseline against which to

measure harms and benefits is the beneficiary's present

status. In Feinberg's words: "The benevolent stranger's

gift to the distraught bettor [who lost his money] then

might be regarded as a 'sheer gain' for him, indeed a

windfall profit, even though it only brings him back to

the break-even point at which he began the day. 11 34 But

in cases in which A is morally required to help B wholly

because of the latter's need, as in Murphy's case, the

baseline to measure benefits and harms is at the level of

imperiled person's "normal" status before the onset of

the crisis or emergency. (The comment about "normal

status" requires qualification, so that it can be under-

stood as referring to a condition of minimal decency.)

29

In discussing locations of baselines for measuring

harm and benefit, I have made moral judgments. I have

held that the help required by a person in grave danger

is in some circumstances not properly regarded as a gift

or a favor that potential rescuers are morally free to

give or to withhold. Moral judgments are unavoidable

here because we are talking about the concepts of harm

and benefit, which are morally charged. The enforced

benevolence argument turns on the proposition that any

aid--including life-saving aid--given to a stranger by a

party not specially related to the stranger is a gratui-

tous service. I have held that, morally speaking,

Murphy's failure to save the child is not properly re-

garded basically as a failure to confer a boon on some-

one; rather, his failure is a failure to respond to

another's humanity in even a minimally decent way.

My position may be summarized as follows. I have

suggested that there are various ways in which opponents

of good Samaritan laws have described easy rescues. Some

of those descriptions characterize such aid as "mere"

conferments of benefits, gratuitous favors, and charity.

I believe with Feinberg that all those descriptions are

inadequate conceptual analyses of "acts of assistance,"

at least of those acts that would constitute acts of

minimally decent Samaritanism.

30

Let us turn now to what Feinberg terms "the line-

drawing argument." The idea behind the argument is well

expressed by Richard A. Epstein, who writes: "Once one

decides that as a matter of statutory or common law duty,

an individual is required under certain circumstances to

act at his own cost for the exclusive benefit of another,

then it is very hard to set out in a principled manner

the limits of social interference with individual

liberty."35 To support his point Epstein gives the

following example.36 Each of us can save the life of

some starving child in a country ravaged by war by giving

ten dollars to a representative of some private charity.

While ten dollars may mean little or nothing to each of

us, it might well save a life. Epstein asks whether we

ought to give away the ten dollars or at least loan it

interest-free. He asks whether we can justify, on the

basis of reasonable principles, treating the charity case

differently from the case of someone drowning in front of

us.

The idea is that once we base a law on a

of beneficence, we shall have no clear

general duty

theoretical

immunity against legally enforced supererogation, or

worse, totalitarianism. Note that Epstein is not making

a dire prediction about the fate of countries that have

enacted, or that have thought about enacting, good

31

Samaritan statutes. Rather, he is maintaining that the

concepts involved in good Samaritan statutes (e.g.,

"reasonable risk," "little cost," "prevention of grave

physical harm") are so vague and slippery that there is

no clear, principled way of consistently applying the

statutes to only cases of clear-cut moral duties, as in

the case of Murphy's drowning child.

Although A.D. Woozley appears to read Epstein as

advancing a dire prediction, I think that Woozley's

reading may not be quite accurate.

answer to Epstein's and similar arguments:

Here is Woozley's

If Good Samaritan law cannot be intro-duced without undermining the foundations of individual liberty, how is it that it is alive and well in Denmark, France, Germany, Holland, and Norway? What seems to lie behind the objection is a fear of vagueness, that we cannot put limits on the scope of a duty to aid. But we can; that is what skilled legislative drafts-men are paid for; and what they cannot foreclose in advance the courts have it as their function to determine by inter-pretation and adjudication afterwards.37

Mr. Woozley is perhaps dismissing Epstein too quick-

ly, because Epstein must realize that "legal draftsmen"

can draw up statutes that require, say, saving a drowning

person by throwing a rope, and that explicitly forbid the

State to use tax money to help starving people in

Ethiopia. Rather, Epstein's contention is that there is

no obvious justification for restricting duties to aid

32

to, say, easy, face-to-face rescues or for attaching most

importance to rescues of that sort. His idea is that, if

we are required to save lives when we can do so at little

or no risk and cost, there are no obvious principled ob-

jections to legally requiring increasingly large finan-

cial support to impoverished people, including those in

the Third World.

James S. Fishkin, in The Limits of Obligation, agrees

with Epstein's concern about line-drawing. Basically,

Fishkin holds that our ordinary moral views about rescue

are perfectly coherent when we consider helping only

those people whom we meet walking down the street. He

holds that we can all agree that we ought to throw a rope

to a drowning person, but that we need not, say, risk our

lives to save a stranger. Matters become difficult, how-

ever, when we consider duties of beneficence in relation

to the entire world. For when we apply to the entire

world even a minimal principle of altruism (such as the

principle that people should prevent great harm if the

costs to them and everyone else are minimal), we shall

run into a set of incoherent moral judgments. Fishkin's

idea is that, since the world is full of needy people,

even a minimal principle of altruism will require a

series of ~acrifices that will add up to a cumulative,

supererogatory effort. He writes:

The disparity in affluence between the developed countries and the world's poor is so enormous that an average American citizen of average income, such as this author, could give half his income--and it would still be the case that an additional small contribution would be a minor sacrifice. If I were reduced to half my present (junior faculty) salary, I could still afford to give five more dollars. What would I do with five dollars? Go to the movies? Pay for part of my new pair of sunglasses? Buy a paperback book? A further sacrifice of five dollars at the margin (if it had any noticeable effect on my life at all even at that level of income) would only affect such minor discretionary expendi-tures. What are any of these benefits compared to the good that can be done for an unknown starving person by contribu-tions to famine relief?

The difficulty, of course, in consis-tently applying this principle is that we would be led, step by step, to sacrifices of heroic proportions. If a large number of acts fall under this principle of minimal altruism, then they accumulate to sacrifices which, in total, should be re-garded as heroic under the cutoff for heroism. We thus come to classify the same acts as obligatory, on the one hand, and heroic or supererogatory, on the other.38

33

Fishkin is pessimistic about dissolving what he re-

gards as the inevitable tension that sterns from applying

our ordinary moral views about rescue to the entire

world. He believes that any solution will require a sub-

stantial revision of our ordinary moral views toward

individual freedom or minimal altruism or supereroga-

tion. As to Epstein, because he believes that the line

34

between morally required and supererogatory rescue cannot

be fairly drawn in practice, he rejects legal duties of

minimal altruism.

To try to answer Epstein and Fishkin, I shall discuss

the case against good Samaritan laws presented by Lord

Macaulay, whose views resemble those of Epstein. Let me

first describe the context in which Macaulay was writ-

ing. In 1837, the English historian Lord Macaulay was

given the task of revising the Indian penal code.

Macaulay began his task by asking to what extent omis-

sions should be punished when they involve a failure to

prevent harm. He eventually concluded that only certain

omissions should be punished, namely, those involving the

"special relations" we have already discussed. He de-

scribed what he took to be clearly punishable omissions,

as when a jailor refuses to feed a prisoner who starves,

or when a nurse fails to pick up her charge (a baby) from

a tub of water in which the baby drowns. Those are, ac-

cording to Macaulay, clearly punishable omissions because

they are failures to do what is prescribed by law as a

result of contract. He contrasted the cases of the

jailor and the nurse with the case of people who rebuff

strangers begging for money. The people who rebuff

strangers will normally stand in no special relation to

them: They have made no promises or agreements or con-

35

tracts with the strangers, nor have they negligently

treated them. Ultimately Macaulay sided with the common-

law tradition, which grounds positive duties to others in

prior agreements, roles, or special statuses.

As just

treatment of

suggested,

positive

Macaulay's

duties is

rationale for his

like that of Epstein:

"Wherever the line of demarcation is drawn, it will, we

fear, include some cases which we might wish to exempt,

and will exempt some which we might wish to include.39

To try to substantiate that charge, Macaulay examined the

following suggestion. Suppose the law were to treat as

homicide the omission to save the life of an imperiled

person when the person could have been saved "without

personal danger or pecuniary loss." Macaulay held that

the standard in question would be inadequate because for

some cases it would be too severe and for others it would

be too lenient. It would be too severe in the case of a

Calcutta surgeon who refused to go across the subconti-

nent of India from Calcutta to Meerut to perform a life-

saving operation that he was uniquely capable of perform-

ing.40 For the law, according to Macaulay, should not

require someone, under great inconvenience, to save a

complete stranger. The standard might also, in certain

circumstances, be too lenient, as when it would exempt

parents from spending a great deal of money to save their

own children.41 Macaulay's

36

idea here is that the

standard for rescue under discussion would be too

those "nonfeasors" who are specially related

contract or status to those endangered.

low for

through

Feinberg rightly maintains that Macaulay's problems

with the standard under discussion are answerable. For

if the Indian surgeon should not have to go across the

Indian subcontinent, we could exempt that case and

similarly burdensome ones by writing into the statute a

clause exempting people from "unreasonable inconven-

ience.1142 Further, a higher standard of expectation can

be applied to those special relations rightfully of

special concern to Macaulay and the common law. Those

special relations would generate more serious duties and

punishments because such relations are specially relied

upon. To use an example from Macaulay, if some guide

"stationed by authority" to warn travelers against

fording rivers that are too dangerous to cross neglects

his specially assigned duty, then he is particularly

reproachable, because he, by his voluntary agreement,

gave people to understand that they could safely rely on

him.43 Macaulay believed, though, that in the absence of

specially generated responsibility a person who knows

that the river is too dangerous to ford should be under

no legal obligation to warn people. Again, the reason is

37

that any law requiring rescue will, according to

Macaulay, almost certainly be unjust because it will

require too little or, what is more likely, too much.

As we have seen, Epstein objects to good Samaritan

laws because he believes that, once we require people to

act at their own cost for the exclusive benefit of

strangers, it will be almost impossible to set out

principles by which to limit social interference with

individual liberty. Like Epstein, Macaulay was worried

about the prospect of reasonably drawing lines between

morally requisite and supererogatory rescues.

writes:

It is true that none but a very depraved man would suffer another to be drowned when he might prevent it by a word. But if we punish such a man where are we to stop? How much exertion are we to re-quire? Is a person to be a murderer if he does not go fifty yards through the sun of Bengal at noon in May in order to caution a traveller against a swollen river? Is he to be a murderer if he does not go a hundred yards?--if he does not go a mile?--if he does not go ten? What is the precise amount of trouble and in-convenience he is to endure? The dis-tinction between a stranger who will not give a halloo to save a man's life, and a stranger who will not run a mile to save a man's life, is very far from being equally clear.44

Macaulay

But it is not clear that these matters are as foggy

as Macaulay suggests. Even though we may be unable to

discern a mathematically precise point at which day be-

38

comes night, lightness and darkness are tolerably dis-

tinguishable. Further, it is well to remember that the

law already makes extensive use of the "reasonable man

standard." To answer Macaulay and to continue the

previous figure of speech, we might say that, while the

law should not be expected to specify the exact point at

which day becomes night (~, the exact point at which

reasonable risks and inconveniences become unreasonable

risks and inconveniences), the law might well be clear

enough to distinguish between noon and dusk (~,

between clearly reasonable and clearly unreasonable risks

and inconveniences). In Feinberg's words:

There may be no morally relevant dif-ference between any two adjacent places on the spectrum, but there is a very clear difference between widely separated ones. It would be inconsistent to exempt one bad samaritan for failing to take two steps while convicting another for fail-ure to take one, but there would be no inconsistency in convicting one for fail-ure to take half a dozen steps while exempting another for failure to run two miles.45

One way to answer Macaulay and Epstein is by crimi-

nalizing only those failures to rescue that require vir-

tually no risk or inconvenience. Although that tack may

answer the line-drawing argument, someone might hold that

punishing only horrible Samaritans fails to do justice,

because we would then be exempting from liability bad

39

Samaritans who refused to expose themselves to even very

little risk or inconvenience. An answer to the last ob-

jection is to

volves dividing

advocate Feinberg's

rescues into three

position,

classes:

which in-

those in-

volving (i) no unreasonable risk, cost, or inconvenience

(including those cases in which there is no risk, cost,

or inconvenience whatever); (ii) risk, cost, or incon-

venience that is of uncertain and controversial reasona-

bleness; and (iii) clearly unreasonable risk, cost, or

inconvenience.46

If we can achieve a workable understanding of "un-

reasonable risk and cost," and we advocate, as Feinberg

wants to advocate, the imposition of liability only in

cases falling under class (i), we shall have a basis for

establishing principled differences between cases that

Epstein thought could not be theoretically distinguished,

or practically distinguished in a principled way. To the

objection that the concept of reasonableness is vague

Feinberg plausibly answers that the law already makes

extensive use of that concept. For that concept is used

both in civil cases ("reasonable care") and in criminal

cases ("Would a reasonable person have been able to bear

those insults without being provoked?" or "Was it

reasonable for Jones to use the degree of force that he

used?").47 Since the law already allows determinations

40

based on differences of degree, the person who opposes

good Samaritan laws on the ground that they require

standards involving judgments about differences in

degree ought either (i) to oppose much civil law (par-

ticularly standards governing negligence) and some

criminal law or (ii) to explain exactly why judgments now

requiring quantitative discrimination in civil and

criminal law are proper in a way in which

reasonable risk and inconvenience are

judgments about

not. As to the

possibility that the discretion left to juries and

prosecutors will lead to unfair or malicious prosecution

of decent but unheroic Samaritans, there are, as Feinberg

holds, a number of possible safeguards.48 First, the law

could require only those rescues involving little or no

risk and cost. Second, lawyers and judges could empha-

size a safeguard already contained in the criminal law,

that of requiring for conviction a judgment of guilt

beyond a reasonable doubt. Third, juries could be in-

structed not to convict people if there are any doubts

about the reasonableness of the risk involved in omis-

sions to rescue.

Even though I believe

be answered, I do not want

the line-drawing objection

fact, I readily admit that

that Macaulay and Epstein can

to give the impression that

has no force whatever. In

there may be situations in

41

which we are not sure about the nature and scope of a

moral duty to rescue. One such puzzling situation

already mentioned was that of the nineteenth-century

English residents of India, many of whom regularly

encountered starving Indian beggars. Macaulay was

addressing the situation of those British residents of

India. We have seen that Macaulay, when he gave his

advice in 1837, held that in the absence of special re-

lations a passer-by ought to be under no legal duty to

give money to any beggars. Since I think that Macaulay's

conclusion in the beggar example is plausible, but also

think that it is sensible for the law to require easy

rescue, such as the rescue discussed by Jeffrie Murphy, I

should draw some distinctions.

If we think of Murphy's lounger example as a paradigm

for a situation calling for minimally decent Samaritanism

(MDS), we can see how importantly that example differs

from the Indian situation discussed by Macaulay. In the

example discussed by Murphy, the potential rescuer can,

once and

absence of

for all, prevent

intervention, be

grave harm that will, in the

imminent. Typically, the

people who can be minimally decent Samaritans can

help--at little or no risk and cost--a person who is in

grave and imminent or immediate danger. In the Indian

situation few if any English people were in positions to

42

prevent grave harm to all the starving Indians they en-

countered. Each English person could at best either sub-

stantially help only a few Indians or give almost no help

to, say, hundreds or thousands of Indians. Although some

people may be certain about what the English people ought

to have done, I am uncertain.

I think, however, that

the situation in which the

it is plausible to hold that

English people found them-

selves was somewhere between a case requiring charity and

a case requiring rescue. For the situation differed from

a typical situation calling for minimally decent Samari-

tanism, since most of the English people, as I suggested,

could not help all those people who needed help. Nor

could they, once and for all, save most of the people

needing help from imminent danger. Because of thi un-

fortunate conditions to which the English residents of

India were exposed, it is plausible to argue that if any

one of the residents distributed, say, 20% of his income

to every third beggar he encountered, no unhelped beggar

could reasonably claim that he was wronged, that he was

the object of gross moral callousness. The situation

just described is sharply different from Murphy's case,

in which Murphy could have easily saved the child's life,

once and for all. At the very least, Murphy was guilty

of gross moral callousness.

It is

43

plausible to regard contributions of the

English residents to the Indian poor not as help exacted

as a right by identifiable claimants but as more like

charity in fulfillment of an imperfect obligation to help

some people less fortunate than oneself. That interpre-

tation may be compatible with the position of John Stuart

Mill, who saw charity as a, or the, paradigmatic duty of

imperfect obligation: Charitable acts are morally

required, but not owed to any definite person at any

definite time. The idea is again that we are obligated

to help, to a reasonable net degree, the needy, but that

we may more or less decide for ourselves exactly when and

whom to help. Typically, we must decide how much to give

to a class of equally needy people.

In theory, a modern state's welfare system attempts

to ensure that a nation's poor are equitably raised to at

least minimally decent living conditions. A principal

idea behind such a system is that without a scheme of

coordination directed by a centralized agency the poor

would most likely not be equitably helped, and the bene-

factor~ would not equitably bear the burden of helping

the poor. Feinberg writes:

Now no one can plausibly be charged with failure to prevent a beggar's death by not making him a direct contribution, since agencies of the state will not per-mit the beggar to die in any case, and one can always plead in one's defense

that the state's money for this purpose comes from tax funds to which one has already contributed one's fair share. It may have seemed obvious to Macaulay that no unrelated samaritan has a duty to save a starving person's life by giving him money, but now we all have a general duty, enforced in a coordinated way, to support welfare with taxes, and the reasonableness of that duty is no longer seriously questioned.49

44

Some libertarians might dispute Feinberg's last con-

tention. Temporarily waiving libertarian problems with

general positive duties and particularly taxes, my posi-

tion is that, however defensible the instit~tion of state

welfare is, moral duties to act as minimally decent

Samaritans are at least as defensible as taxation for

public welfare, for at least two reasons. First, while

it is conceivable, though often perhaps unlikely, that

one could equitably discharge the imperfect duty of

charity by giving one's "fair share" to private chari-

ties, it is inconceivable for any organization, public or

private, to effect such aid as would be required by

Samaritanism. For such duties involve situations that

are by definition urgent and unpredictable. Second, and

as Feinberg holds, situations requiring Samaritanism

typically do not involve the problems of unfairness

attendant upon singling out a particular person to help,

nor do easy rescues unfairly burden chance rescuers.

We have now come to a point at which we can see what

45

the beginnings of an answer to Macaulay and Epstein will

look like. First, we have a rationale for the minimal

duties of rescue required by good Samaritan laws. The

duties will follow from the judgment that people should

prevent grave harm to others in situations in which they

are specially or uniquely able to prevent that harm at

little or no risk and cost. I shall not pretend that the

idea of special or unique abilities is, within the rele-

vant context, without difficulty.

Before I try, however, to clarify that idea, I want

to explain why it is important to the liberal's case for

good Samaritan laws. That idea is important because it

highlights the point that, while the general (and imper-

fect) duty to help the poor might be discharged through

governments or private charities or other corporate

agencies, the requirements to help people in need of MDS

are requirements to help people who cannot be helped

otherwise, as by special

agencies. Further, and

organizations

as already

or governmental

suggested, since

situations requiring MDS are uncommon, there is no

substantial danger of unfairly taxing anyone's resources.

We might now be able to clarify the idea of special

ability and placement by considering some examples. I

beg the reader's indulgence as we look once again at

Murphy's example. In that example no one but Murphy is

46

physically able to save the child, and he can save the

child simply by reaching down and picking the child from

the pool. Because of Murphy's situation, he has special

knowledge (~, knowledge that the child is drowning)

and ability to save the child, who can be saved only if

Murphy acts immediately. If we changed the situation so

that a professional lifeguard were where Murphy was

sitting and Murphy were several yards away from the

child, the lifeguard would clearly be specially related

to the child legally and morally, both because of his

location and because of his duties as a lifeguard.

Unfortunately, however, many emergencies cannot be

remedied by professionals, but can be remedied only by

lookers-on who can save people only if they act without

delay.

Questions about special ability and position are

doubtless not always so easily answered as in the Murphy

case. There are after all situations in which perhaps a

dozen persons can save someone from drowning, or can call

the police to report a rape in progress. Further, in the

drowning case if all twelve persons tried to save the

drowning person, they could make the situation even more

dangerous. That situation is not, however, an argument

for passivity, but it simply highlights the judgment that

the duty to render aid must be discharged carefully and

47

in consideration of other potential rescuers, whose

efforts one could unintentionally thwart. The possi-

bility of endangering people in an already precarious

situation also suggests that the requirement to effect

rescue falls on people only when other people are not

already adequately effecting aid. Naturally, if a pro-

fessional rescuer (such as a lifeguard or a paramedic) is

adequately giving aid, then a by-stander is freed from

any requirement to help.

As I have already suggested, part of the reason for

talking about special ability and placement is that some

people vitally in need of immediate aid cannot be helped

otherwise than by lookers-on. Those lookers-on cannot

dismiss the requirement to aid such people simply by

saying, "I gave at the office." While we may sometimes

be unsure about defining the exact limits of special

placement, it would be implausible to hold that there are

no reasonable ways to distinguish between Murphy's duty

to save a particular drowning child and his duty to give

a certain percentage of his income, largely in a way

approved by him, to a worthy charity.

To the objection that it is practically impossible to

attach principled restrictions to duties of rescue we can

point to Feinberg's idea of restricting rescues to only

those rescues that require clearly minimal risk, cost,

48

and inconvenience. The idea of "reasonable risk and in-

convenience," though vague, does not appear to be unwork-

able. Nearly everyone accepts the existence of some

general positive moral duties, though some people object

either to the ways in which governments determine the

"fair share" for each citizen or to the use of govern-

mental coercion to collect taxes for public welfare. If

people accept the existence of some general positive

moral duties, they ought to recognize what I take to be

the clearest cases of those duties, namely, cases in

which people can (once and for all) easily and uniquely

prevent grave physical harm (including death) to others.

(In discussing the third and fourth arguments against

good Samaritan laws, I shall try to answer some liber-

tarian objections to general positive duties.)

We have seen so far two arguments against minimal

duties of rescue. Both arguments appeal to the value of

individual liberty. The enforced benevolence argument

holds, as we saw, that legally requiring rescue is tan-

tamount to making charity mandatory, depriving people of

the freedom to decide when to be charitable. That argu-

ment, I have held with Feinberg, rests on a dubious

analysis of "acts of assistance." The second argument we

have examined, the line-drawing argument, holds that

duties grounded purely in altruism cannot in any

49

principled way be so restricted as to respect the degree

of personal autonomy and morally free action we think

each person deserves. We shall turn next to the third

argument against good Samaritan laws, that from the un-

justifiable limitation of liberty, and then finally to

the argument from causation. The third and fourth argu-

ments will be of particular interest to libertarians, who

typically oppose any general positive duties. Now to the

third argument.

Someone might concede that, while the prevention of

harm to others is a good reason for the law's limiting

our liberty by prohibiting certain conduct, the law ought

not to impose requirements to aid, because the latter are

greater interferences with liberty than mere prohibi-

tions. The libertarians might demand proportionately

more weighty reasons for positive duties than negative

duties, since positive duties can limit freedom more.

They might argue that in the absence of special rela-

tionships (particularly contractual ones) people ought

not to be required to prevent harm they in no way

initiated.

One problem with the argument is that positive duties

do not always restrict our options more than negative

ones. Feinberg writes:

If the law required doctors to travel all over the country treating patients, that

option would be very intrusive, but a law requiring a closely situated bystander to warn a blind person that he is about to step into an open manhole requires only a spoken word, which hardly limits the other options at all. Similarly, a legal prohibition against driving more than ten miles per hour in a school zone limits one's liberty more narrowly (and a good thing too!) than would an enforced limit of fifty miles per hour.SO

50

Feinberg's point is that the mere fact that a rule is

proscriptive rather than prescriptive does not entail

that the rule restricts liberty less. The extent to

which some rule restricts liberty will be a function of

how it influences our options, and the extent to which a

rule influences our options is not a simple function of

whether the rule is prescriptive or proscriptive.

There is, however, one feature of duties of rescue

that does make them in some sense more invasive than

ordinary criminal prohibitions. Because duties of rescue

will require people to help others principally in urgent

and unpredictable situations, those duties are, more than

most other duties, unanticipated, and unanticipated

duties are obviously not the sorts of things for which

people can plan. Given what was just said, some liber-

tarian might argue as follows. If we are to have as much

freedom as is compatible with the similar freedom of

others, we .should allow people as much freedom as possi-

ble to plan and predict the course of their lives. With

51

is no problem with predic-

business well enough to

most negative duties there

tion. Most of us can mind our

avoid intentionally harming

rescue things are different,

whether we shall chance upon

others. But with duties of

since we cannot predict

a complete stranger in

distress.

I think that the concern about unpredictability and

its effect on freedom is legitimate, but believe, along

with Feinberg, that the way to respond to it is not by

rejecting all duties of rescue but by restricting duties

of rescue to those situations in which one can prevent

grave physical harm to others at little or no risk and

cost. Further, and again, since most people will rarely

if ever chance upon people in need of minimally decent

Samaritanism, good Samaritan laws do not appear to be

obviously inequitable. It is well to realize that the

law already requires positive performances that fall on

people haphazardly, as when people are required to

testify in court as witnesses to crime.

Samaritans, witnesses to crimes are

help others in need. Given that

Like many decent

specially able to

some people are

specially placed to prevent, at little or no risk and

i~convenience, grave harm that cannot be otherwise

prevented, I do not believe that requiring minimally

decent Samaritanism unreasonably restricts their liberty.

I turn now to

that from causation.

said, consists of

52

the fourth and last major argument,

The argument, as I have previously

two assertions: (i) the restricted

causation claim and (ii) the moral significance thesis.

The restricted causation claim holds as a conceptual

truth that only active doings can be said t~ cause harm,

and that nondoings can at most merely allow harm to

happen. The moral significance thesis holds that

people's culpability should extend only to those harms

they cause. As Feinberg says, the restricted causation

claim constitutes an argument against good Samaritan laws

only when it is supplemented by the moral significance

thesis. For without that thesis there would be no

special moral relevance in the claim that bad Samaritans

allow rather than cause harm.

According to the

causing harm, as opposed

significant enough to

moral significance thesis, only

to allowing harm, is morally

warrant criminal legislation. By

"causing harm" let us mean "starting a causal process

that leads directly to a harmful consequence." By

"allowing harm" or "failing to prevent harm" let us mean

"the failure to do what is necessary to stop a harmful

causal process begun by a source other than oneself."

The concept of causation is obviously complex, and I do

not want to suggest otherwise. I must content myself

here, however, with relying

pre-analytical understanding of

53

on the reader's intuitive,

the distinction between

one's causing harm by, say, battering, raping, or drown-

ing someone and one's deliberate failure to prevent

someone from being battered, raped, or drowned. Let me

elaborate.

In support of the moral significance thesis someone

might hold that we ordinarily regard deliberate batt~ries

and murders as worse then a by-stander's failure to pre-

vent batteries and murders. We must, though, be careful

here. While it is true that failures to prevent harm are

often motivated by fear rather than by malice, and are

often less blameworthy than deliberately inflicted harms,

we should compare an action and an omission that are

alike in motive and intention but differ only in that the

action (directly) causes harm, whereas the omission

allows it. If we compare actions and inactions as sug-

gested, we might have to conclude that in circumstances

in which the harm is grave and preventable with ease and

without risk, there is no significant moral difference

between those actions and the inactions, or at least no

difference significant enough to warrant our regarding

only "direct" harms as criminalizable. For, as Feinberg

holds, the claim of "moral symmetry" between actions and

their corresponding inactions appears to hold in clear-

54

cut cases of bad Samaritanism, such as Murphy's lounger

story.51

Remember that in the story the pool lounger (Murphy)

can easily reach down and save the child from drowning,

but he decides against helping the child, presumably

because of indifference or the desire to avoid even

slight inconvenience. We might compare our assessment of

the lounger's inaction with "the complementary story of

the same person idly pushing the child into the pool,

when the lounger's motivation is the same. 11 52 Perhaps we

might regard the pusher as slightly--and I mean slightly

--more reproachable than the lounger who simply watches

the child fall into the pool and then does nothing to

help, but surely the difference between the two cases is

hardly morally important enough to justify criminaliza-

tion only in the pushing case.

Some people might want some moral theory or principle

to justify my contention that the lounger's failure to

save the child who accidentally falls into the pool is

just about as morally serious as the lounger's playfully

shoving the child into the pool and then failing to help

him. It is not clear to me whether any theory or princi-

ple I could invoke would be on any firmer ground, would

be any more obvious, than the particular moral judgment.

But before I discuss theoretical justification, it is

55

well to remember the nature of not only the objection but

also the objectors. In the context in question the ob-

jectors are not nihilists: They accept general moral

duties, but contend that such duties must all be duties

of abstention. That is why they think that loungers who

push small children into pools are responsible for the

children's misfortunes in a way that they would not be if

they only watch the children drown as a result of acci-

dentally falling.

I might here ask the objectors why they think that

the two cases are so different as to warrant profoundly

different moral assessments. I am hoping that they have

read my discussion and criticism of the most common argu-

ments against good Samaritan laws, and that they are in

sympathy with my criticisms of those arguments. They

might, however, rest their case on some version of what

has been termed "rational egoism."

They will, however, probably have problems with that

position, at least if they express the position intra-

ditional terms. I make that claim because rational

egoism, traditionally understood, is a consequentialism

holding that people ought to do whatever they can to

satisfy their (presumably overall and long-term) self-

interest. Given that understanding of rational egoism,

someone might well wonder whether rational egoists have

56

trouble taking any rights seriously, including those

rights correlative to negative duties. If I have a duty

to refrain from stealing your property, presumably you

have a claim against me that I would be violating by

stealing your property. My point is that, if my ob-

jectors take negative duties seriously, it is difficult

to see how they can justify the value they attach to

those duties by appeal to rational egoism, at least as

that position has been traditionally understood.

If the objectors try to make out a case for saying

that it is in their enlightened self-interest to

cooperate in, and give support to, a system of laws that

treats negative duties as virtually sacrosanct, then I

submit that it might well be in their best interest to

support a system of minimal general duties of rescue. At

least it is not obvious that enlightened egoists ought to

adhere strictly only to laws reflecting negative duties,

if their position requires them to take even those duties

seriously.

Just as the egoist might have trouble taking negative

duties seriously without accepting general positive

duties, so minimal duties of rescue appear to follow from

a number of different theories and principles. Clearly

utilitarianism will reject the view that negative duties

are inherently more serious than positive ones. (I would

57

not, however, try to argue against the objectors on

purely utilitarian grounds, because I think that utili-

tarianism is too problematic in its treatment of indi-

vidual liberty and personal autonomy to defend. Indeed,

I plan to argue against its treatment of rescue in the

next chapter. My point is simply that utilitarianism is

a popular moral theory that conflicts with ·the view that

negative duties are inherently more serious than positive

ones.)

The objectors' rejection of general positive duties

is also incompatible with theories other than utilitari-

anism. A Kantian,~' would probably agree with Kant's

judgment that rational agents could not consistently will

that they not be helped in grave emergencies, for presum-

ably rational agents would not want to thwart their own

desires.

There may, however, be some "rugged individualists"

who really believe that other people are not morally ob-

ligated to throw them ropes when they are drowning, but

it is not clear either (i) that their species of indi-

vidualism is rational or (ii) that their view is compati-

ble with the recognition of even negative duties. It is

well to remember that even on one of the most egoistic

models of human behavior, that of Hobbes, people are

conceived as required by rationality to covenant with one

another for mutual benefit.

58

Although I am unfamiliar

with Hobbes's position on rescue (if indeed he expressed

one), it is not clear that his position excludes duties

of rescue. In fact, someone might hold that Hobbes's

position should endorse minimal duties of rescue.

Like Feinberg, I reject the "moral significance

thesis," because I do not see any substantial moral

difference between allowing an imperiled person to suffer

grave harm (when one can easily and safely prevent the

harm) and causing that harm, other things (motive and

intention) being equal. Someone might here ask whether

the person in Murphy's position would push the child into

the pool if he had not fallen in or whether the person in

Murphy's position would be unconditionally opposed to

pushing the child but not opposed to letting him drown.

Although there may be people who would never deliberately

drown the child but who are quite willing unconcernedly

to refrain from saving the child, it is difficult to

understand how someone could defend that position

without, at the very least, revealing a confused or

corrupt mind. My point is that, if otherwise normal

adults could simply sit watching a child as he drowns in

front of them, they are acting heartlessly. Further, if

they tried sincerely to defend their failure to save the

child by saying that they did not push the child, we

59

might wonder why they would be attracted to a theoretical

system that would lay enormous stress on that distinc-

tion. I should think, however, that as a matter of psy-

chological fact it is doubtful whether many people who

could without remorse simply watch the child drown would

have severe moral qualms about drowning the child, at

least if drowning the child were in their self-interest.

Even if someone denies any moral symmetry between the

pushing and refraining cases just described, it is plaus-

ible to make an analogy between the moral seriousness of

horrible Samaritanism, such as that hypothetically

exemplified

negligence.

that it is

by Murphy, and the moral seriousness of gross

Laws against negligence embody the judgment

wrong

for others' welfare.

to act without adequate consideration

The idea behind those laws is the

belief that people can mistreat others otherwise than by

malicious action, and that people can, through their

actions and omissions, fail to take seriously other

people's needs. I maintain that even if we reject the

idea of any causal connection between a disregard for

strangers 1 distress and the harm that later befalls them,

there need not be a significant moral difference between

negligently harming people by positive action (or by

failures to exercise a reasonable degree of care) and

deliberately failing to help prevent grave injury or

60

death to them when one can do so at little or no risk and

cost. In short, I see no important moral difference

between Murphy's lounger and a person who causes

another's death through negligence. Indeed, morally

speaking, Murphy's lounger is arguably at least as

culpable as a drunken driver guilty of "involuntary

manslaughter." I said "at least" because Murphy's

lounger, unlike the drunkard, is supposed to be in a

rational, unimpaired state of mind. Murphy himself

regards the hypothetical lounger as "moral slime", but

does not think that he violates the child's rights. I

have some doubts about his comment about rights, but

believe that, however we talk about rights, the conduct

of Murphy's lounger is, again, at least as reprehensible

as that of a drunken motorist who unintentionally kills

someone.

Because someone might reject my analysis of the moral

significance thesis, I shall investigate the restricted

causation claim, according to which causing and (merely)

allowing harm are held to be so conceptually different

that it is thought that only active duties cause harm,

and that nondoings at most simply allow harm to happen.

Let us examine the contention that some nondoings are

causally efficacious.

It is fairly uncontroversial to hold that some

61

flowers died as a result ~f some gardener's neglect. We

commonly attribute harm to someone's neglect or inatten-

tion, particularly when the neglectful people fail to

perform an assigned task that they normally perform.

Describing the general conditions under which nondoings

can be considered efficacious is complex. To begin with,

if there are, as I maintain, harmful nondoings, those

nondoings must be only a species of nondoings, namely,

omissions.

If agent A omitted to do X, certain conditions must,

as Feinberg points out, have been met.53 Naturally, A

must not have done X. Second, A must have had a reasona-

ble opportunity to do X. A must have been able to per-

form X without unreasonable risk or cost to him or

others. Third, A must have had the ability to do X. If

people are so mentally or physically handicapped as to be

incapable of doing X, they cannot qualify as having omit-

ted to do X. Fourth, A must have known that he had a

reasonable opportunity and sufficient ability to do X.

If A does not know how to save drowning B, if A, ~' does not know that there is a rope nearby, A cannot be

said to have omitted to save B. Finally, and as

Feinberg holds, A must be reasonably expected to have

done X because of at least one of the following condi-

tions:

a. A or people in A's position ordinarily do X, or because

b. A had a special opportunity to do X in virtue of his job, his socially assigned role, or his special relationship to B, or because

c. A had a moral obligation to B in virtue of a prior agreement between them, or a promissory commitment, or because

d. for some other reason there is a moral requirement that people in the position A found himself in, do x.54

62

It is important to see that the expectations about

which Feinberg is writing can be either descriptive or

prescriptive. We might, on the basis of induction,

expect that Mr. Jones, who jogs every day at 7 a.m., to

jog this morning. If Jones intentionally fails to jog

this morning, even though he has the ability and the

opportunity, we can say that he omitted to jog. But Mr.

Smith, who never jogs and who cannot in any straightfor-

ward sense be expected to jog, cannot qualify as omitting

to jog, even though he never jogs. Besides descriptive

expectations there are prescriptive expectations, includ-

ing expectations in the form of duties derived from

special roles and relationships. Gardeners, teachers,

babysitters, nurses, and parties to contracts are all

people who are expected to perform certain tasks.

So far the examples given have been uncontroversial.

I think that it is uncontroversial to say that a child

63

was harmed as a result of a babysitter's neglect, or that

flowers died because of a gardener's inattention. I

maintain first that the nondoings satisfying the five

conditions that were listed earlier are causally

efficacious, and second that many of those nondoings will

be morally blameworthy. I say "many" and not "all"

because people (~, Nazis) can omit to perform assigned

tasks that are morally wrong. Further, some omissions,

particularly those based on descriptive expectations, may

not be so related to harm as to be culpable. (Of course,

some omissions will be blameworthy simply because they

are violations of unobjectionable contracts or promises,

and not because of any obvious harm that they produce.)

At any rate, we might consider the following example an

illustration of how an omission might be related to harm

in such a way as to be free of blame.

Suppose that Mr. Jones goes to work on time only or

at least principally because of watching Mr. Smith's

habitual 7 a.m. jog. Let us assume that Mr. Smith does

not know about Mr. Jones's reliance on him, and that for

the ·first time in ten years Mr. Smith, because of

uncharacteristic laziness, omits to jog, and that Mr.

Jones is consequently late. Even if we assume that Mr.

Jones's lateness is catastrophic, it is false that Mr.

64

Smith's omission is blameworthy, because it is not con-

nected to harm in a blameworthy way. Mr. Smith did not

violate any contract or agreement, nor did he fail to

reflect minimal decency. Finally, note that many omis-

sions that would ordinarily be blameworthy may not be

because of excusing conditions, such as innocent mistakes

or insanity.

Someone might accept most of the analysis just given,

but reject Feinberg's condition "d", which maintains that

it is reasonable to expect A to do X if there is a moral

requirement (not derived from role responsibility, con-

tract, or any other agreement) that people in A's

position do X. Presumably a libertarian will reject the

existence of general positive duties, duties to help

others grounded purely in "a common bond of humanity."

Perhaps one of the clearest examples of that duty would

be illustrated in Murphy's story, where someone can save

a stranger's life at no risk and virtually no cost.

(Someone might, as Feinberg notes, object on linguistic

grounds to talking of "duties" without reference to

special roles, offices, and relationships, and talking of

"obligations" without prior voluntary agreements. Like

Feinberg, I see the difficulty as solved by talking of

"moral requirements" to

classifiable as either

cover moral expectations

duties or obligations in

not

the

65

senses intended above.)

My position may be briefly summarized as follows. I

have held that under ce\tain conditions there is a moral

requirement to help a stranger. I have held that, when

people are specially or uniquely situated to prevent, at

little or no risk and cost, immediate danger to life and

limb, they are morally required to do so. I have been

assuming without expressly stating that the requirement

to help the endangered person is not assignable, on the

basis of role responsibilities and special relationships,

to others, such as any paramedics or other professionals

who are on the scene. I have expressed some sympathy for

Feinberg's view that intentional failures to help people

in need of MDS can be a violation of the latter's

rights. I have also held that the distinction between

doing harm and (merely) allowing harm to happen is

neither so clear nor necessarily so significant as it is

often considered by many opponents of good Samaritan laws.

We have now approached the point at which I must

address a possible libertarian response. A libertarian

might contend that I have not established that it is

proper, conceptually speaking, to describe a bad Samari-

tan's omission as partially causing,

some harm. To that objection I

already developed, the other soon to

or contributing to,

have two answers, one

be developed. The

66

first answer is containei in my discussion of the moral

significance thesis, in which I implied that, regardless

of how we analyze the causal status of failures to help

the imperiled, the case for good Samaritan laws can be

grounded in the moral and social importance of prevent-

ing grave physical harm at little or no cost and risk.

The second answer, which I shall now develop, is that

even if someone rejects my and Feinberg's views about the

moral significance thesis., bad Samaritanism can be

plausibly regarded as contributing to harm. My tack will

be to hold that the causal efficacy of nondoings will

hinge on (among other things) the tenability of the ex-

pectations governing positive performance. In short, I

shall argue that, if in a particular case the require-

ments defining omissions are satisfied, and if minimally

decent Samaritanism embodies a reasonable moral expecta-

tion or requirement, then acts of bad Samaritanism can

contribute to harm.

I shall maintain that the antecedent of that condi-

tional clause is fulfilled in cases of bad Samaritanism.

That is to say, I shall argue that cases of bad Samari-

tanism are omissions, and that they are contrary to

r.easonable moral expectations. During the course of my

argument I shall disagree first with Eric Mack, who

rejects the causal efficacy of bad Samaritanism and

67

second (in Chapter Three) with John Harris, who maintains

that all failures to prevent human harm are harmful. I

hope to forge a middle path between libertarianism (at

least as exemplified in Mack) and utilitarianism (and any

other view that places enormous stress on what is some-

times termed "negative responsibility"). My tack when

dealing with utilitarian views of rescue will be to

accept the concept of negative responsibility, but to

reject interpreting it in purely consequentialist terms.

The precise meaning of the last sentence will become

increasingly clear as discussion continues.

The question with which we are now concerned is: "Can

failures to prevent harm be said to be causes of, or

causal factors in, harms, and, if so, under what condi-

tions?" Let us discuss the paradigm we have already

described.

Jeffrie Murphy is lounging poolside, and can save a

child's life simply by reaching down and picking up the

foundering child. The example is one in which a process

has been initiated, by ignorance or accident, as a result

of which someone will drown unless someone else (Murphy)

intervenes. If we assume that Murphy violated a moral

duty (or some other "requirement") by his failure to save

the child, we can describe his failure to save the child

as an omission. Indeed, I think that one can say that

68

the child drowned as a consequence of Murphy's omission,

since the child would not have drowned had Murphy inter-

vened. Murphy's non-intervention was necessary to the

child's death, since but for that non-intervention, the

child would have lived. We have built into the case the

condition that only Murphy is near the child, and that

only he can save the child's life. Given the context

just outlined, it is no exaggeration to say that the

child's life depends on Murphy's actions.

Someone might, however, object. It might be held

that Murphy's failure to help the child cannot be part of

the causal explanation for the child's death, because

even without Murphy's presence, the child would have

died. While it is true that the child would have died

even without Murphy's being on the scene, we must be

careful here. For Murphy was on the scene and quite

capable of preventing the child's death. Given that

Murphy was on the scene, his failure to help was a

necessary condition for the child's death, because his

failure to aid was necessary to the sufficiency of the

other conditions. That is to say, the other conditions

were jointly sufficient only when Murphy's inaction was

added to them, since his help would have saved the

child. In Feinberg's words: "The principle involved is

this: when one has the power to affect events one way or

another depending on one's choice,

are subsequently affected is a

that power was exercised. 11 55

69

then the way events

consequence of the way

While I largely agree with Feinberg's point of view,

I think that his last statement requires qualification to

protect it against Eric Mack's criticism. Mack holds

that the exponent of negative causation cannot avoid

maintaining that any absence of an action (or event) is a

cause of a state of affairs if that action (or event)

would have prevented that state of affairs. Mack is

correct to an extent. That I have the power to prevent

some state of affairs I do not prevent is not by itself

enough to warrant the claim that my nondoing was a causal

factor in the state of affairs I failed to prevent. For

example, even if it is true that I could have prevented a

robbery by blowing up a bank, it does not follow that the

robbery occurred even partly as a result of my failure to

blow up the bank. Feinberg is, however, well aware of

Mack's criticism and, as we have seen, tries to answer it

by appealing to the idea of expectation. Feinberg holds

that only a subset of nondoings can qualify as omissions,

and that only omissions can qualify as effective non-

doings.

Before I elaborate on Feinberg's analysis of omis-

sions, it is important to realize that his claim that bad

70

Samaritanism might well be harmful rests on the claim

that people are (morally) expected to be minimally decent

Samaritans.

about the

Without that moral expectation no conclusion

causal efficacy of a nondoing follows.

Feinberg, however, sometimes gives the impression, inten-

tionally or not, that he believes that the power to pre-

vent some harm is in and of itself enough to warrant the

claim that failure to prevent that harm is causally effi-

cacious. My point is simply that Feinberg's last-men-

tioned statement needs to be qualified. Not all nonpre-

ventions of harm will be harmful, but only those nonpre-

ventions that are uncontroversially contrary to expecta-

tions. The qualification is in line with Feinberg's

analysis of omissions. The upshot is that since, as we

shall further see, the claim that some nondoing is a

causal factor is expectation-dependent, it is impossible

to defend a belief in the causal efficacy of nonprevent-

ings (inactions) without invoking norms or expectations

of some sort.

The preceding remarks imply that, if bad Samari-

tanism causes harm or contributes to it, that will be at

least partly because of a moral norm, namely, the norm

that requires people to behave like minimally decent

Samaritans. Note that I am not denying that bad SAmari-

tanism can contribute to harm; I am simply holding that

71

the tenability of that causal claim depends on the

tenability of a certain moral claim. I shall later (in

Chapter Three) take issue with the claim that the non-

prevention of harm to strangers can be pronounced harmful

without reference to value judgments.

We are now in a position to explain further how

Murphy's failure to help might be viewed as causally

connected to the drowning he failed to prevent. To that

end let me briefly explain some relevant concepts, such

as the concept of a causal factor. (Here I shall

elaborate on some of Joel Feinberg's distinctions.) In

giving a full explanation of how something came about,

people usually mention a large number of events and

states of affairs whose union produced the result to be

explained. Those events and states of affairs are often

called "causal factors."

For example, to explain how a fire started in a

factory, many conditions might be listed. Some will be

pre-existing normal conditions, such as the presence of

oxygen. Other conditions might be pre-existing abnormal

conditions, such as the presence of a gas leak. Still

other conditions might be precipitating events, such as

the lighting of a match. Further, a list of causal

factors might include people's failures to discharge

their duties, as when guards or supervisors neglect to

72

prevent children from playing around volatile gases.

Each one of those conditions could easily figure in an

explanation of a fire. Moreover, many of those condi-

tions might sometimes be considered "a cause" of a fire

and all of them collectively might be regarded as "the

cause" of a fire. Sometimes a condition is so saliently

and importantly involved in the production of an outcome

that we might, for some purposes, regard it alone as "the

cause." The preceding remarks will become increasingly

clear as we turn for the moment back to Murphy's case.

To the degree that Murphy had exclusive and decisive

control over the drowning child's life, his choice to

refrain from saving the child is an important part of an

explanation of the child's death. Since Murphy had the

power to prevent the death, his failure to exercise that

power played an important role in that death. Naturally,

his failure to save the child was not the only causal

factor, since there were other factors, such as the

child's panicking, his inadequate swimming ability, and

of course the pool itself. Even though there were other

causal factors in the child's death, it is nonetheless

true that Murphy's inaction was significant enough to be I

a cause, since it is appropriate to hold that the child

did, after all, die as a result of Murphy's inaction.

While it is true that the child would not have

73

drowned if anyone had saved him, only Murphy's nondoing

qualified as an omission, since only Murphy was in a

position to save the child. Given that he was in a

special position to save the child, and given the moral

requirement of minimally decent Samaritanism, it is

plausible to hold that the child died as a result of

Murphy's inaction, that Murphy's inaction was at least a

cause of the death, or a causal factor in the death.

Omissions, then, can be important causal factors, and

there are a number of causal idioms appropriate to the

description of omissions. None of which, however, is to

deny that some causal idioms cannot, without strain, be

used to describe omissions. Continuing the same line of

thought, we might say that causal idioms that embody a

determinate mode of making things happen cannot usually

be applied without strain to omissions. While B can

drown "as a result" of A's omission to throw a rope, it

is strained to say that A "killed" B, at least in any

straightforward sense. Similarly, if A neglects to tell

B where some antibiotics are, and B dies of infection,

germs, not A, in the most obvious sense "killed" B. None

of which is to deny, what I want to affirm, that B died

at least partly as a result of A's inaction, that A's

inaction or omission was an important causal factor in

the death, and that A might in some circumstances be no

74

better than a direct active killer.

While the last statement just made is extremely

important to the case for good Samaritan laws, I have no

problem with admitting that some causal idioms are not

easily used in referring to omissions. Taking another

example, we might acknowledge that it might seem strained

to say that A "caused" B's death simply by doing nothing,

that A "caused" B's death simply by failing to hand B

some medicine that was out of B's reach. Since the

active verb "to cause" is normally associated with what

might be called "active doings" and the manipulation of

objects, it cannot be used, again without strain, to

describe a situation in which someone simply lets events

run their course. An important point to be made here,

however, is that the inappropriateness of some causal

idioms does not necessarily rule out other causal

idioms. Even if it is true that, strictly speaking, A

cannot "cause" B's death by failing to hand B life-saving

medicine, A's omission might in some contexts be con-

sidered "the cause" of the death, which occurred as "a

result of" A's inactions.

In response to the restricted causation claim, we can

say that some nondoings are in fact omissions and indeed

harmful ones, in the sense that the nondoings are impor-

tant causal factors in the production of harm. Deliber-

75

ately refraining from effecting rescue can, it has been

held, be a way of contributing to the production of

harm. Whether a nondoing is an omission and whether it

is at all harmful depend on a number of conditions that

have been discussed. We can argue that bad Sarnaritanisrn

can contribute to the production of harm if it involves

intentionally refraining from fulfilling a reasonable

moral requirement. I have held that bad Samaritanism is

in fact properly so described.

So far I have tried to defend the claim that bad

Samaritanism may be plausibly regarded as harmful, but I

have

claim.

not addressed specific arguments against that

It is now time to do so. Recently, Eric Mack has

argued against the proposition that nonpreventings can

ever be causes. The principal basis for Mack's argument

is, as we have seen, that if we accept the causal effi-

cacy of nonpreventings, we shall not be able consistently

to reject the "claim that any absence of an action (or

event) is a cause of outcome Y if that action (or event)

would have prevented Y. 11 56 In short, Mack believes that

allowing nonpreventings to have causal status endorses,

by parity of reasoning, wildly promiscuous causal

ascriptions and untenable moral claims.

Mack writes:

Accordingly,

[o]ne wants to of causes that

avoid would

a characterization include among the

causes of, say, Carter's election and hence of everything for which this election is a necessary condition--for example, Brown's failure to assassinate Carter, Carter's not killing himself, Carter's failure to beat his wife in public, the public's not believing that Carter beats his wife, the nonexplosion of the solar system in 1937, the non-collapse of the galaxy in 1936, and so on.57

76

To answer Mack's criticism I shall try to show that

there are non-arbitrary principles by which to invalidate

the proposition that every earlier necessary condition

of an event is a causal factor in the genesis of that

event. Prior necessary conditions are not causes (or

causal factors), in Feinberg's words, when

To

(1) their connection with the outcome ex-emplifies no generalizations or natural laws connecting conditions of their type with outcomes of that type (this applies mainly to actions and events) or when

(2) the connection is so trivial, ob-vious, or remote that it can cast light on no conceivable perplexity, or provide a handle for no conceivable practical purpose, or reveal a stain for no con-ceivable moral inquiry (this applies mainly to inactions and nonevents).58

illustrate the first principle or condition,

Feinberg discusses an example from Hart and Honore. He

describes the example as follows.59 After exceeding the

speed limit for a while, a motorist slowed down and

eventually ran into a tree that happened to fall over and

77

land on top of his car. Had the motorist not been speed-

ing earlier, the tree would not have fallen on the car.

In the circumstance, however, it is implausible to hold

that the earlier speeding caused the accident, since

there is no causal generalization connecting driving at

any given speed with the falling of trees. That is not

to deny that there is a general causal connection between

speeding and accidents, but it is to hold that in the

example in question the earlier speeding is in no way

connected with either the driver's losing control of the

car or any other event causally asociated with car acci-

dents.

Feinberg describes the following example as illustra-

ting another case in which some conditions necessary for

a state of affairs are so remotely connected with that

state of affairs that they cannot be plausibly regarded

as causes or causal factors. He writes

John and Mary Doe move from Denver to Los Angeles when their daughter Gwendolyn is three years old. Fifteen years later she meets George, a boy in her high school class; they fall in love, marry, and produce their offspring, Elbert and Erica. But for her parents' move years earlier, Gwendolyn would never have married George (since she would never have met him). Moreover, Elbert and Erica would never have come into exis-tence, and therefore would not have stolen candy a few yars later from Mr.Economides' grocery store. The

move to Los condition connected

original necessary events, is dentally.60

Angeles, while a for these later to them only inci-

78

The connection between Elbert and Erica's theft and the

Does' move to Los Angeles is so remote that it is im-

plausible to regard the move as part of any ordinary

causal understanding of the theft.

Someone might agree that, while the connnections in

the examples so far can perhaps be excluded as causal,

they do not address those of Mack's examples in which

necessary conditions for some event are expressible in

causal generalizations. Mack argues that since there are

causal connections between public wife-beating and public

disfavor, the theorist of negative causation is committed

to holding that President Carter's failure to beat his

wife in public was a cause of his victory in 1976.

To reply to Mack requires pointing out the contextual

nature of causal explanations, particularly those expla-

nations of human actions. We require causal explan.~:ions

for various purposes, such as allaying puzzlements, dis-

covering factors enabling us to manipulate the environ-

ment (as in engineering), and assigning blame or "stain-

ing" certain causes of harm. Often in setting out causal

explanations we fix our attention on only a fairly small

number of causal factors and cite certain factors

79

as the cause of the event in question. In singling out

only certain causal factors, we pick those factors that

are particularly interesting to us, given our purposes

and concerns.

Sometimes we want an explanation for why some unusual

or surprising event occurred, as when a "teetotaler is

drunk, or an alcoholic sober; a punctual man is tardy, or

a dilatory man early; it rains in the dry season, or it

fails to rain in the wet season. 11 61

The point to seize here is that causal attributions

are often if not generally tied to expectations, either

descriptive or prescriptive. On the basis of experience

we know that, given the usual and expected amount of

rain, there will, under certain conditions, be no

famine. Further, droughts and famines are linked in

familiar causal generalizations, so that we can gain

insight into the genesis of a famine by discovering that

there has been an unusual shortage of rainfall in the

famine-stricken area. On the basis of professional

gardeners' role responsibilities, we expect gardeners

regularly to attend to the gardens that they are culti-

vating. If they normally discharge their duties but

neglect on a number of occasions to give flowers a vital

amount of water, we can attribute the death of the

flowers to their neglect.

80

We often explain the origin of a state of affairs by

reference to faulty human action, in which people ob-

viously take an interest. Since faulty human actions are

usually abnormal (i.e., are departures from what is ex-

pected descriptively and/or prescriptively), a derelic-

tion of duty, when it is a deviation from a routine, is

often a prime candidate for causal citation.

Admittedly, for anything like an adequate understand-

ing of the diversity of causal explanations we have to

realize that such explanations are highly varied, and

that not all causal explanations need employ a list of

causal factors. Sometimes, as in scientific explana-

tions, people want to know why natural regularities

occur, why, ~-, flowers bloom in the spring. "In such

cases we require long stories involving the descriptions

of diverse states of affairs and the invocation of

various laws of nature."62 Further, sometimes causal

explanations are given or sought not so much for allaying

puzzlements as for manipulating the environment. Fein-

berg writes: "Engineers and other practical persons may

be concerned to eliminate events of the kind that occas-

ioned the inquiry if they are harmful or to produce more

of them if they are beneficial. In either case, when

they seek 'the cause', they seek the causal factor that

has a handle on it ... that they can get hold of and manip-

81

ulate. 11 63 Finally, and as suggested earlier, causal ex-

planations are often sought to assign blame to human

actions.

In summary, causal explanations are of various kinds

and for various purposes. They are largely interest-rela-

tive, in the sense that the nature and the scope of

explanation will often focus on only the most salient

factors necessary for understanding events, controlling

them, or blaming people.

Given what has just been said about causal explana-

tions, one might argue against the selection of Carter's

failure publicly to beat his wife as a causal factor in

his becoming President. For if we have no reason for

thinking that Carter has ever beaten his wife, his

nonbeatings do not explain or illuminate his election,

even though the nonbeatings (at least the absence of

highly visible public beatings) could be said in a sense

to have been necessary for his election. We could, how-

ever, imagine a context in which a politician's failure

to beat his wife was causally illuminating in understand-

ing his election to office. We can imagine two politi-

cians (A and B) running for office with similar ideas,

backgrounds, and degrees of popularity. Near the end of

the campaign it is revealed--to the profound shock of the

whole town--that politician A regularly beats his wife.

Let us suppose, to make matters interesting, that

82

politician B was suspected before the election of regu-

larly beating his wife, but was rightly cleared of that

suspicion. In the context just sketched, it makes sense

to cite B's failure to beat his wife as a causal factor

in explaining his victory, which, let us suppose, was of

a wide margin. To cite B's failure to beat his wife as a

causal factor in his victory, we must imagine a context

in which B's nonbeatings might be seen as failures to do

what he is in some sense expected to do. Given that

neither Carter nor anyone else running against him was

suspected of beating his wife, Carter's nonbeating is

causally unilluminating as part of an explanation for his

election.

Feinberg gives the following example to help distin-

guish necessary conditions simpliciter from causal con-

ditions. He describes a case in which a windstorm causes

B's barn to collapse.64 The wind was not only a neces-

sary condition for the collapse of the barn but also an

illuminating causal factor that is connected in our

understanding with generalizations linking winds of cer-

tain velocities with collapses of buildings of certain

structures.65 Feinberg contrasts that example with the

following one.66 Because the damage to the barn was too

expensive to repair, the owners of the barn sell their

farm and move from Iowa to Los Angeles, where their

83

daughter fifteen years later meets a boy whom she marries

and by whom she has some children. While it might be

true that the daughter would not be rearing a California

family were it not for the collapsed barn and the de-

structive wind, the wind was not a cause of the later

events running into the endless or indefinite future. As

Feinberg says, the destructive wind cannot explain why

the family's grandchildren get good or bad grades, nor

does the wind figure in any reliable generalizations

linking windstorms with love affairs.67 In short, the

wind in the example is too remotely and tenuously con-

nected with the grandchildren's grades to explain them.

The point to seize here is that the windsto can be a

necessary condition for some later events without being

in any clear sense a cause of those events. At the very

least we can say that it is possible to give an illumina-

ting explanation of, say, the grandchildren's grades

without mentioning the windstorm.

Nonevents, like nondoings, can be either (i) neces-

sary causal conditions for happenings or (ii) noncausal

necessary conditions. As an example of (i), consider the

earlier case of an unexr cted decline in rainfall and the

resultant famine. The unexpected decline in rainfall

helps explain the famine. As said earlier, droughts and

famines are causally linked. Further, it is plausible to

84

hold in certain circumstanes that, if the rain had fallen

in the expected amount, there would have been no famine.

Feinberg says: "Failure of an event to occur when it

could reasonably have been expected explains why an unex-

pected and unusual outcome resulted. In this repect the

nonoccurrence of the rain is analogous to those inactions

which are omissions. 11 68

While the absence of rain can shed some light on a

famine, the non-explosion of the solar system in 1937

(Mack's example) is unilluminating in a scenario of

Carter's election, because there was no reason to expect

that explosion. Further, there are no puzzlements that

the non-explosion of the solar system in 1937 will

straightforwardly answer. Feinberg says:

Even someone who expected the world to end in 1937 would not find its failure to do so added any to his understanding of why Carter and not Ford was elected. There are no familiar generalizations connecting vast astronomical nonevents with the relative popularity of various types of political candidates and plat-forms.69

I believe with Feinberg that omissions, such as

Jones's failure to rescue Smith, can be causally effica-

cious without its being true that "every absence of an

action (or event) which would have prevented Smith's sub-

sequent death counts just as much as a cause of that

85

death as any other. n70 · For a person who accepts the

possibility of negative causation need not be committed

to the unreasonable proposition that any imaginable

nondoing or nonevent that could have prevented some

(actual) state of affairs is a cause of that state of

affairs.

I want to turn now to a brief examination of how Mack

tries to answer the plausible claim that some forms of

inactivity can result in injury, as when A contracts with

B to save him should the waters in which B swims prove

dangerous. Mack will allow for omissions to be effective

only when they are omissions to discharge some specially

generated positive duty. Agent A would have a positive

duty to save B from drowning if,~·, A threw B into

dangerous waters (against B's wishes), or A coerced B

into the water at gunpoint, or A contracted with B to

save B if the waters proved dangerous. 71 What Mack is

doing is advancing morally and legally unexceptionable

cases in which someone, A, by his voluntary actions,

generates a special positive duty to aid someone else,

B. Accordingly, Mack writes:

Such a prior causal role account of the emergence of positive duties helps ex-plain why one might want to say ... that it is specifically when A's inactivity in-volves a violation of B's rights that A's omission causes injury to B. For, on such a prior causal role account of positive duties, when A violates a

positive duty to B there has been some (prior) act of A which does eventually result in B's loss. When A has violated some positive duty to B we can say that A's inaction completes the causation of B's harm, set in motion by A's prior actions ... But if we do not want mislead-ingly to shift attention away from this A's prior actions, it would be better to say that this A's subsequent inaction allows the completion of A's causation of injury to B. A current "duty to care" simply is the form which the duty not to harm takes within a context such that harm will ensue from A's past act unless A intervenes now. When the duty is vio-lated, it is the prior endangering act which causes the harm.72

86

Later Mack writes:

In such cases [i.e., cases of failures to discharge special positive duties] what is crucial for determining a person's liability for inaction is the causal background of the perilous conditions, not a sui generis positive duty which somehow appears when individuals confront perilous conditions that they can modi-fy. 73

Mack's strategy is clear. First, like a good liber-

tarian, he wants to tie legal responsibility to the

causation of harm. Second, and in accordance with his

libertarianism, he wants to restrict (conceptually) all

production of harm to "positive" actions, such as rape,

theft, battery or failures to perform unexceptionable

special positive duties. Third, and again in keeping

with his libertarianism, he wants to reject the

87

proposition that intentional failures to effect rescue in

good Samarian situations produce harm. I agree with

Mack's contention that failures to discharge the positive

duties he mentions constitute violations of people's

rights and are, and ought to be, punishable by law. I

also agree that the failures he mentions are in some

plausible sense harms. But where I disagree with Mack is

in his contention that failures to act as minimally

decent Samaritans cannot be plausibly regarded as harming

people or in any way violating their rights. It is well

to remember that the crux of Mack's argument against

regarding bad Samaritanism as harm-producing is the

proposition that so regarding bad Samaritanisrn commits

one to wildly promiscuous causal citations in which any

imaginable non-doing or non-event that could prevent a

state-of-affairs must be regarded as a cause of that

state-of-affairs. Against Mack I have maintained that

theorists of negative causation can appeal to non-ar-

bitrary principles by which to limit causal attributions

to reasonable bounds.

I want now to argue that Mack's view of positive

duties is at times as inescapably normative as any view

of negative causation. We have seen that Mack's strategy

is to hold that any putative case of negative causation

can be ultimately resolved into a case of positive

causation.

88

"Elsewhere I have defended the view that if A

has a positive duty to B to do X, it will be because of

A's causal role in B's being in a position such that harm

will ensue for B unless A does X. "7 4 My view is that for

Mack to give his account of positive duties he will have

to resort to a move he will not allow theorists of nega-

tive causation, namely, an appeal to moral norms. Let me

explain.

As we have just seen, Mack wants to ground positive

duties in voluntary actions. Specifically, he holds

that, if A has a positive duty to B, it will be because

of A's actions, which will involve A's putting Bin a

position such that harm will ensue unless A prevents it.

To maintain his thesis, Mack will have to be unacceptably

partisan in describing A's causal role, as I shall now

illustrate. Suppose that A and Bare acquaintances, and

that A entices B to go swimming with him in a river where

there happen to be no other swimmers. Suppose further

that if A had not enticed B to go swimming in the river,

B would not have gone. Suppose finally that B, who is

not a good swimmer, founders and calls for A, who was

never particularly fond of B and who therefore ignores

B's screams and calmly watches B drown. Let us assume

that A engaged in no contract to help B, made no threats

to B, and in no way incapacitated B. I have sketched a

89

situation in which A played a clear causal role in B's

being in a position such that harm will ensure for B

unless A does X, i.e., unless A saves B from drowning.

Let us contrast the example just described with the

following example. Suppose B goes to the same river

described above and spots C, who is a stranger. Suppose

further that B contracts with C to save B if B begins to

drown. Let us suppose still further that B would swim in

the dangerous waters even if no one else were present.

In this case it is, strictly speaking, false to say that

C, in any clear sense, was causally responsible for plac-

ing Bin a precarious situation. If Mack believes that C

is morally obligated to help B, and that A (in our last

example) is not morally obligated to help B, then his

position requires not so much citing causal differences

between examples as appealing to some moral norm expres-

sing the importance of keeping one's contracts. I make

that claim because, from a non-moral point of view, the

causal connection between A's enticement of Band B's

drowning is clearer and more straightforward than the

(causal?) connection between C's contract with Band B's

being placed in a position in which he will drown unless

C helps him.

Even if the libertarian could consistently maintain

that A is morally obligated to B because of A's use of

enticement, the libertarian

C's causal role in B's death

prescriptive expectation, in

that people should keep their

90

will have trouble explaining

without relying on some

this case the expectation

contracts. For B would

have drowned even if Chad not promised to save him. My

point is that Mack, in holding that violations of special

positive duties can produce harm, is appealing to moral

expectations no less than an exponent of negative causa-

tion. The most obvious difference between Mack's appeal

and, say, Feinberg's appeal is that Mack is appealing to

moral expectations that have already been legally ex-

pressed within Anglo-American law. Mack's position is

then not morally neutral.

I believe that any reasonable analysis of omissions

and their causal status will have to rely on some idea of

descriptive and prescriptive expectations. It is plausi-

ble to hold that a relatively small class of nondoings

(omissions) can produce harm. Such a position will rely

on some idea of expectations, but that reliance is unob-

jectionable. Where legitimate controversy lies is in the

nature and scope of the expectations. We have no hesi-

tancy in attributing the death of some flowers to the

inattention of the professional gardener in charge,

because the role responsibilities of professional

gardeners are uncontroversial. But suppose someone

91

maintains that the United States government is causally

responsible for all the overpopulation in the Third World

because and only because the government has not steri-

lized those starving people against their will. That

claim is highly contentious because there are no clear

descriptive or prescriptive expectations on which it

could be based. Indeed, there are, if anything, moral

expectations contrary to any prescription calling for

systematic compulsory sterilization.

Both Feinberg and I think that from the standpoint of

both received and critical morality there are fairly un-

controversial moral norms requiring Samaritanism. The

moral norms in question condemn failures to prevent grave

injury or death at minimal risk and cost. In Feinberg's

words: "The presumptive case for bad Samaritan statutes

rests on the social importance of avoiding, at

costs, serious harms to personal

claim that

interests,

imperiled

reasonable

and the

individ-plausibility of the moral

uals have a right to be saved by those who can do so

without unreasonable risk, cost, or inconvenience. 11 75

Like Feinberg, I believe that good Samaritan statutes can

be reconciled with the harm principle, or at least the

harm principle supplemented by a principle requiring the

prevention of easily preventable grave harm. (I shall

explain the basis of that supplementation soon.)

92

For reasons I have already discussed I believe that

in good Samaritan situations (intentional) failure to

effect rescue is a way of causing harm. If I am right,

good Samaritan laws can be based on some fairly straight-

forward version of the harm principle. If my causal

analysis of omissions is incorrect, then an exponent

could argue for what Feinberg takes to be a modified

version of the harm principle. 76 For if "not-prevent-

ings" are only sometimes as morally serious as harmings,

then someone might argue for Feinberg's expanded liber-

ty-limiting principle:

It is always a good reason in support of criminal legislation that it is necessary either to prevent people from harming (causing harm to) others or to get them to make reasonable efforts""'" to prevent others from being harmed. It is especially clear that the distinction between harming and not-preventing is morally insignificant in precisely those cases that would be covered by bad Samaritan statutes, where the effort required is minimal and intention, motivation, and degree of harm are the same as in the corresponding case of active causation.77

Most people would, I believe, concede that it is

reasonable for the law to have as a general goal the

prevention of harm. Some people will, though, hold that

where the harm is not "actively caused" but the product

of omissions, the law must be careful to avoid unreasona-

93

bly limiting personal liberty. While I agree with the

concern about liberty, I believe that there are princi-

pled ways of so restricting the requirement to prevent

the grave harm involved in good Samaritan emergencies

that the limitation of liberty will be reasonable. Mini-

mally decent Samaritans will be required to prevent grave

injury or death only in situations in which they can do

so at little or no risk and cost and in which no profes-

sional rescuer or anyone else is adequately effecting

rescue. In short, minimally decent Samaritans will be

required to prevent grave injury or death in situations

in which there are no other effective ways of preventing

the harm.

Although I think that I have plausibly answered the

most influential arguments against good Samaritan laws,

there are people who maintain that minimal duties of

rescue are morally unsatisfactory because they pitch

duties at too low a level, and do not require enough

effort and sacrifice from people. In response to those

people I shall soon turn to examining the case for

extensive duties of rescue in Chapter Three, where I

shall evaluate the arguments of John Harris and Peter

Singer.

IV. Since my position on good Samaritan laws resembles

94

the position of Joel Feinberg, from whom I have borrowed

some ideas, it is well to summarize the respects in which

my view resembles and differs from his. I shall first

discuss the similarities and then discuss the differ-

ences. As should, I hope, be clear, I basically agree

with Feinberg's case for good Samaritan laws. Like him,

I believe that the most influential arguments against

good Samaritan laws are unconvincing, and that the laws

will follow from either the harm principle or (less

controversially) a supplemented harm principle, requiring

the prevention of grave physical harm in situations in

which that prevention entails little or no risk and

cost. Also like Feinberg, I believe and have argued that

failures to act as minimally decent Samaritans can be as

morally serious as the "direct" and deliberate harmings

of "positive" actions.

My case for good Samaritan laws does, however, differ

from that of Feinberg in the emphasis and coverage of

certain issues. For example, I supplemented his dis-

cussion of libertarianism by directly attacking as logi-

cally inconsistent a popular libertarian critique of good

Samaritan laws. My tack was to enlarge on Feinberg's

analysis of omissions and to criticize in detail Eric

Mack's specific argument against negative causation. By

outlining a theory of negative causation, I tried to

95

answer Eric Mack's criticisms, and tried to give reason

for rejecting his contention that all plausible "duties

to care" are ultimately simply duties not to harm those

whom we owe special treatment because of our special

relations to them.

Unlike Feinberg in his discussion of libertarian

views of rescue in his book, The Moral Limits of the Law,

Vol. 1 (Oxford: Oxford University Press, 1984), I have

spent a good deal of time describing and criticizing the

libertarian assumption that, by invoking the ideas of

contracts and special relations, the libertarian can give

a value-neutral definition of" harmful omissions." Fur-

ther, I emphasized more than Feinberg that whether bad

Samaritanism can be plausibly regarded as harmful depends

on the normative claim that we are morally required to

act as minimally decent Samaritans. If A is morally

required to throw a rope to B, who is drowning, and A

deliberately refrains from throwing the rope, it is, I

have argued, plausible to hold that B drowned at least

partly as a result of A's failure to throw the rope.

Finally, my discussion of good Samaritan laws differs

from that of Feinberg in that I plan to devote (in the

next section) more attention to the task of reasonably so

defining the moral requirement to prevent harm as to

avoid countenancing over-restrictive paternalistic laws

96

or over-extensive duties of rescue.

V. I must now discuss the issue of legal paternalism.

The issue of paternalism arises because I have maintained

that it is proper for the law to prevent harm, even when

the harm is neither deliberately nor negligently caused.

Legal paternalists argue that the law should prevent not

only harm to others but also harm to oneself, i.e.,

self-inflicted harms. Some legal paternalists try to

justify paternalism as "protecting" or "rescuing" people

from themselves. I shall now argue for a highly quali-

fied principle of legal paternalism.

While almost everyone agrees that the law ought to be

aimed at deterring A from deliberately or negligently

harming B, people argue over whether A ought to be

legally required to prevent harm to B that A in no way

initiates. Typically, in discussions of good Samarita-

nism it is assumed that the endangered person wants to be

helped. I too have made that assumption, and have argued

that the law may properly require rescue, even when the

potential rescuer has not initiated the peril. The ques-

tion now arises: If the law ought to be concerned with

the prevention of harm that is neither deliberately nor

negligently caused, should the law be concerned with

preventing a person from harming

viously talking about paternalism, by

himself?

which

We are ob-

I mean in-

97

terference with people's freedom to protect them from

injuring or otherwise harming themselves. Paternal is-

tic reasons appeal to people's welfare, needs, interests,

or happiness. Some laws often cited as motivated by

largely if not entirely paternalistic concerns are (i)

laws forbidding suicide or attempted suicide, (ii) laws

forbidding women and children to work at certain jobs,

(iii) laws forbidding people to swim in areas where there

are no lifeguards, (iv) laws requiring people to contri-

bute to their own retirement, and (v) laws forbidding the

use of certain drugs.

Any contemporary discussion of paternalism should

look seriously at the views of John Stuart Mill, who

generally opposed paternalistic laws except for backward

societies, children, and presumably retardates. Gerald

Dworkin expresses Mill's case against paternalism as

follows:

1. Since restraint is an evil the burden of proof is on those who propose such re-straint.

2 .. Since the conduct which is being sidered is purely self-regarding, normal appeal to the protection of interests of others is not available.

con-the the

3. Therefore we have to consider whether reasons involving reference to the indi-vidual's own good, happiness, welfare, or interests are sufficient to overcome the burden of justification.

4. We either cannot advance the interests by compulsion, or the attempt to do so involves evils which outweigh the good done.

5. Hence the promotion of the individual's own interests does not provide a suffi-cient warrant for the use of compulsion. 78

98

Although the argument is fairly persuasive, it is not

without difficulties, located largely in premise "4." but

also in premise "2.". Some legal paternalists might

reject the view that there are many practices or habits

that are "purely self-regarding." These objectors might

argue that most people have friends and family who care

about their welfare and who will be at the very least

emotionally hurt by any harms befalling those they care

about. Although I do agree that happiness often depends,

at least to some degree, on the well-being of people whom

we like or love, the paternalist who argues, on the

ground just mentioned, that almost all acts and habits

are other-regarding is possibly opening a Pandora's box.

I make that claim because the paternalist would then be

suggesting the possibility that the law ought, insofar as

it is able, to criminalize all risky or otherwise impru-

dent acts. Mountain-climbing, race-car driving, ciga-

rette-smoking, and excessive drinking are all risky and

sometimes dangerous. Supposedly in the United States

alone at least 300,000 people die annually because of

99

habi t.ual

broadly

smoking. If we define "other-regarding" as

as has been suggested, then we would be required

to say that, by harming themselves, cigarette-smokers are

indirectly harming their friends and family members.

Were Mill living today he would probably hold that

people have a right to harm themselves by smoking, pro-

vided that their smoking does not directly harm others.

If, as seems likely, smoking can be dangerous to non-

smoking by-standers who inhale the smoker's fumes, Mill

would consider the possibility of laws restricting the

practice of, say, smoking in public buildings. My point

is that, while the distinction between self-regarding and

other-regarding

times useful,

conduct is

particularly

not

for

always

drawing

clear,

certain

it is at

other

distinctions, such as the distinction between private and

public cigarette-smoking. Further, if we refuse to

recognize the distinction, or draw it so broadly as to

make nearly all acts and practices other-regarding, we

could limit freedom without sufficient cause. For a

person who cares about individual freedom should also

care about allowing people to take risks, at least those

risks that are the product of well-informed choice and

are not obviously endangering others. The taking of

risks and the making of mistakes are, after all, often

necessary to moral growth.

100

Even if we waived considerations of autonomy and

freedom, we should recognize that the criminalization of

all risky and imprudent behavior (including such behavior

as smoking, race car driving, mountain-climbing, and

candy-eating) would most likely be extremely undesira-

ble. It would create an enormous amount of frustration,

and it would place enormous burdens on an already over-

taxed criminal justice system, in which courts and

prisons are enormously overcrowded.

In thinking about paternalistic laws, it is well to

emphasize the following three contentions. First, since

coercion is generally undesirable, it should be restric-

ted to cases in which there are no equally effective non-

coercive ways of achieving the same goals. Second, and

relatedly, we should not forget what Mill emphasized,

that there are many informal ways of regulating imprudent

conduct, such as giving advice, presenting people with

good role models, teaching them, criticizing them, and

even ostracizing them. Third, and finally, we should be

wary of paternalistic laws because a great deal of op-

pression has been "justified" by appeals to paternalism.

Consider,~' the historical treatment of women and

slaves.

Given that some sort of distinction between self-re-

garding and other-regarding practices is sustainable,

101

Mill's case will rest basically on premise "4.", holding

that paternalism is either impracticable or disutile.

"Mankind are greater gainers by suffering each other to

live as seems good to themselves than by compelling each

other to live as seems good to the rest. 11 79 Mill be-

lieved that agent A is nearly always the best judge of

his own interest and welfare, and nearly always a better

judge than agent B, a legislator who has probably never

met A. Of each normal adult Mill had this to say:

[W]ith respect to his own feelings and circumstances the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else. The interference of society to overrule his judgment and purposes in what only regards himself must be grounded on general presumptions which may be altogether wrong and, even if right, are as likely as not to be mis-applied to individual cases, by persons no better acquainted with the circum-stances of such cases than those who look at them merely from without.BO

Mi 11 al so con tended that ''the strongest of al 1 the argu-

ments against the interference of the public with purely

personal conduct is that, when it does interfere, the

odds are that it interferes wrongly and in the wrong

place. 11 81

Mill believed that most people want, almost in-

stinctively, to regulate others' conduct, even when that

conduct in no way harms others. He drew some historical

102

examples from religion, such as the Puritanical banning

of theatre and other public amusements and the Islamic

dietary prohibitions, which have the

believed, plausibly, that societies,

theocratic, will almost naturally

liberty much more than is required for

harm.

force of law. He

particularly if

favor restricting

the prevention of

Mill's case against legal paternalism rests largely

but not wholly on a fairly straightforward appeal to the

principle of utility. I say "not wholly", because Mill

in On Liberty appeared to attach inherent value to indi-

viduality and personal autonomy. The utilitarian case

against legal paternalism has sometimes been attacked--

believe it or not--by some utilitarians. Indeed, four-

teen years after the publication of On Liberty, the legal

scholar Sir James Fitzjames Stephen held, in Liberty,

Equality, Fraternity, that he saw no good evidence for

believing that most people are so prudent that they can-

not be helped by paternalistic laws. Stephen accepted

the principle of utility, but held that it is possible if

not probable that utilitarianism might require legal

paternalism, at least for some conduct. Interestingly,

H.L.A. Hart, who is obviously in sympathy with the spirit

of Mill's thought, believes that Mill reposed an unrea-

listic degree of confidence in the prudence of the

103

average person. Hart believes that Mill endowed the

average person with the psychology of a rational "middle-

aged man whose desires are relatively fixed, not liable

to be artificially stimulated by external influences; who

knows what he wants and what gives him satisfaction or

happiness; and who pursues these things when he can. 11 82

I have suggested that Mill's esteem for liberty

rested largely but perhaps not wholly on utilitarian

grounds. He believed that, generally speaking, a society

that encourages a high degree of diversity, pluralism,

and personal freedom will, other things being equal, tend

to be happier than a society in which diversity and

freedom are condemned. He believed that, if people are

to be happy, they must allow for the free pursuit of

ideas and encourage personal freedom and diverslty.

Mill, though, did not, many will argue, rest his anti-

paternalism on purely utilitarian grounds; for his

respect for liberty and individuality does not appear to

be defended on exclusively utilitarian grounds.

While Mill probably thought that a tolerance for

individuality would, at least in the long-run, promote

social utility, it is perhaps fair to say that his esteem

for liberty sometimes appears to be at least as much a

respect for its inherent value as a concern for social

utility. Editor Gertrude Himmelfarb writes:

The hope for the future, Mill concluded, and clearly the purpose of his own book [On Libe~], was to convince the intel-ligent part of the public of the value of individuality~ se--"to see that it is good there sliouI-a- be differences, even though not for the better, even though, as it may appear to them, some should be for the worse. 11 83

104

As just suggested, Mill sometimes appeared to attach

inherent value to the ideals of autonomy and individual-

ity. Thus Dworkin writes:

When Mill states that "there is a part of the life of every person who has come to years of discretion, within which the in-dividuality of that person ought to reign uncontrolled either by any other person or by the public collectively," he is saying something about what it means to be a person, an autonomous agent. It is because coercing a person for his own good denies this status as an independent entity that Mill objects to it and in such absolute terms. To be able to choose is a good that is independent of the wisdom of what is chosen. A man's "mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode." It is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way.84

That there is a non-utilitarian strain in Mill's

respect for liberty and his antipathy toward paternalism

is further supported by his opposition to the practice of

selling oneself into slavery. For "the reason for not

interfering, unless for the sake of others, with a

105

person's voluntary acts, is consideration for his liber-

ty.1185 Mill held that, while the basis for non-inter-

ference is autonomy, selling oneself into slavery is an

act designed to destroy one's autonomy. "He is no longer

free; but is thenceforth in a position which has no lon-

ger the presumption in its favor that would be afforded

by his voluntarily remaining in it. The principle of

freedom cannot require that he should be free not to be

free."86

Since from a utilitarian point of view it is diffi-

cult to see how relinquishing one's freedom can be for-

ever ruled out~ priori, it is tempting to interpret Mill

as at least sometimes suggesting that the values of

autonomy and individuality are inherently significant and

worthy of an esteem not expressible in purely utilitarian

terms. Part of the difficulty in interpreting Mill

doubtless lies in his broad understanding of "utility".

For he saw utility as based on what he regarded as the

permanent interests of man as a progressive being. It is

well to entertain the possibility that Mill's understand-

ing of utility was so liberal that he might have thought

that some ideals often inherently valued, such as auto-

nomy and individuality, are valuable also for broadly

utilitarian reasons. Whatever Mill thought, it is not

clear whether his unaccommodating passion for liberty

106

and his animus toward paternalism can be justified by any

straightforward appeals to social utility.

At any rate, I want to develop what some people take

to be Mill's non-utilitarian esteem for personal autono-

my, because I believe that it is reasonable to attach a

sig- nificance to autonomy that cannot be completely cap-

tured in utilitarian thinking, which might require ad-

justing one's valuation of autonomy in some measure to

the current Zeitgeist. Against some views of utilitar-

ianism someone might argue that expressions of autonomy

and individuality are always important, even, or

especially, in societies where the individualist

diminishes utility. In examining the scope for a prin-

ciple of legal paternalism, I believe that a concern for

social utility must be seen as different from, and

possibly competitive with, the value of personal auto-

nomy. We should look at both the consequences of pre-

venting self-inflicted harms and the value of free though

perhaps imprudent actions.

I want now to gesture toward a highly qualified

principle of legal paternalism. To that end I want to

discuss cases for which paternalism is clearly warran-

ted. First, let us look at the situation of children.

Parents not only may but also should restrict their

107

children's liberty in order to protect them. Because of

lack of experience and knowledge, children are often una-

ware of both the dangerous consequences of their actions

and the value of deferred gratification. Children must

be so trained as to develop healthful habits, so that

they will be able to fend for themselves. The older and

the more experienced the child is, the less justification

there is for paternalistic interference. Ideally, chil-

dren should be given an ever-increasing degree of freedom

as they mature so that they will be able to handle an in-

creasing degree of responsibility. Failure to give chil-

dren an increasing degree of freedom and responsibility

as they grow will almost certainly produce immature

adults.

The second group of people for whom paternalistic

interference is clearly warranted will be the mentally

retarded. While the mentally retarded should be given a

degree of freedom proportional to their capacity for

handling it, there is a case for paternalistically

interfering to some degree in the lives of the mentally

retarded people who are demonstrably incapable of sur-

viving by themselves. The third group of people for whom

paternalism is appropriate will be those people who are

inflicting serious harm on themselves in mental condi-

tions in which they are almost certainly unaware of what

they are doing. Consider a case in which a man under the

108

influence of LSD begins mutilating himself for no

apparent reason. He might think that he is an orange, or

be responding to the sadistic suggestions of a crowd of

on-lookers taking advantage of his abnormally suggestible

state. Because of their abnormal condition, people on

LSD might well have no idea of the exact nature or conse-

quences of their conduct. If people on LSD want to jump

out of windows because they believe that they can fly, it

seems reasonable to prevent them from jumping and indeed

legally to require that prevention in cases in which

there is little or no risk to potential rescuers. For we

can reasonably believe that, if those people knew exactly

what they were doing and the consequences of their

action, they would almost certainly not want to jump.

The further we move from cases involving pre-rational

mental conditions (i.e., cases involving children) or

clearly dangerously irrational mental conditions (e.g.,

mental conditions resulting from chemically altered

states), the more difficult it is to justify legal pa-

ternalism, with one exception. The exception will be

those cases in which a rational person contracts with

others to regulate his conduct--forcibly if necessary--

during times in which his judgment will be so clouded

that he will (in his own eyes) need to be compelled to

act reasonably. The classic and indeed classical case is

109

that of Odysseus, who commanded his men to tie him to the

mast to protect him against the enchanting songs of the

Sirens. More mundanely, a phobic person might ask a

friend to prevent him forcibly from escaping the object

of his fear so that he can conquer the fear. More po-

litically, an electorate, as Gerald Dworkin says, might

give a mandate to legislators to pass laws, such as those

governing tax increases, that the electorate may, at the

time of enforcement, find necessary but unpalatable.87

The rationale

belief that it

for the exceptions

is reasonable for

just mentioned is the

people to relinquish

some of their freedom for reasons of prudence.

Controversy arises when adults who suffer from no

mental deficiencies or abnormalities desire to do what

While most people consider imprudent if not irrational.

most of us may believe that it is normally irrational

people to refuse life-saving medical treatment

for

on

religious grounds, the Christian Scientist might object

to the State's compelling him to receive a blood trans-

fusion. Although I regard the Christian Scientist's view

of medicine as imprudent and indeed irrational, I believe

that an adult has a right to refuse medical treatment on

religious grounds. Acute controversy might arise when a

young child of a Christian Scientist requires a blood

transfusion to live. Although I normally oppose State

110

interference with parenting, I think that a case can be

made for approving of State intervention in cases con-

cerning children who may be too young fully to understand

the nature and gravity of their actions. The matter here

is somewhat tricky, partly because, if the Christian

Scientist parents are effective at socializing their

children, their children could well grow up to share

their parents' attitude toward medicine. Someone might,

however, argue that in a case of life and death the State

has no business assuming that children will eventually,

as adults, adopt the same highly imprudent attitudes as

their parents. Children's religious attitudes do after

all sometimes change, particularly as a result of formal

education. Further, regardless of what attitudes

children might have when they mature, many children,

particularly young children, will not be able fully to

understand the nature and gravity of their actions.

Gerald Dworkin considers another case in which people

may make choices on the basis of what many if not most

people would consider an irrational weighing of values:

the wearing of seat belts.88 He maintains that it is

irrational for the average person, with average desires,

consistently to avoid wearing seat belts simply because

of the slight inconvenience of wearing them. He thinks

that people can attach too much weight to the incon-

111

venience of wearing seat belts for one of two reasons:

Either the people irrationally disvalue a small degree of

inconvenience over the value of safety and freedom from

harm, or they realize intellectually, but not viscerally

and emotionally, the risks and probabilities involved.

Dworkin puts himself into the latter class of people,

who, through weakness of will, ignore the dictates of

their intellects. Note that in the latter class people

realize that it is wise to wear seat belts, but they do

not act in accordance with their better judgment. The

case of the adult Christian Scientist who refuses the

blood transfusion is a case in which someone's valua-

tional weighing obviously contradicts normal prudence.

Someone might argue that it is easier to justify pater-

nalism in the seat belt case than in the blood trans-

fusion case, because State interference in the blood

transfusion case is a direct interference with a person's

actual desires and preferences that are deeply rooted in

his values. Although the failure to wear seat belts is

usually much less dangerous than the failure to receive a

possibly life-saving blood transfusion, interference in

the transfusion case is a serious infringement of some-

one's autonomy. (Here is a case in which the values of

autonomy and utility might well clash.) We have been

assuming that the Christian Scientist's attitude toward

112

medicine is fairly fixed, and that the attitude partly

defines the kind of person he takes himself to be. I

should add that, while I think that interference in the

seat belt case is less problematic than in the case of

the Christian Scientist, I consider interference in both

cases problematic.

In discussing legal paternalism we should bear in

mind a point that I have already made and that was em-

phasized by J.S. Mill, namely, that there are many infor-

mal and non-coercive ways of influencing people's be-

havior. A respect for autonomy implies a presumptive

repugnance for coercion. I want to argue that people

sometimes if not often have a right to take risks, even

when they are imprudent risks. Let me explain.

Race-car driving, mountain-climbing, and habitual

cigarette-smoking are all dangerous and sometimes fatal.

It is highly imprudent for the average person to smoke

habitually. Nonetheless, it is reasonable to allow

people voluntarily to increase their risk of lung cancer

and a number of other diseases. Since most adults in

this society know that they are endangering their health

by habitual smoking, I think that it would be difficult

to justify interference with their smoking in private or

among consenting adults. For we are talking here about

the principally self-regarding actions of normal adults

113

who are fairly well aware of the nature and likely conse-

quences of their conduct.

Qualifications about "normal adults" who are engaging

in "self-regarding actions" with "normal awareness" are

important to distinguishing between legitimate and

illegitimate paternalism. Indeed, the further a case is

from normal conditions, the more defensible is legal pa-

ternalism, assuming of course that people are threatening

to do harm. Accordingly, some of the clearest cases for

legal paternalism are, as earlier mentioned, the regula-

tion of grossly retarded people, little children, and

people under the influence of certain incapacitating

drugs, such as LSD. To the degree either that people's

imprudent conduct can directly harm others (as in drunken

driving) or that people are ignorant of the nature or

likely consequences of their imprudent actions, an anti-

paternalistic appeal to freedom and autonomy should be

unavailing. While habitual smoking is usually imprudent,

and even so judged by the average smoker, smokers, like

any normal adults, should have a legal right sometimes to

act imprudently, provided again that they are engaging in

principally self-regarding conduct while they are in

normal mental states. (The key idea here is that the

mental states of people should not so impair their judg-

ment that the people do not understand the nature and

114

likely consequences of their actions.)

The question arises how we might try to reconcile a

presumptive repugnance for paternalistic coercion with

the reasonableness of some paternalistic regulations.

The problem here is that of line-drawing, of so qualify-

ing a principle of legal paternalism as to harmonize it

with defensible views about the importance of both

freedom and the prevention of harm. Before we can draw

lines, we must first draw some distinctions. Since

deliberately aiming at self-harm is presumptively

irrational, we should distinguish those cases in which

someone aims at (serious and immediate) self-harm from

those cases in which someone creates a risk of self-harm

as a result of aiming at non-harmful ends. Deliberately

swallowing a large dose of potassium cyanide illustrates

the first case, while most sky-diving illustrates the

second.

I do not want to create the impression that people

cannot irrationally pursue non-harmful ends by unreason-

able means, but simply want to hold that the clearest

cases of presumptive irrationality are those in which

someone deliberately aims at serious and immediate self-

harm. It is in those cases that the issue of paternalism

seriously arises, because it is in those cases that there

is a presumption against the existence of free and in-

115

formed choice. It is Understandable and reasonable that

we desire to prevent people from harming themselves in

circumstances in which it is reasonable to believe that

they would not harm themselves if they were fully aware

of the nature and likely consequences of their actions.

As I have suggested, the closer we are to cases in which

someone is deliberately inflicting on himself serious and

immediate harm, the closer we are to conduct warranting

legal paternalism. (I shall soon have more to say about

deliberate infliction of self-harm.)

We should also distinguish between reasonable and

unreasonable risks. Although it is not possible to

define "unreasonable risk" with mathematical exactitude,

there are some clearly unreasonable risks.

berg's words:

In Joel Fein-

It is unreasonable to drive at sixty miles an hour through a twenty mile an hour zone in order to arrive at a party on time, but it may be reasonable to drive fifty miles an hour to get a preg-nant wife to the maternity ward. It is foolish to resist an armed robber in an effort to protect one's wallet, but it may be worth a desperate lunge to protect one's very life.89

Further, it is clearly unreasonable, indeed irrational,

for someone (who, say, is drunk) to play Russian roulette

to demonstrate his "masculinity." It is well to concede

here that determining the reasonableness of some action

116

or habit can be controversial because it requires not

only calculating risks and probabilities but also

measuring the disvalue of risks against the value of the

risky behavior. If the risk to one's health is serious,

immediate, and likely, and the value of the risky be-

havior is reasonably regarded as trivial, taking the risk

is clearly unreasonable. I have already given the

example of psychologically insecure men playing Russian

roulette to demonstrate their masculinity. Morally

speaking, if people know that they can, with little risk

and cost, probably prevent somebody from engaging in

Russian roulette, they ought to try to dissuade him.

There is, moreover, a case for legally requiring the

dissuasion. It is probably reasonable to require sur-

viving Russian roulette players to be questioned by a

panel of psychologists or other similarly qualified

people to determine the degree to which the roulette

players' actions were voluntary. (I shall soon have more

to say about the test of voluntariness.)

As I have held, the case for paternalistically regu-

lating the conduct of adults is most strong in one or

more of the following situations: (i) when people are

deliberately aiming at serious and immediate self-harm

(e.g., the taking of potassium cyanide); (ii) when people

are using highly dangerous means to pursue ends plausibly

117

regarded as trivial (~, Russian roulette playing by

"machismo-demonstrators"); and (iii) when people are

engaging in highly dangerous activities while they are in

seriously impaired mental states (~, preparations to

jump from a window made by someone who has just taken

LSD). The further we are from those abnormal conditions,

the more dubious is paternalistic interference in the

lives of adults. Accordingly, while the law might be

properly concerned with cyanide-swallowing and Russian-

roulette playing, it should probably have nothing to do

with the beer-drinking contests of adults. For the risk

of serious and immediate harm from overconsumption of

beer is far less than the risk of harm from Russian

roulette-playing, since the possibility that any one

beer-drinking binge will cause serious and irreversible

harm is low.

Joel Feinberg lists the following considerations as

relevant to evaluating the reasonableness of risk-taking:

If there is time to deliberate one should consider: (1) the degree of probability that harm to oneself will result from a given course of action, (2) the serious-ness of the harm risked, i.e., "the value or importance of that which is exposed to the risk," (3) the degree of probability that the goal inclining one to shoulder the risk will result from the course of action, (4) the value or importance of achieving that goal, that is, just how worthwhile it is to one (this is the intimately personal factor, requiring a

decision about one's preferences, that makes it so difficult for the outsider to judge the reasonableness of a risk), and (5) the necessity of the risk, that is, the availability or absence of alterna-tive, less risky, means to the desired goa1.90

118

From the discussion so far it should be clear why I

hold that not all risk-taking is imprudent, and that not

all imprudent risk-taking should be the object of legal

sanction. In determining the scope of imprudent conduct

that the law may legitimately proscribe, it is important

to distinguish the degree to which the conduct is volun-

tary. If we look at the assumption of a risk on the

model of what Aristotle called "deliberate choice," we

can make the following judgment. A risk is voluntarily

assumed to the degree that it is assumed in consideration

of all relevant facts and probable consequences and in

the absence of coercion and compulsion. Accordingly,

Feinberg writes: "To whatever extent there is neurotic

compulsion, misinformation, excitement or impetuousness,

clouded judgment (as, e.g., from alcohol), or immature or

defective faculties of reasoning, the choice falls short

of perfect voluntariness. 11 91

The closer a person's assumption of risk is to the

nonvoluntary, the more defensible is paternalistic

interference. Hence we feel uninhibited about paterna-

lism in the lives of young children, or adults who are

119

under the influence of LSD, or even alcohol. Given the

distinctions just drawn, we can see why a categorical

rejection of paternalism is indefensible: It ignores, or

at least trivializes, the varying degree to which

people's doings are not within their rational control.

We can also see why a keen de re for paternalistic laws

is problematic: It betrays a failure to take personal

autonomy seriously. Even Mill recognized a need for some

degree of paternalism, not just for children, backward

societies, and the mentally retarded, but also for

adults, at least when they are laboring under uninformed

or misinformed choice:

Mi 11

stranger

If either a public officer or any one else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there were no time to warn him of his danger, they might seize him and turn him back, without any real infringement of his liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river.92

believed that given the presumption that

does not want to fall into the water, it

the

is

reasonable to interfere with his attempt to cross the

bridge so that he can be warned. If, upon being warned,

the man :::, ti 11 wants to cross the bridge, Mi 11 would

permit him to do as he pleased. Patently self-damaging

behavior, under certain circumstances, creates for Mill a

120

presumption for interference, at least to the degree that

someone can be permitted temporarily to stop the

self-destructive people to determine the degree to which

their actions are calm, competent, and free. Extrapola-

ting from some passages in On Liberty, we might gather

that Mill approved of a mild form of paternalism for

adults. Perhaps he held that the State has a right to

prevent at least serious and imminent self-harm only when

that harm is substantially nonvoluntary, or when inter-

vention is necessary to measure the extent to which the

action is voluntary. (At any rate, that is my position.)

On the basis of a standard of voluntariness, one

might support legal attempts temporarily to prevent

people from, say, chopping off their hands or attempting

suicide to enable the State to determine whether the

people know exactly what they were doing. In short,

paternalistic intervention by the State in the lives of

adults is most clearly justified when the adults are

either obviously aiming at imminent and serious self-

harm or are confused, or reasonably thought to be con-

fused, about the extent to which their conduct is

dangerous to them.

Joel Feinberg distinguishes the following three

cases. 93 First, a doctor (Doe) tells a patient (Roe)

that the patient cannot receive drug X, even though the

121

patient wants it, because it will harm him. If Roe, who

presumably knows little about drugs, disagrees with Doe

about the danger, we can reasonably believe that Roe's

intended action, because it would be performed in

ignorance, would be substantially less than fully volun-

tary. Second, Doe tells Roe that the drug is harmful,

and Roe agrees but then maintains that he wants to take

the drug to harm himself. Because we know that most

decisions of intentional self-harm are not fully volun-

tary, the State, it can be argued, can rightly demand

that the patient convince a properly qualified panel that

he is not suffering from any derangement, illness, severe

depression, or other mentally disorienting conditions.

Let me qualify my previous remarks. We are talking

here about a drug that will very likely cause serious and

imminent harm. Since most "recreational" drugs do not

pose a high risk of serious and imminent harm, my argu-

ment for a highly qualified principle of paternalism

cannot be uncontroversially invoked to support the crimi-

nalization of most of those drugs. (One recreational

drug, PCP, may pose so high a degree of risk as to

warrant legal attention.) The third case Feinberg

considers is that in which Dr. Doe warns Roe against the

drug, again because of a high likelihood of harm. In

that case Roe calmly acknowledges the possibility of

122

harm, and says that he is willing to take the risk so

that he can experience a great deal of pleasure. We are

dealing here with an at least semi-enlightened hedonist

who desires to cultivate an intensely pleasurable life-

style, even if that lifestyle might decrease his life-

span. As a chemical risk-taker, our hedonist is

the ingester of potassium cyanide and the

smoker, though perhaps closer to the ingester

between

habitual

of cya-

nide. Our hedonist represents a test case requiring a

judgment call.

Whatever the law should be in that case, I think that

it should reflect the following insight: the more likely,

serious, and imminent the harm someone risks, the greater

presumption there is that his action is less than fully

voluntary. Note that the presumption is rebuttable, as

in the case of the Christian Scientist. Note further

that the insight enables us to distinguish between in-

gesters of cyanide and smokers of cigarettes. For in

that case we reflect that, while it is possible for

normal, (more-or-less) rational people voluntarily to

expose themselves to the imprudent risk of habitual

smoking, it is possible but unlikely that a person who

intentionally ingests a deadly substance is in his right

mind and knows exactly what he is doing.

My conclusions might be summarized as follows. Be-

123

cause I believe that the law may properly attempt to

prevent harm to its citizenry, I thought it appropriate

to discuss the limits of the prevention of harm that are

imposed by the values of liberty and autonomy. I have

held that the law may properly try to prevent intentional

and accidental harms to others and sometimes, but only

sometimes, try to prevent self-inflicted harms. The

clearest warrant for paternalism will be operative in

cases in which there are children, retardates, or adults

deeply confused about the nature and likely consequences

of their actions. The higher the risk of serious and

imminent harm, the greater presumption there is that the

agent is engaged in less than fully voluntary action.

Any reasonable principle of legal paternalism should be

sensitive to the varying degrees of seriousness of such

activities as cyanide-eating, Russian roulette-playing,

race-car driving, cigarette-smoking, and so on. A key

question the legal paternalist must always bear in mind

is, "Do the risk-takers know exactly what they are

doing?" He should want to discuss whether the risk-

takers have accurately calculated the risks involved and

the likely consequences of taking those risks. It is

possible that calm and sober people might, because of

their moral or religious principles, take risks most

other people would regard as imprudent. That descrip-

124

tion fits the case of the Christian Scientist who refuses

a blood transfusion, and also fits, but to a lesser

extent, the cases of race car drivers and mountain-

climbers. If adult Christian Scientists and race car

drivers are well aware of the risks they

good reason for the State to compel

prudently.

take, I see no

them to act more

I think that it is the burden of the State to justi-

fy all paternalistic laws and to explain how any given

law can consist with a respect for personal freedom and

autonomy. I believe that the State will sometimes be

able to meet the burden, but that it should always pro-

ceed with great caution. Finally, I believe that the

State may legitimately criminalize actions of three

kinds. First, the State may criminalize harms that are

either deliberately or negligently initiated against

others. Second, the State may properly criminalize

intentional failures to effect easy rescues that satisfy

the definition of MDS. Third, and finally, the State may

properly use the law in seeking to discourage some cases

of self-inficted harms. It is reasonable for the law

normally to intervene in cases in which people are

exposing themselves to serious and imminent harm. It is

reasonable for the law to require such people to answer

questions designed to determine the degree to which their

125

assumptions of risk are voluntary. Further, a case can

be made for requiring citizens to try to prevent self-

inflicted harms that are serious and imminent in cir-

cumstances in which those harms can be prevented without

unreasonable risk or effort. Let us now turn to Chapter

Three and arguments for extensive duties of rescue.

126

CHAPTER THREE

Like Chapter Two, this chapter is divided into

sections. The first section describes the general issues

covered in the chapter, and evaluates John Harris's argu-

ment for extensive duties of rescue. The second section

criticizes Peter Singer's argument for extensive duties

of rescue by criticizing both act- and rule-utilitaria-

nism.

I. In this chapter I shall evaluate the arguments of

John Harris and Peter Singer, both of whom believe that

we are morally required to perform extensive duties of

rescue, including duties to give a great deal of money to

the Third World. Although both Harris and Singer support

extensive duties of rescue, ach has his own method of

argument. While Singer relies on basically utilitarian

premises, Harris tries to develop an argument based on

conceptual analysis. Harris believes that a proper un-

derstanding of "failures to prevent harm" will or should

produce the conviction that people are causally respon-

sible for the harm they could have prevented. He holds

that the moral duty to prevent harm and violence applies

to failures to prevent harm as well as to straightforward

"positive actions," such as deliberate batteries.

now to Harris.

I turn

127

I have already argued t~at failures to prevent harm

can be harmful, so that I concur with Harris on that

general issue. What is contentious about Harris's posi-

tion, however, is not his regarding failure to prevent

harm as harmful, but his regarding all failures to pre-

vent preventable harm as harmful. I shall argue that his

analysis of "negative causation" is conceptually promis-

cuous, committing him to untenable moral and causal judg-

ments.

He develops his case partly by citing examples and

partly by arguing against alternative analyses of omis-

sions. The examples of which he is particularly fond

come from Marx and Engels. In the Conditions of the

Working Class in England Engels writes:

Murder has been committed if society places hundreds of workers in such a position that they inevitably come to premature and unnatural ends. Their death is as violent as if they had been stabbed or shot. Murder has been com-mitted if thousands of workers have been deprived of the necessities of life or if they have been forced by the strong arm of the law to go on living under such conditions until death inevitably re-leases them. Murder has been committed if society knows perfectly well that thousands of workers cannot avoid being sacrificed so long as these conditions are allowed to continue. Murder of this sort is just as culpable as the murder committed by an individua1.94

I shall eventually argue that the Engels' quotation

128

does very little if anything to support Harris, because

it does not illustrate what Harris wants it to illus-

trate. I shall now say only that Engels--unlike Harris--

appears to be blaming people not simply for failing to

help others, but for failing to help others whom they

have exploited. But of that criticism more later. The

question here is not whether it is morally right to fail

to prevent harm; rather, the question is whether failure

to prevent people's deaths is always to cause their

deaths and whether knowingly to let them die is to kill

them. These questions are important because, given

Harris's analysis of "not-preventings," each of us is

causing a great deal of harm, and causing a great deal of

harm is morally dubious.

Let us look at another example Harris gives.

from Marx's Capital.

Wherever there is a working day without restriction as to length, wherever there is night work and unrestricted waste of human life, there the slightest obstacle presented by the nature of the work to a change for the better is soon looked upon as an everlasting barrier erected by Nature. No poison kills vermin with more certainty than the Factory Act removes such everlasting barriers.95

It is

Marx is there criticizing the view taken by many nine-

teenth century capitalists that work-related deprivations

did not embody mistreatment, but were the inevitable pro-

129

duct of Nature. Soon I shall argue that the example just

mentioned is as unhappy as the Engels' example, and for

similar reasons. Let us first, though, look at Harris's

criticism of causal analyses alternative to his.

He holds that the crucial question is: In what cir-

cumstances is it appropriate to say that Y is a conse-

quence of not doing X? He examines Eric ,D'Arcy's analy-

sis, according to which Y is a consequence of A's failure

to do X only when:

( 1) Doing X is a standard way of preventing Y.

(2) A is in some way expected to do X.

(3) X is required of A in order that something such as Y should not happen.96

As Harris remarks, D'Arcy relies on both the descriptive

and prescriptive senses of "expect," so that A may be ex-

pected to do X if either "(a) 'X is something that A

usually does, or people usually do, in the situation in

question,' or (b) 'Xis required of him by some rule with

which he is expected to comply.' 'This may of course be

some moral rule, precept, or principle; but it will often

be a non-moral rule. 111 97 Harris believes that D'Arcy's

expectation-based model inverts the proper connection

between moral responsibility and causation.98

Harris discusses the example from Bentham in which a

person can save the life of a drunkard who is lying face

130

downwards in a puddle simply by tilting his head in a

life-saving direction. Harris contends that we have a

moral duty to help the drunkard because failure to help

him will cause his death.

It would not be the death of him because we have the duty; it would be the death of him because we fail to save him ... It is not the existence of the duty that makes the death of a drunk a consequence of any failure to save him, rather it is the fact that unless we save him he will die that makes it our duty to save him.99

I like Bentham's example, but think that it buttres-

ses Feinberg's, not Harris's, analysis of omissions.

Clearly, Harris insists that causal judgments concerning

the production of human harm are independent of moral

judgments in the sense that those causal judgments can be

made without invoking moral norms.

writes:

Accordingly,

We do not need to postulate a duty of beneficence to explain how the neglect of the passerby might well have resulted in the man's death, rather we need to under-stand the causal connection between the neglect and death to see why anyone might be required to tend to him.100

he

Similarly, Harris insists that often if not standardly

when (human) harm can be prevented

... it is not the fact that X is expected of a man that allows us to say that his not doing X makes him causally responsi-ble for Y, but rather, the fact that we see him to be causally responsible for Y shows us that X was expected of him.101

131

Apropos of his opposition to expectation-based causal

analyses, Harris rejects John Casey's analysis. Harris

represents Casey as holding that failures to act can

possess causal efficacy only when, in the normal course

of events, the "nonfeasor" could have been expected to do

what he failed to do.102 Casey holds that a person can

be appropriately praised or blamed for an outcome or

state of affairs if and only if:

(a) His actions (or omissions) are causally responsible for it.

(b) The outcome has some importance in terms of what he might be expected to do; in general, that is, in terms of a pattern of role re-sponsibilities, in the context of which he acts.

(c) Normal conditions [obtain] (i.e., no excusing conditions).103

Harris expresses Casey's position as follows:

if a failure to act is to be identified and given causal status, the normal con-ditions in the light of which it is a failure to act must be known. In knowing what a man is expected to do, we know the normal conditions; when a man fails to do what is expected of him, we can see that

the failure is an intrusion into the pat-tern of normal expectations, and we are then able to say that certain events are the results of his failure. Furthermore, Casey believes that what he calls 'a man's role' defines what sort of agent he is, and what are his role responsibili-ties and obligations, prior to any particular case.104

132

Harris agrees with Casey to this extent, that some-

times "role responsibilities" will fix causal responsi-

bilities, as when through neglect a gardener is causally

responsible for a garden's going to seed.105

But Harris thinks that sometimes a person's moral

responsibility will be determined by the consequences of

his failure to act. For "[s]ometimes we know what a

man's responsibilities and obligations are only because

we see that failure to act in a certain way will result

in the occurrence of the sort of thing we expect or

require people to prevent. 11 106 Accordingly, Harris holds

"that where Y involves harm to human beings, then Y will

be a consequence of A's not doing X simply where X would

have prevented Y and A could have done X. 11 107 He thinks

that when a person fails to prevent harm, his failure to

prevent harm can be causally efficacious, regardless of

the absence of contract, role responsibilities, or any

distinctively moral expectations. Before criticizing his

position, I want to look at his comments on Hart's and

Honore's view, as expressed in Causation in the Law.

133

(The following remarks will to some degree review and

develop some ideas discussesd in Chapter Two.)

The Hart-Honore analysis of omissions relies heavily

on the notion of expectation. For them, an omission has

causal status only if it constitutes a departure from

what normally happens.

What is taken as normal for the purpose of the distinction between cause and mere conditions is very often an artefact of human habit, custom and convention. This is so because men have discovered that nature is not only sometimes harmful if we intervene, but is also sometimes harm-ful unless we intervene, and have de-veloped customary techniques, procedures and routines to counteract such harm. These have become a second 'nature' and so a second 'norm'. The effect of drought is regularly neutralized by government precautions in preserving water or food; disease is neutralized by inoculation; rain by the use of umbrel-las. When such man-made normal condi-tions are established, deviation from them will be regarded as exceptional and so rank as the cause of harm.108

Accordingly, we can attribute the bad condition of a

garden to the neglect or inattention of some professional

gardener whose job it is to cultivate the garden. Al-

though Harris believes that the Hart-Honore analysis is

correct in explaining the causal status of many if not

most omissions, he raises an objection by asking whether

... when it had become clear vaccine was successful

that Jenner's in preventing

smallpox, it would have been necessary to wait until the practice of inoculation had become standard before it would be correct to cite the failure to vaccinate as a cause, perhaps the most significant cause, of an epidemic.109

134

In an attempt to explain why we might reasonably re-

gard the failure to vaccinate as a cause of an epidemic,

Harris makes the crucial move:

Where harm to human beings is concerned, however, our interest needs no special occasion. We are always interested in the causes of harm to ourselves and our fellow men.110

Against Harris I submit that, even if we accept his

causal assessment in the vaccine example, we need not

accept the general moral that we are instructed to draw,

namely, that the possibility of preventing harm is enough

to warrant the proposition that any failure to prevent

harm causes that harm. Let me explain.

Of the vaccine example we can say the following:

either (i) that the "not-preventings" of medical re-

searchers are at least sometimes causes because of the

researchers' role responsibilities, or relatedly, ( i i )

that such failures to use vaccines are causes because we

expect (morally) a certain class of specially trained

people to cure and sometimes prevent diseases. Or,

again, we might invoke both reasons.

135

My point is this. The Hart-Honore analysis seems a

fairly plausible account of how omissions can have causal

status. Their explanation is particularly plausible if

we bear in mind that expectations can be descriptive or

prescriptive: Sometimes we, on the basis of purely in-

ductive reasoning, expect people to perform certain

actions; at other times, we, on the basis of social,

legal, or moral norms, expect certain performances. (Of

course, some expressions of expectation can be both pre-

scriptive and descriptive, as when Englishmen were "ex-

pected" to serve their country during World War II.)

In attributing causal efficacy to omissions, the

clearer the norms, the more plausible the causal

attribution. Accordingly, failure to do act A will most

clearly be a case of causing (or contributing to the

production of) some state of affairs when there are clear

norms prescribing the performance of A. As a corollary

to the thesis advanced above, the more controversial the

norms on the basis of which people assign causal respon-

sibility, the more implausible will be the causal claim.

Let me elaborate by further examining a couple of exam-

ples that have already been discussed.

Since a professional gardener has fairly clear role

responsibilities, we can attribute a weedy garden to his

neglect. But when someone makes the claim (earlier men-

136

tioned) that there is starvation in India partly because

the United States government has neglected forcibly to

sterilize the Indian people, he is making an implausible

claim. It is implausible for reasons I have already

suggested: There are no uncontroversial norms, either

descriptive or prescriptive, on which the claim can be

based. Indeed, as I suggested earlier, if there are any

relevant norms, those norms condemn compulsory sterili-

zation.

We have already seen not only Harris but also Eric

Mack oppose the expectation-based analyses I have de-

scribed, at least when those analyses appeal to moral

expectations to ground causal claims. Harris believes

that moral expectations govern judgments of praise and

blame but not judgments of causal efficacy. Thus, Harris

writes:

If a doctor believes that he must never deliberately take life and so refuses to perform an abortion, even though the mother will die if the abortion is not performed, he does not see himself as causing the mother's death, rather he believes himself to have no choice. It i~ significant that such a man is often described as following the dictates of the divine law, or of his conscience, "whatever the consequences," and that discussions of the problems raised by such dilemmas are discussions of whether absolute moral principles which ignore consequences can be justified. The point is not that one has to be a consequen-tialist, but that the adoption of prin-ciples or values, or even ways of life or ways of organizing society, which makes

the prevention of certain sorts of harm by certain means 'out of question,' does not prevent the harm [from] being a consequence of the maintenance of those principles or that way of life.Ill

137

My response to Harris is that, while it is true the

doctor's failure to kill the fetus might be viewed as

causally related to the mother's death, that is at least

partly because the moral expectation that the doctor

should kill the fetus to save the mother is not wildly

implausible. Let us, though, look at the following

example. Suppose that the only way a doctor can prevent

the amputation of someone's legs is by killing two inno-

cent men and transplanting some of their organs into the

potential amputee. Since killing the two men would be

obviously immoral, it would be dubious for anyone to

claim that the doctor's failure to kill the two men

caused the amputation, or the

medically necessary.

situation making it

Harris tries to distinguish between judgments con-

cerning the causation of harm and moral judgments ascrib-

ing praise and blame. He holds that, while praise and

blame are often if not usually appropriate where harm to

human beings is intentionally and knowingly caused, we

may be unlikely to blame people if we think that the only

way in which they could have prevented some harm is for

some reason ineligible. Harris would say that, if most

138

people believed that the only way to prevent some harm

required other, greater harm, they would be reluctant,

and might even refuse, to blame the relevant person for

causing the harm by his failure to act. Further, Harris

would probably maintain that blame is appropriate not

simply when the harm is caused, but when it is caused in

the absence of excusing conditions. I see no problem

with the claim that, while harm-causing is presumptively

morally dubious, harm-causing is sometimes not blame-

worthy. Harris's problem is not that distinction but his

analysis of "negative causation," which I shall soon for-

mally give.

Eric Mack, as we saw earlier, opposes the proposition

that some "not-preventings" can, without a background of

positive actions, have causal status. More precisely,

his view is that, whenever someone will advance a

plausible-appearing case of "negative causation," the

case will be assimilable to a case in which someone

neglects to discharge a positive duty that was generated

by the nonfeasor's special relation to the causal back-

ground of the perilous state of affairs. Among the

"special relations" Mack would acknowledge are those

positive duties imposed (i) by contract and other

agreements, (ii) by endangerment through coercion, (iii)

by straightforward harm (as in a hunting accident), and

(iv) by parental

simply is the form

obligations.

which the

139

"A current 'duty to cure'

duty not to harm takes

within a context such that harm will ensue from A's past

act unless A intervenes now. When a duty is violated, it

is the prior endangering act which causes the harm. 11 112

I have already criticized Mack for thinking that his

analysis of culpable omissions is non-normative. I have

rejected Mack's principal objection to any theory of

negative causation: " ... that the causation theorist

cannot avoid commitment to the very general claim about

negative causation that any absence of an action (or

event) is a cause of outcome Y if that action (or event)

would have prevented Y. 11 113 I have held that the only

"not-preventings" that should be regarded as having

causal status are those that are properly considered

omissions, and I see nothing arbitrary about that

qualification.

Let us now set out formally Harris's view of negative

causation. He wants to say that A's failure to do X

caused Y where (i) A could have done X; (ii) X could have

prevented Y; and (iii) either (a) Xis expected of A, or

(b) Y involves harm to human beings.114 Note that

Harris's analysis of negative causation resembles the

Hart-Honore analysis of causally efficacious omissions,

except for the second clause (~, clause (b)) of

Harris's third condition.

140

Harris is largely agreeing

with the Hart-Honore analysis, except for one difference:

He is building into his analysis a particular moral norm:

He is assuming, without argument, that we have a prima

facie moral duty to prevent harm, wherever possible. But

note that Harris believes that his analysis is morally

neutral.

Unfortunately for Harris, when he defines "negative

causation," he is presupposing a very controversial moral

norm. In effect, Harris is saying something like the

following. "We ought to think twice before failing to

prevent harm that we can prevent. The reason is that, if

we are morally concerned, we ought to avoid harming

others; and failing to prevent people from being harmed

is to harm them." But we must ask Harris: Why does he

say that failing to prevent (preventable) harm is to

cause the harm.

to human beings

He will answer as follows. "Where

is concerned ... our interest needs

harm

no

special

of harm

occasion. We are always interested in the causes

to ourselves and our fellow men. 11 115 The

interest about which Harris speaks appears to be a moral

interest, based on moral expectations, indeed controver-

sial moral expectations. It is precisely because

Harris's moral expectations are controversial that his

analysis of negative causation is controversial and even

141

implausible. For if people are doubtful whether we have

a moral duty to prevent harm (wherever possible), Harris

has provided them with no reason to accept the proposi-

tion that failure to prevent (preventable) harm is to

cause it.

Harris does, however, seem partially right. When

talking about the causes of preventable harm, we do want

to discover which agents were capable of preventing the

harm and which agents knew about the harm. But I believe

that he is wrong to think that any action that could have

prevented harm is a likely candidate for causal status.

For in describing omissions as causes of human harm, we

are usually if not characteristically using to some

extent the moral point of view, implicit in which are

certain expectations of proper and improper ways of pre-

venting harm. Let me explain.

Suppose the people of Afghanistan argued as follows.

The American people are to some degree causally responsi-

ble for the Soviet invasion of Afghanistan because the

United States government failed to drop nuclear bombs on

the Soviet Union. The people of Afghanistan could ex-

press that sentiment, but the question is whether that

claim should be taken seriously. Even if we accepted

Harris's remarkably diffuse causal attributions, we would

have to do so at a price. For on his view of negative

142

causation, by which we might arrive at the previous

causal attribution, the current prima facie connection

between causal respon~ibility for harm and moral respon-

sibility would be highly attenuated.

further.

Let me explain

Once we adopted Harris's view of negative causation,

we would greatly increase by theoretical fiat the number

of harmful nonpreventions, but would simultaneously

attenuate any presumptive connection formerly holding

between the doing of harm (which is now re-defined to

Harris's

suspect.

liking) and the doing of what is morally

Note that while we ordinarily distinguish

between causal responsibility and moral culpability, the

two are characteristically interrelated in complex ways.

Usually, if not typically, when people are culpable for

some harmful state of affairs, they played some causal

role in producing that state of affairs, and they played

that role in the absence of excusing conditions (such as

certain kinds of mistake, or insanity). But if, as in

Harris's analysis, anything that could have been done to

prevent some harm is a likely candidate for causal

status, then the idea of failing to prevent harm (in this

re-defined sense of "harm") appears to have little moral

significance. Ordinarily, the notion of consequences of

actions is used in a context in which we can talk about

143

such things as the culpable negligence of people in

certain roles or statuses, the neglect of contractual

obligations, the active

and so on. Accordingly, we

the accusation that our

thwarting of others' interests,

might well become upset by

actions have harmful conse-

quences. But if the phrase "consequences of one's

actions" is used so broadly as to include all non-pre-

ventions of preventable harm, then the accusation that

nearly all large-scale miseries of the world are at least

partially the consequences of our actions need not always

upset us.

Harris sets up a false dilemma by holding that we

must either deny that people are ever responsible for

states of affairs they could have prevented, or accept a

radical revision of our ordinary views about agency and

moral responsibility.116 For his dilemma turns on a

highly controversial moral norm, namely, the judgment

that people should prevent harm, wherever possible.

Without the moral norm he cannot hold that we are harm-

ing everyone whom we can help, but do not. Further, if

Harris did live up to his claim to define the causal

efficacy of not-preventings without any reference to

moral expectation, it would be difficult if not impossi-

ble to avoid Mack's criticism, namely, "that the causa-

tion theorist cannot avoid commitment to the very general

144

claim about negative causation that any absence of an

action (or event) is a cause of outcome Y if that action

(or event) would have prevented Y. 11 117 As I said

earlier, if the theorists of negative causation are to

avoid holding that all necessary conditions for a state

of affairs are necessary ingredients in satisfactory

causal explanations, they will have to be able to find a

principled way of limiting negative causal attributions.

I have suggested that fixing our attention on the class

of omissions is a reasonable way to begin to define the

class of effective non-preventions. It appears, however,

that Harris cannot similarly restrict his causal attri-

butions because of his reliance on a more or less cate-

gorical duty to prevent harm.

Such support as Harris gives

theory of negative causation comes

for his particular

principally in the

form of

warrant

selection

examples, which, even

his general thesis.

if accepted, would not

Consider his highly prized

which Engels claims that from Engels, in

"murder has been committed if thousands of workers have

been deprived of the necessities of life or if they have

been forced into a situation in which it is impossible

for them to survive. 11 118 If the workers have been "de-

prived" of necessities and "forced" into a harmful if not

fatal environment, or otherwise dangerously exploited,

145

the exploiters have been actively creating a perilous

situation, rather than simply failing to rescue people

from perils that the potential rescuers in no way

initiated. As I suggested earlier, the examples Harris

cites constitute a dubious basis for his view of negative

causation.

If people accepted Harris's view of negative causa-

tion, they might be committed to some dubious moral judg-

ments, in which they might be required by consistency to

endorse unreasonable limitations of freedom. Let us look

at the following example. Suppose agent A knows that his

next-door neighbor, agent B, plans to go to a party to-

night, at which he will almost certainly become exceed-

ingly drunk. Suppose further that A knows that if B be-

comes drunk, B will very likely be involved in a car

accident. Suppose still further that A knows that if B

is unable to go in his own car, B will not go. (B is

eccentric, and never goes to parties unless he drives his

own car.) Suppose finally that A reasonably believes

that if B drives his car to the party, he will almost

certainly become involved in a car accident on the way

home. If A is to prevent a serious accident, he will

probably have to prevent B from going to the party.

Now A, who has just finished reading John Harris,

reasons as follows:

If I do not somehow prevent B from using his car tonight, and B should become seriously injured, or should die in an accident, I shall have negatively caused B's injury or death. Since I have a moral duty, indeed a serious duty, to avoid gravely injuring or killing anyone, I must act quickly and intelligently. Aha! I have a metal boot, by which I can immobilize one of B's rear tires. When B is not looking, I shall sneak up to his car and fasten the metal boot, since it is, after all, better to immobilize some-one's car than to injure or kill him.

146

Harris might object to the example, complaining that

A, from his original epistemological position, can pre-

vent only a serious risk of harm and not any harm that is

certain. While the objection is interesting, it can be

circumvented. We might enhance A's epistemological posi-

tion by making him a remarkably reliable psychic who

rarely if ever goes wrong in his predictions of gloom.

But even if someone rejects the psychic flourish as in-

credible, I would argue that even the prevention of a

serious risk might, on Harris's reasoning, require A's

use of the tire boot. For presumably A will have a moral

duty to act in such a way as to avoid seriously jeopar-

dizing B's life. It might be argued that, given Harris's

picture of negative causation, A's failure to help B

would seriously jeopardize B's life.

I am not sure whether Harris could avoid condoning,

or indeed morally requiring, an unreasonable infringe-

147

ment of B's freedom, particularly if Harris believes that

all non-preventions of serious harm are morally serious.

In the car example, Harris's position appears to ignore

the role of B, who is an autonomous if somewhat stupid

moral agent, who has plans, projects, and goals to which

he bears a special relation and for which he is princi-

pally responsible. The verdict to which Harris is most

likely committed appears to be both morally and causally

dubious. For even if B did become involved in an acci-

dent and was harmed, it is difficult to see how an ade-

quate causal explanation of the accident would have to

contain a reference to A's failure to immobilize B's

car. A's non-prevention is inessential to an adequate

causal understanding of B's injuries because there is no

clear expectation, prescriptive or descriptive, that A

should (in the present context) prevent B's injuries. I

conclude my discussion of Harris by maintaining that he

has failed to prove his case, which turns on a contro-

versial moral standard that is presented as part of a

conceptual analysis.

We shall turn first to a very brief summary of our

progress, then to a discussion of Peter Singer, and

finally to a critique of utilitarianism. We shall see

that Singer, like Harris, believes in extensive duties of

rescue, but that he, unlike Harris, intends to rest his

148

case on moral claims, not conceptual ones. Now to the

summary.

I evaluated the most common arguments against good

Samaritan laws and found them unconvincing. Because I

have raised some serious problems with the most common

objections to minimal duties of rescue, and because I

think that minimal duties of rescue are defensible by

appeal to the harm principle or a qualified version of

that principle, I think that at least minimal legal

duties of rescue are acceptable. I have decided to

evaluate extensive duties of rescue because my argu-

ments in the second chapter were principally designed to

rebut popular objections to minimal duties of rescue, and

not to preclude categorically more extensive general

duties of rescue. Alth)ugh I have found Harris's case

for extensive duties unconvincing, I have yet to evalu-

ate Peter Singer's views and the utilitarian case for

extensive duties, to which I shall now turn.

II. Peter Singer's position on rescue can be found in his

Practical Ethics and "Famine, Affluence, and Morality" in

Philosophy and Public Affairs [l, No.3 (Spring 1972),

229-243]. In the article cited, he holds that his view

is based on the fallowing principle or judgment: " [ i ]f it

is in our power to prevent something bad from happening,

149

without thereby sacrificing anything of comparable moral

importance, we ought, morally, to do it. 11 119 He explains

the principle as follows:

By "without sacrificing anything of com-parable moral importance" I mean without causing anything else comparably bad to happen, or doing something that is wrong in itself, or failing to promote some moral good comparable in significance to the bad thing that we can prevent.120

Singer later maintains that, while he supports the judg-

ment calling for the prevention of bad states of affairs,

he would, for the sake of compromise, so modify the judg-

ment that it would call for preventing only "very bad"

state of affairs.

He maintains that even if most of us Westerners

conscientiously tried to act in accordance with the

modified judgment, we would have to alter our life-

styles enormously. As I suggested, however, Singer, at

least in the article mentioned, supports the unmodified

position, calling for preventing bad state of affairs.

In the article, he maintains that the unmodified,

"strong" position would probably require people to give

to the point of marginal utility, the level at which a

person's giving more would cause as much suffering to

him or others as he would be relieving by his help. In

his book Practical Ethics, Singer expresses less

150

stringent expectations; there he argues that most Western

nations should be giving at least 10 percent of their GNP

to nations of the Third World. That percentage is indeed

moderate compared to his expectations in "Famine, Afflu-

ence, and Morality," where he expresses no principled op-

position to the figure of forty-percent, though he ac-

knowledges the possibility that such a percentage might

so slow down our economy that in absolute terms we would

be giving less by giving that percentage than we would if

we gave twenty-five percent of the larger GNP that we

might have if we gave the smaller percentage.

If we place Singer's argument in context, it can be

seen to depend on utilitarianism of some form. For it is

difficult to see how someone could support our giving

money to the point of marginal utility without relying on

utilitarianism. My point is that, if that view about

extensive aid is acceptable at all, it will be acceptable

probably only from a utilitarian point of view. Even if

we allow that Singer might well have exaggerated when he

said that his principle of altruism could require each

Westerner to reduce his standard of living to that

endured by a Bengali

believes that our

refugee, it is clear that Singer

duties of rescue should be determined

principally if not exclusively by utilitarian considera-

tions.121 And since most of the popular forms of utili-

151

tarianism with which I am familiar will most likely re-

quire Westerners to suffer substantial decreases in

wealth and freedom (if those decreases are needed to

promote the general welfare of the world), a criticism of

Singer should involve a criticism of utilitarianism.

Since Jeremy Bentham's day utilitarianism has become

increasingly refined and complex. Indeed, it has become

so complex that I can, within the scope of this discus-

sion, only gesture towards some problems with it. All

forms of utilitarianism are agreed on at least one pro-

position, namely, that the rightness or wrongness of acts

is determined ultimately by the production of what is

inherently good, usually identified as "happiness" or

"satisfaction." If the consequences evaluated are those

of particular acts, we get an act-utilitarianism of some

form; if the consequences are those of "sorts of

actions", we get rule-utilitarianism of some form. There

have been some highly sophisticated attempts at showing

that, for at least some contexts, act- and rule-utili-

tarianism are extensionally equivalent, so that they will

endorse and prohibit the same acts. Although I shall not

evaluate some arguments for that equivalence, I discuss,

at the beginning of my criticism of rule-utilitarianism,

the significance of those arguments for equivalence to a

criticism of utilitarianism. The order of my discussion

152

proceeds as follows. I shall first discuss and evaluate

one fairly simple version of act-utilitarianism, and then

look at a more complex form of utilitarianism, which has

been called "ideal rule-utilitarianism," and which has

been defended by R.B. Brandt. Finally, I shall evaluate

Peter Singer's case against the background of my discus-

sion of utilitarianism.

The species of act-utilitarianism on which an argu-

ment for extensive duties of rescue could probably be

most easily based is universalistic, hedonistic utili-

tarianism, according to which an act is right if and only

if it produces the greatest balance of pleasure over dis-

pleasure. I take it that Jeremy Bentham held that posi-

tion. Many contemporary philosophers reject the view

that the only inherent goods are pleasant mental states,

but insist that we should strive to maximize "interest-

satisfaction."

Many if not most forms of utilitarianism have been

criticized for both endorsing highly dubious moral judg-

ments and misinterpreting the nature of moral thinking.

Many philosophers have argued (i) that utilitarianism can

arrive at dubious conclusions, and (ii) that even when it

rightly endorses actions, it can do so for the wrong

reasons. To see whether those criticisms are apt, I want

to look first at hedonistic act-utilitarianism and then

153

at more sophisticated versions of utilitarianism.

Let us suppose, for the sake of argument, that the

capacity of an action to produce pleasant consequences

can usually be accurately measured. According to the

view under discussion, we are to choose that action which

has the maximum net utility. (I am assuming that most if

not all utilitarians will want, when doing their cal-

culations, to factor in the probability of alternative

sets of consequences.) Standardly, arguments against

act-utilitarianism, particularly

tarianism, will run as follows.

hedonistic act-utili-

The position will re-

quire us to perform actions that most people will regard

as morally wrong.

R.B. Brandt.122

Consider the following example from

Suppose that Mr. A is thinking about

whether he is morally required to hasten his father's

death. A's father is wealthy, but A's own family is

poor. Since his father never gives A money, A has

trouble providing for his family, whose members are

missing many joys too expensive for them. Further, the

father is ill, and can be kept alive only by the expen-

sive care provided by nurses. The cost of the care is

rapidly diminishing the father's resources. Although the

father does not want to die, he is not getting much joy

from life. Because of his medicine, he finds life

tolerable but not particularly enjoyable. His condition

154

will probably gradually become worse, though his death

will probably not occur for several years.

On act-utilitarianism, at least the hedonistic form,

it might well be not only permissible but even obligatory

for the son to hasten surreptitiously his father's death,

though most people would regard so treating the father as

unjust. On act-utilitarianism, the question whether A's

father has a right not to be interfered with against his

will does not arise. Accordingly, the father might have

better chances of surviving if his son were a rule-utili-

tarian of some form. I shall soon discuss one sophisti-

cated form of rule-utilitarianism, but want first to

describe how act-utilitarian theories are required to

view people and their actions.

On a straightforward hedonistic act-utilitarianism

killing people will be wrong if and only if killing them

will produce more pain than pleasure. What makes any

particular killing wrong is not intimately connected with

claims about violating the rights of an autonomous

valuer, but is simply the set of unpleasant consequences

someone's death might happen to produce. By viewing

people simply as producers and

act-utilitarianism hedonistic

them as

experiencers of pleasure,

is committed to viewing

products, with market

If all that matters to values,

fungible, replaceable

rather like used cars.

hedonistic act-utilitarians is the total amount

155

of

world, they must, as philosopher R.G.

the following conclusion: "[i]f the

pleasure in the

Frey holds, accept

person killed were replaced by another, whose life was

roughly commensurate in terms of pleasure, the loss in

total pleasure would be made good; and if the loss were

made good, then, of course, killing that person would not

be wrong. 11 123 What the hedonistic act-utilitarian

accepts, and what Kant rejected, is

people have market-values, that

the proposition that

their worth admits of

degrees, and is subject to varying circumstance. For the

value of persons, according to act-utilitarianism, is

derivative from the value of pleasure, so that, in prin-

ciple, the destruction of one person can be justified by

his replacement. One does not have to believe in the

complete inviolability of persons to object to the way in

which hedonistic act-utilitarianism is required to weigh

the pleasure of a killer and others against the un-

pleasant consequences of the victim's death. There are

here the possibilities of scapegoating and the "utility

monster," about which I shall soon have more to say.

It is no wonder that act-utilitarianism generally has

problems with justice. For if the act-utilitarian is

concerned only with maximizing the total general utility,

he may be required to endorse acts that distribute bene-

156

fits and deprivations (such as punishments) unequally and

indeed unjustly. Act-utilitarians might reply that

unjust distributions, particularly if patent and well

known, are usually highly disutile, since they will tend

to promote feelings of insecurity. And so Mill argued in

the fifth chapter of Utilitarianism. While a Millian

response goes far, it is doubtful whether it goes far

enough, particularly if it is used to try to defend act-

utilitarianism. For all we as critics of act-utilitar-

ianism have to do is to build into our examples the sup-

position that the injustice is not well known, and is

perhaps undetectable by people not directly involved.

Even waiving what I have just argued, the opponent of

act-utilitarianism could argue that in a situation in

which the utilitarian must choose

utile actions, only one of which is

favor the just one. Relatedly,

between two equally

just, he need not

if the act-utilitarian

must choose between act A and act B, and A is unjust but

slightly more utile than B, the act-utilitarian must

choose A.

A number of philosophers have

tarianism will itself be

set up as follows.

disutile.

Given that

held that act-utili-

The problem can be

act-utilitarianism can

warrant some person's breach of a generally useful social

practice whenever the net expectable utility of his de-

157

viation exceeds that of his conformity, universal ad-

herence to act-utilitarianism could produce great harm,

indeed more harm than would be produced by many societies

that are not generally act-utilitarian.

Let me give an illustration

then give a similar but more

example comes again from R.B.

of that criticism, and

telling criticism. This

Brandt~l24 Consider

wartime England, in which people during the Second World

War were asked to conserve electricity and gas by keeping

their homes at never more than 50 degrees F. Suppose

that each English citizen believed that his or her sur-

reptitious violation of that edict would make little dif-

ference to the war effort, because most other English

citizens, it might be thought, would obey the edict. If

most English citizens had reasoned similarly, England

might have lost the war.

Act-utilitarians might object, saying that the person

in the example is ignoring the risk that others may

reason likewise. Even if the odds are against many or

most people reasoning likewise, they might reason like-

wise, in which case each cheating person will be

partially responsible for any disastrous consequences.

If the utilitarian considers the risk and the possible

disutility involved in his ignoring the edict, he will

not ignore the edict.

158

Some critic of act-utilitarianism might offer the

following counter-reply. If millions of others decided

to violate the edict, England would suffer consequences,

regardless of what any one English citizen did. Further,

the principle of act-utilitarianism is not, "Do that

action which if performed by everyone in your situation

would maximize utility," but, "Do that action whose per-

formance by you will maximize utility, or net expectable

utility." We are assuming that it is rational for any

given English citizen to believe that most other English

citizens will not violate the edict. The idea behind

Brandt's example is that there

situations in which everyone's

utilitarian will be disutile.

are easily

acting like

imaginable

an act-

Even if Brandt's example can be answered by the

utilitarian, the

appears sound.

act-utilitarians.

general idea motivating the

Let us examine a society of

In that society every time

example

perfect

people

answered a question, even under oath, they would compare

the relative utilities of lying and telling the truth.

When it came time to discharge contractual obligations or

to keep promises, people would reason similarly. When

one's children or parents needed help, one would compare

the utility of helping them to the utility of otherwise

expending resources. As a result of reflecting on

159

various thought-experiments, it has been argued, plausi-

bly I think, that people in a predominantly act-utili-

tarian society would not be able to trust and depend on

one another. Institutions such as contract-making and

promise-making would most likely be undermined. The

act-utilitarian appears to be in the curious position of

advocating a normative theory which, if universally or

even widely adopted, would most likely be self-defeating.

Worse is yet to come. For many philosophers would go

so far as to hold that in a society of widespread act-

utilitarianism, such practices and institutions as pro-

mise-keeping and truth-telling could not even take root.

Hume is instructive here. For he maintained in his

Treatise that, while a thoroughgoing benevolence might

sometimes lead someone to breach conventional norms

governing the keeping of promises and the respecting of

property, the conscientious observance of such norms

would have better consequences on the whole than a con-

sistent practice of following the promptings of benevo-

lence. Accordingly, Hume writes:

Property must be stable and must be fixed by general rules. Though in one instance the public be a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule and by the peace and order which it establishes in society.125

160

John Rawls has m&de a similar point in holding that

the rationale of the practice of promising is to "abdi-

cate one's title to act in accordance with utilitarian

and prudential considerations in order that the future

may be tied down and plans coordinated in advance. 11 126 I

take Rawls to be saying that, although the institution of

promising might be justifiable on utilitarian grounds, an

act-utilitarian approach to every promise would undermine

the institution, perhaps even its possibility, because

the utility of promise-making lies largely in its creat-

ing a context in which people can trust others to refrain

from acting in accordance with utilitarian as well as

prudential considerations. A concern for honesty, fair-

ness, and justice that views them as inherently valuable

might well motivate people to perform desirable actions

that they would not otherwise perform if they were moti-

vated only by compassion, or benevolence, or even a de-

sire to maximize utility.

Because of the foregoing analysis, there is reason to

think that the conduct of a person who is conscientiously

fair, honest, and trustworthy, and who regards such

conduct as inherently valuable, likely be

different from, and at times morally

will very

preferable to, the

conduct of an act-utilitarian, even when judged on the ------"----=-----basis of utility. There appears then to be enormous

161

utility in our being able to trust people to follow cer-

tain practices not justifiable by act-utilitarianism.

If, as seems likely, most people engage in practices and

form attitudes at odds with the requirements and implica-

tions of act-utilitarianism, act-utilitarians might well

have trouble dealing honestly with others when the utili-

tarians are counted on to tell the truth or to keep their

promises.

I want to complete my discussion of act-utilitaria-

nism by discussing the danger of scapegoating. As I have

already suggested, it is fairly easy to imagine circum-

stances in which act-utilitarians will be required to

endorse scapegoating even when the gains in utility over

alternatives are only slight. Doubtless the act-utili-

tarian will maintain, with some plausibility, that scape-

goating will usually be morally dubious, even on utili-

tarian grounds, because it requires a violation of a

number of highly useful "rules," such as a rule against

injuring others without legal justification, a rule

requiring legal conformity, a rule requiring like cases

to be treated alike, a rule requiring honesty, and so

on. However we wish to classify the status of those

rules, esteeming those rules makes utilitarian sense.

While esteeming those rules might make utilitarian

sense, it is not clear that the utility of those rules is

162

so great as to prevent the utilitarian from being

required by his theory to perform a patently unjust

action. Let me explain by describing a popular example.

A sheriff can prevent a riot in which hundreds of people

will probably be killed only if he "frames" an innocent

but unpopular man, whom the sheriff can accuse of rape

and murder. The example appears realistic and plausible

if we picture the potential scapegoat as a black living

in a bigoted southern town where a black is known to have

raped and murdered a white woman. Act-utilitarian J.J.C.

Smart is on record as expressing his reluctant approval

of framing the innocent man.127

Anti-utilitarians might hold that they need not

postulate that the sheriff can save hundreds of lives;

all that they need to do to cast doubt on act-utilitari-

anism is to postulate that the killing of the innocent

man is marginally more utile than the decision not to

kill. Matters are tricky here because the act-utilitar-

ian will want to evaluate all roughly foreseeable con-

sequences, which would include the possibility that the

sheriff's act of injustice might be discovered. The

point is that, if people discovered that the sheriff

deliberately killed an innocent man, many people would

lose some confidence in the legal system.

While the argument has some merit, it rests the

163

wrongness of scapegoating on highly variable circum-

stance, and it grounds the wrongness of scapegoating not

in the inherent worth of people and their right not to be

injured for others' benefit, but in the variable capacity

of scapegoating to lead to disutile states of affairs.

Further, while there are usually no guarantees against

someone's discovering a particular instance of scapegoat-

ing, people might argue that in the sheriff case the

discovery of scapegoating might not be as disutile as

many tend to think. The reason is that most of the white

majority in the racist town will have little if any

reason to believe that they could be similarly sacri-

ficed. Although I have no concrete data, I doubt that,

when the lynching of blacks was popular in the South,

racist whites were worried about their own legal securi-

ty. Because of the problems I have discussed, many

people have rejected act-utilitarianism in favor of

rule-utilitarianism.

Since act-utilitarianism is seriously flawed,

Singer's position, if it is to be defended by utili-

tarianism, must be defended by a rule-utilitarianism of

some kind. Because I do not have time to discuss every

rule-utilitarian theory ever proposed, I should explain

why I plan to focus on R. B. Brandt's theory. His theory

was created largely to avoid many of the problems asso-

164

ciated with act-utilitarianism, to which it is probably

not reducible. That point about reducibility is impor-

tant because, if David Lyons is right, many versions of

rule-utilitarianism will be extensionally equivalent to

act-utilitarianism. In short, they will license and

prohibit the same actions. I obviously do not have time

to review all or even most of Lyons's arguments in Forms

and Limits of Utilitarianism, but I can sketch some of

his ideas that are important to my comments on utili-

tarianism.

Basically, Lyons considers all versions of rule-

utilitarianism to be one of two types, either "primitive"

or "non-primitive." The primitive type will result from

utilitarian generalization applied in a certain way, and

the non-primitive type will typically result in what has

been called "ideal rule-utilitarianism," one version of

which Brandt defends. While primitive rule-utilitarian-

ism will ground the rightness or wrongness of acts in

their generalized utilities, non-primitive versions will

ground the rightness or wrongness of acts in some utili-

tarian characteristic of the set of rules under which the

acts fall. The rules of primitive rule-utilitarianism

will then be determined not by the simple utilities of

discrete acts but by the effects of a number of acts that

might be performed. A system that contained entire sets

165

of these rules justified by a form of utilitarian genera-

lization would be a version of primitive rule-utili-

tarianism. (To see exa~tly why Lyons argues that primi-

tive rule-utilitarianism is extensionally equivalent to

act-utilitarianism, the reader can examine the third and

fourth chapters of Lyons's book.)

Like Lyons, I believe that versions of rule-utili-

tarianism either will be reducible to versions of act-

utilitarianism, or

ideal utilitarianism.

will more or less resemble Brandt's

While I admit that it is possible

to develop a rule-utilitarian theory that diverges some-

what from that of Brandt, I believe that such a theory

will still be vulnerable to a number of my criticisms,

which will apply to any consequentialism. My point can

be illustrated by the idea of justice. Although Brandt,

as we shall soon see, rejects as possibly countenancing

injustice Stephen Toulmin's view, which treats the actual

and recognized moral conventions of a society as more or

less indisputable norms for determining correct conduct,

Brandt's "ideal" rules can be shown also to have trouble

dealing with justice.

I am examining Brandt's version of rule-utilitarian-

ism both because it is one of the most sophisticated

versions ever advanced and because it can be seen as

representing many similar theories. Further, I have no

166

interest in discussing primitive rule-utilitarianisms

because they appear to be vulnerable to my criticism of

act-utilitarianism. Finally, any non-primitive rule-

utilitarianism that diverges from that of Brandt will

most likely be susceptible to some of my anti-consequen-

tialist remarks, particularly those about justice. Let

us first look at Brandt's essay called "Some Merits of

One Form of Rule-Utilitarianism" and then at some of his

most recent thoughts as presented in his book, A Theory

of the Good and the Right (Oxford: Clarendon Press,

1979).

Alert to the counterintuitive implications of act-

utilitarianism, Brandt, as already suggested, defends a

version of rule-utilitarianism. He divides theories of

rule-utilitarianism into two groups, depending on whether

they make the rightness of an act a function of rules

that are ideal in some sense or whether they make the

rightness of an act depend on the actual and recognized

moral norms of a society. We can call theories of the

first kind theories of ideal rule-utilitarianism and

theories of the second kind theories of actual rule-

utilitarianism.

As will soon be seen, Brandt, with some qualifi-

cations, accepts a form of ideal rule-utilitarianism that

he believes resembles the views of Mill in Utilitarianism

and J. D. Mabbot in his 1953 British academy lecture

167

called "Moral Rules." He holds that various forms of

actual rule-utilitarianism have been defended at one time

or other by such philosophers as Stephen Toulmin, John

Rawls, and P. F. Strawson. According to Brandt's under-

standing, many versions of actual rule-utilitarianism

imply that the predominant morality within a society

determines a person's moral obligations in a particular

case, and that the utility of the code or practice de-

termines whether the code or practice is justified or

should be changed. Brandt holds that actual rule-uti-

litarianism, as it is often called, is unacceptable,

because it tends to treat as beyond question conventional

moralities. For example, if the majority of a society

condemn and prohibit working on the Sabbath or marrying a

divorced person, members of that society will be morally

obligated to act in accordance with those prohibitions.

Similarly, some forms of actual rule-utilitarianism will

hold that an act or practice cannot be wrong unless it is

socially prohibited. That implication leads to unaccept-

able consequences, such as a presumption in favor of

institutionalized slavery and racial segregation.

Brandt is not, however, altogether displeased with

actual rule-utilitarianism. Indeed, he believes that

some parts of the theory are correct:

In particular, the theory in some form implies that, if a person has a certain recognized obligation in an institution or practice (e.g., a child to support his aged parent, a citizen to pay his taxes), then he morally does have this obliga-tion, with some exceptions, irrespective of whether in an ideal institution he would or would not have,128

168

He wants to defend a theory that attaches moral impor-

tance to social institutions, but that treats conven-

tional norms as ultimately answerable to ideal rules,

that is, rules whose general acceptance within a society

would produce the most good per person. He writes:

... Let us first say that a moral code is "ideal" if its currency in a particular society would produce at least as much good per person (the total divided by the number of persons) as the currency of any other moral code .... Given this stipula-tion for the meaning of "ideal," the Ideal Moral Code theory consists in the assertion of the following thesis: An act is right if and only if it would not be prohibited by the moral code ideal for the societ ; and an a ent is morall

lameworthh praisewort y for an act if, and to t e degree that, the moral code ideal in that society would condemn (praise) him for it.12g

In spelling out his theory, Brandt (i) explains what

it is for a moral code to have currency, (ii) distin-

guishes between the rules of a society's moral code and

the rules of its institutions, and (iii) describes how

the relative utility of a moral code can be estimated. A

169

moral opinion has currency in a society, according to

Brandt, if at least ninety-percent of the adults in that

society subscribe to that opinion and "a large percent-

age" of adults correctly recognize that the opinion is

overwhelmingly predominant.

The rules of a society's moral code can usually be

distinguished from the rules of its institutions, though

sometimes the distinction is unclear and blurred, as in

the command to honor one's parents. An institution can

be regarded as a set of positions or statuses defined by

privileges and role responsibilities. Persons occupying

different positions cooperate within a system that is

thought to have overarching aims. Brandt gives the

example of a university, which is supposed to further

research and education, and which contains people occu-

pying various positions: deans, professors, students, and

so on. Each person occupying a position has certain

duties and privileges.

If an institution is defined as Brandt defines it,

then it cannot, he maintains, be identical with the moral

rules of a society. For if the predominant moral code of

a society were an institution, then nearly all moral

reasoners within that society would belong to the same

institution. Writes Brandt:

But what is the "purpose" of society as a whole? Are there any distinctions of status, with rigtts and duties attached, which we would identify as the "posi-tions" in the moral system? Can we say that moral rules consist in the assign-ment of jobs in such a way that the aims of the institution may be achieved? ... Society as a whole is obviously not an organization like a university, an educa-tional system, the church, General Motors, etc.; there is no specific goal in the achievement of which each position has a designated role to play.130

1 70

Brandt, it should be added, acknowledges that the

predominant moral code of a society can have implications

that bear on its institutional rules. An institution in

a society might come to be judged immoral in the light of

changing moral norms. And a person can be morally bound

to perform certain institutional duties because of his

promise to perform those duties. Professors and poli-

ticians, for example, have assumed institutional duties

as a result of their choices.

After distinguishing between the rules of a society's

moral code and the rules of its institutions, Brandt

describes how the relative utility of moral codes can be

estimated. He holds, first of all, that the difficulty

of making judgments of comparative utility is not unique

to his theory, but attaches to any plausible theory.

Second, he holds that the ideal moral code of a society

must be simple enough to be learned by ordinary people,

171

with ordinary emotional and intellectual limitations, who

must be able to put

practice within their

mating how much good

would produce in a

institutional setting

the rules of the ideal code

societies. Accordingly, in

the currency of a specific

society, people must regard

of that society as a given.

into

esti-

code

the

For

the goal is to determine which moral code would produce

the most good in the long run in the institutional

setting of the society. Third, and finally, the ideal

moral code will weigh the benefits of reducing unde-

sirable behavior as a result of impressing on people

moral norms against the costs of impressing those norms,

which will include feelings of guilt and alienation, and

the risks inherent in moral training. In short, the

ideal moral code will be careful in its condemnation of

actions.

Brandt believes that in coming to understand his

theory, we shall realize that its implications will

sometimes if not often contradict the implications of

act-utilitarianism. For he maintains that, while the

ideal moral code is designed to produce the most good per

person, it will not contain as one of its rules an in-

junction to do the most good possible. The reason,

according to Brandt, is that such an injunction would

produce chaos if people acted on it. He holds that even

172

in situations involving conflicts between rules, the

ideal moral code need not have to resort to direct

appeals to utility; rather, it is conceivable that in

situations of conflict people could be required to act in

accordance with the hypothetical actions of an intelli-

gent person who had fully internalized the rest of the

ideal moral code. Further, unlike many forms of act-

utilitarianism, Brandt's theory can avoid endorsing

secret optimific murders and secret optimific promise-

breaking, since it would presumably be a bad thing for it

to be generally taught and recognized that a person is

free to commit those actions.

As we have seen, Brandt's theory,

theories, does not imply that

accepted moral rules within a society

perhaps even presumptively binding.

unlike some other

all conventionally

are necessarily or

For he allows the

possibility that some socially accepted practices in a

society would not be endorsed by the ideal moral code for

that society. Since his theory calls for following the

best moral rules that are practicable within a society,

his theory will, however, often, but not inevitably,

endorse many conventionally accepted moral obligations.

He gives the following example.

A child of Hopi Indians is not expected to care for

his father (who is in a different clan), but rather is

173

expected to care for his mother, maternal aunt, and

maternal uncle. Since the institutional obligation does

not coincide well with natural affections, it is not

ideal, at least in a utilitarian sense. Yet, according

to Brandt, his theory might well endorse the current

system of obligations within the Hopi community.

Curiously, the two

the current system

his general theory.

reasons Brandt gives for supporting

do not follow straightforwardly from

He appeals to what he calls an "obligation of

humanity" and an "obligation of fairness." To clarify

the idea of an obligation of humanity, he gives an

example calling for good Samaritanism, in which a person

who is the sole observer of an automobile accident is

uniquely able and hence uniquely required to save a

life. The obligation of fairness, whose defense has been

associated with H.L.A. Hart and John Rawls, applies in

the present context as follows. Brandt believes that the

Hopi system of familial obligation operates like a system

of insurance, which gives people benefits and protections

in exchange for payments. Very roughly, the idea is that

in certain special contexts a person who benefits from a

cooperative scheme is morally bound to repay those bene-

fits, which are the products of other people's sacri-

ficial cooperation.

174

Whether Brandt correctly applies Rawlsian arguments

to the Hopi situation is of no concern here. The ques-

tion instead is: Why does Brandt try to defend institu-

tional obligations on the basis of--one would think--

purely deontological principles? Note that his general

theory requires evaluating societal institutions ulti-

mately not by fairness or justness but by whether those

institutions conform to the moral code ideal for that

society; and the code ideal for that society will con-

tain rules general conformity to which will produce the

most good per person.

The problem is this. Brandt has already admitted

that the Hopi system is not optimific. The only way for

him to be consistent is to maintain that the optimific

rules of familial obligation cannot be realized within

the current Hopi society. He might hold that, say, be-

cause of an unalterable fidelity to tradition and firmly

ingrained attitudes, most members of the Hopi society

cannot assimilate optimific rules. If Brandt did adopt

that style of argument, he would almost certainly be

driven to the undesirable moral conservatism he attri-

butes to many theorists of actual rule-utilitarianism.

For, by parity of reasoning, one could defend institu-

tionalized slavery and the institutionalized mistreat-

ment of minorities.

175

Here it bears repeating th~t Brandt is debarred by

his own theory from appealing to any impracticable rule,

regardless of its hypothetical optimificity. He empha-

sizes that only practicable moral rules can obligate

people; indeed, he asserts that the rules that morally

bind people must be learnable and must be actualizable

within their societies. Perhaps that insistence on

practicability explains why his defense of the Hopi

system appeals to grounds other than a hypothetical

optimificity.

Astutely, Brandt maintains, near the end of his

essay, that his theory might be open to the charge that

it could endorse actions that are so unjust that they

cannot be right. That fear appears to be legitimate.

For, at the very least, his theory will have trouble

explaining what is wrong with injustice. Like all forms

of utilitarianism, his theory is required to object to

injustice by reference to potential decreases in utility

rather than to the inherent value of treating people as

ends in themselves and not merely either as means to ends

or as possessors and producers of utility. The point is

that even if a consequentialist could avoid endorsing

patent injustices, he would have serious trouble in ex-

plaining why injustice is a serious evi 1.

Mill's remarks about security in Chapter Five of

Utilitarianism

176

go far, but, as I mentioned earlier,

probably not far enough, since it is not difficult to

think of seriously reprehensible injustices that would be

so rare and so secret as not to threaten people's

security. It isr again as I mentioned earlier, doubtful

that, say, the injustices committed against blacks in the

United States, seriously threatened the actual or felt

security of most citizens. Nonetheless, those injustices

were serious evils.

B.J. Diggs explains why rules of justice cannot be

adequately understood on Brandt's theory .

... The authority of the rule "One ought not to practice racial discrimination" does not depend on the rule's being generally accepted--this authority is not weakened in a society in which racial discrimination is accepted as the rule. But clearly the authority of this rule also does not depend on the good conse-quences which the rule would have if the rule had at least ninety per cent cur-rency. The obligation to follow it is imposed not by a hypothetical optimifi-city but by a fundamental principle of justice whose authority derives from the moral authority of free persons to pursue goals of their own choice and to legis-late for themselves. The principle asserts the right of all persons to be in the moral community of self-legislating persons.131

Brandt's theory, at least as it is developed in the

essay that I am discussing, will have serious problems

both with defining the moral significance of injustice

177

and with condemning injustice. In short, it is not in-

vulnerable to some problems associated with act-utili-

tarianism. Further, the theory that he develops in his

essay might be more vulnerable to problems with justice

than some other versions of ideal utilitarianism, de-

pending on how seriously we are to take Brandt's re-

quirement that the ideal norms should be practicable

within particular societies.

Since Brandt has fairly recently written more about

his theory, his thought deserves further discussion. Of

primary concern is the question whether Brandt can clear

his theory of the charge that it might endorse actions

and practices that are so seriously unjust as to be

irredeemably wrong. It will be difficult to answer that

question definitively, chiefly because Brandt, in his

book, A Theory of the Good and the Right does not devote

much space to defending his normative theory against

objection. Apart from his remarks on distributive

justice in Chapter XVI, he devotes only two short

sections in Chapter XV to criticisms of his theory.

Because he writes about his theory principally near the

end of his book, it is well to place his comments on the

theory within the general context of his book.

Although Brandt in his book does to some degree

178

describe and defend his theory of the ideal moral code,

most of the book was written not to elaborate on that

theory but to lay for it a rational foundation. In de-

fending his belief that people are morally obligated to

do what would be required by the rules of the moral code

ideal for their society, Brandt summarizes his basic line

of reasoning:

My defence, in brief, is this: a set of moral motivations is justified if it is what it would be if facts and logic were brought to bear on its 'choice' to a max-imal extent--that is, if fully rational persons would tend to support it in pre-ference to any other system and to none. I have argued that when we have identi-fied such a system of motivations, we have found one which is 'justified' for us in the only sense in which a moral system can be justified at the present time. Further, I have proposed (Chapter 10) that we define 'is morally obliga-tory' as 'would be called for by the moral system which is justified, and which fully rational persons would most tend to support.' If this is accepted, then what is called for by justified moral motivations, or by the justified moral code, is morally obligatory. I have argued, with some reservations, that at least for benevolent people this system will be a welfare-maximizing one. We have hardly discussed which principles a welfare-maximizing code would contain, but we know some of them roughly, and know how to go on to identify such principles for specific types of situation.132

The claim with which we are here concerned is that

the only acceptable moral code, at least for "benevolent"

people, is one that maximizes

give reason for believing

rational and benevolent (in

alleviation of suffering as

179

welfare. I shall try to

that a person could be both

the sense of desiring the

a final good), and yet be

opposed to a pure consequentialism. Brandt uses the

qualifying word "benevolent" because he believes that a

happiness-maximizing system may not be fully justifiable

to a selfish person, to whom one may be able to justify

only a Hobbesian morality, or at least the core of a

Hobbesian morality, which can be regarded as constituting

a protective system that would support criminal law.

Brandt maintains that rationally selfish persons can be

interested in parts of a moral code that benefit others,

but only insofar as those selfish persons can themselves

be benefited. Unlike rationally selfish persons, bene-

volent persons will be willing to accept more than re-

ciprocal and mutually beneficial ties: They will desire

the benefits of people and creatures neither harmful nor

beneficial to them, such as future generations, mental

retardates, small children, and animals.

Although Brandt's distinction between the rationally

selfish and rationally benevolent may be workable, he

does not give strong reason to believe that rationally

benevolent persons will want to maximize welfare as their

ultimate end. To show that they would view welfare in

180

that way, Brandt is required, at the very least, to give

reason for believing that the system of utilitarianism he

has in mind will not license seriously unjust actions in

which people are treated merely as means to the achieve-

ment of general utility. In short, he should give reason

for believing that rational people, who, let us suppose,

regard alleviating suffering as a final good, cannot

reasonably oppose his utilitarian theory on grounds of

justice. Although Brandt may be right in holding that it

is unclear what degree of benevolence a fully rational

person would possess,133 it is not at all clear, or per-

haps even reasonable to believe, that rational persons

should value maximizing welfare more than every other

good, including the good of justice, which could in

principle require actions at odds with those required by

generally useful rules.

In his book, A Theory of the Good and the Right,

Brandt tries to respond to the charge that the position

he endorses could, in easily imaginable circumstances,

license unfairness. In evaluating his position described

in "Some Merits of One Form of Utilitarianism," I argued

that his insistence on a rule's practicability within

some current institutional setting will almost certainly

limit his ability to condemn unfair and

that cannot be realistically expected

unjust practices

to be changed

181

within their institutional settings.

In defense of his theory, Brandt tries to respond to

some "paradoxes" (his word). Those paradoxes are de-

scribed in the third section of Chapter XV. The paradox

with which I am now concerned is embodied in the objec-

tion that conformity to Brandt's ideal utilitarian code

"would" (I prefer "could") result in significant unfair-

ness. I shall argue that although Brandt might have an

interesting response to unfairness of certain kinds, he

does not remove all worries about utilitarianly inspired

injustice.

The kind of unfairness Brandt addresses is sometimes

thought to result from conformity to ideal rules in

"maximizing situations." He gives the following exam-

ple. Brandt is on board ship, traveling tourist-class.

As a tourist, he is officially required to stay on the

promenade deck provided for the tourist-class, which,

unlike the promenade deck for the first-class passengers,

is unsuitable for exercise. People have argued, as an

objection to ideal rule-utilitarianism, that even if

long-range welfare were maximized by most tourist-class

passengers respecting the prohibition against being on

the first-class deck, the world might be better if a

small minority of tourist-class passengers unobtrusive-

ly if not quite secretly exercised on the first-class

182

deck. The suggestion is that violation of the rules by a

few might be ideal because it would do no harm, and would

in fact benefit the violators. The current "ideal rule,"

however, would appear to allow for people to take unfair

advantage of others' conformity, for it would allow

people to disobey the ship's rules when most other people

were scrupulously obeying them.

Brandt responds to the objection by claiming that the

currency of the revised ideal rule could not be welfare-

maximizing, since the rule would not be maximally helpful

when publicized and respected. For such a rule would,

according to him, only promote confusion and discontent.

The reason is that people would come increasingly to spy

on their fellow passengers, many of whom would most

likely contribute to an intolerable increase in the

number of visitors in the first-class facilities.134

Brandt maintains that while his position would not

endorse the practice of letting just anyone declare

himself a benefit-producing exception to a rule that is

effective only after most other people obey it, his

position can provide useful criteria for defining classes

of beneficial exceptions to rules. In the case in ques-

tion, he suggests that tourists who want to exercise on

the first-class deck could be required to take turns, or

could be allowed to use that deck only under medical

183

orders.

While Brandt's desire to formulate rules containing

maximally beneficial exceptions makes good utilitarian

sense, it is not at all clear that it answers people's

deepest worries about utilitarianly inspired unfairness.

For it is not at all clear how Brandt can rule out, in

principle, exceptions that are maximally beneficial but

unjust. In a society of deep-seated bigotry there might

well be rules containing exceptions that greatly benefit

the vast majority at the expense of some minority.

Perhaps Brandt would attempt to answer my objection by

holding that his form of utilitarianism provides a basis

for criticizing the moral status quo. Accordingly, he

might point to the passage in which he writes the follow-

ing:

The fact that we start with our present rules does not imply that a complete code would reflect out long-established 'intuitions.' On the contrary, the conception of a happiness-maximizing moral code can have rather revolutionary implications. This would be clear in any country where the moral code forbids racial intermarriage.135

It is, however, not clear how Brandt, from his posi-

tion, can justifiably feel confident in categorically

condemning the prohibition of racial intermarriage. For

while a Kantian could condemn the prohibition against

184

interracial marriage on grounds of personal autonomy,

Brandt must appeal to the consequences of general

conformity to certain rules. He must endorse only those

rules that can be applied within some society's institu-

tional setting, and that can be compatible not only with

the intellectual capacities of the average person in that

society, but also with his degree of selfishness and im-

pulsiveness.

Let me elaborate on the criticism. In a deeply

racist society where the white majority and very many

blacks accept racist practices and definitions as normal,

the vast majority of citizens will oppose interracial

marriage. Further, in such a society it is likely (i)

that the majority will find it psychologically difficult

if not almost impossible to condone interracial marriage,

and (ii) that the racist society will contain a network

of attitudes, social practices, and institutions that

maintain and reinforce the norm against interracial

marriage. In such a society it would be unrealistic to

expect most citizens to accept interracial marriage.

Indeed, such an expectation appears to run counter to

Brandt's prescription that moral rules should be prac-

ticable within a society's current institutions, and at

the very least capable of majoritarian acceptance. By

requiring that moral rules be compatible with most

185

people's emotional, intellectaal, and cultural limita-

tions, Brandt leaves open the possibility that his theory

could endorse injustice.

He might respond by

must be sensitive to social

saying that any ethical theory

and psychological realities.

That response, however, would misfire here. For I am not

advocating blindness to social and psychological limita-

tions imposed by cultural conditioning. Indeed, in

apportioning blame I believe that one must be sensitive

to the agent's level of awareness and cultural condi-

tioning. For example, a person who approved of slavery

in ancient times need not be morally blameworthy in the

obvious way that some contemporary Westerner would be for

expressing similar approval. Although sensitivity to

psychological and cultural limitations may be important

in apportioning blame, that sensitivity is less impor-

tant in determining morally appropriate action. For in

determining the morally right thing to do, we must be

concerned about questions of justice, and a concern for

justice requires a certain degree of intolerance for much

cultural prejudice, however deeply ingrained.

Brandt might reply to my worries about injustice by

insisting that his theory requires people to do the most

good.

... [I]f we understand what the details of such a system really would be, we can see that only a few persons conforming to it in the society where its currency would be welfare-maximizing would almost always be doing what would produce as much good as anything they might do insteact.136

186

Even if that claim is true, it does not appear adequately

to answer worries about injustice. It is well to remem-

ber that when Brandt talks about rules conformity to

which would maximize welfare, he must, according to his

own theory, be talking about rules that have a realistic

chance of being accepted by the majority in the society.

For, as we have seen, he holds that defensible moral

rules are realizable standards, not ideals that would

govern the reasoning of perfectly benevolent, omniscient

utilitarian agents. That emphasis, though it makes his

theory eminently practical, puts it in a precarious

position. For standards that are realizable within the

lives of most people--especially those people living in

particularly ignorant and bigoted societies--may not even

come close to defensible standards of justice.

That point can be illustrated by thinking about

fifteenth century Spain and its treatment of Jews. Even

if some Spanish Catholic of that time treated Jews in

accordance with the most nearly optimific rules rea-

lizable for that time, he would still very likely fail

187

to treat Jews fully as persons, deserving the same degree

respect given to Catholics. As suggested earlier, to the

extent that Brandt requires moral rules to be practicable

within societies, his theory will be possibly even more

vulnerable to problems concerning justice than the utili-

tarian theories that are not as sensitive to social

acceptance.

In any case, Brandt's normative theory in A Theory of

the Good and the Right does not appear to be substan-

tially different from that in "Some Merits of One Form of

Rule-Utilitarianism." It appears that in both writings

Brandt cannot rule out the possibility of countenancing

serious injustice. At the very least, his theory, as a

consequentialism, is required to view the odiousness of

injustice as the odiousness of producing less than

maximal utility.

in explaining

It seems, however, much

the significance of

unjustly, to say that injustice is wrong,

more plausible,

treating persons

not because it

violates some hypothetically, or even actually, optimific

rule, but because it fails to treat persons in accordance

with their nature--free valuers who have the right to

pursue their peaceful goals without being treated merely

as instruments for others' plans or happiness.

Since act-utilitarianism

since Brandt's theory, one

is

of

seriously

the most

flawed, and

sophisticated

188

versions of rule-utilitarianism, is also vulnerable to

serious problems, we may view with suspicion attempts to

ground Singer's extensive duties of rescue simply in

considerations of general utility. Moreover, since it is

difficult to understand how Singer could defend his posi-

tion without appealing to utilitarianism of some form, we

may view with suspicion the case for extensive duties of

rescue. We turn now to the fourth and final chapter,

which contains a summary and a general conclusion.

189

Chapter Four

In this, the fourth and final chapter, I shall first

gesture towards an appropriate good Samaritan statute, and

then summarize my principal conclusions. Let us look at

the Vermont statute, with which I am in general agreement:

(a) A person who knows that another is ex-posed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.

(b) A person who provides reasonable assist-ance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing contained in this subsection shall alter existing laws with respect to tort lia-bility of a practitioner of the healing arts for acts committed in the ordinary course of his practice.

(c) A person who willfully violates tion (a) of this section shall fined more than $100.0o.137

subsec-not be

The statute raises a number of questions and prob-

lems. To begin with, a maximum fine of $100.00 is an

excessively light punishment. Given the moral and social

importance of preventing grave physical harm to people,

that fine is too lenient. As already argued, failures

190

to effect rescues that might have prevented grave injury

or even death are serious moral breaches and are of con-

cern to most citizens, some of whom might some day re-

quire help. (I shall soon discuss in more detail appro-

priate punishment for bad Samaritanism.)

There are also problems of evidence and definition.

The court will have to determine whether someone "know-

ingly" failed to give aid. It will also have to inter-

pret such expressions as "grave physical harm," "danger

or peril," "important duties owed to others," and

"reasonable assistance." Sometimes it will be difficult

if not impossible to determine beyond a reasonable doubt

that the accused knew about the emergency to which he

failed to attend. That evidential problem will normally

be at,sent in cases of strict liability and negligence,

where the law punishes unintended harms and unintentional

failures to exercise reasonable care. Note further that

it is usually easier to prove that someone knowingly

harmed a person than that he knowingly failed to help.

For many people are so distracted by thoughts, drugs, or

"Walk-Man" music that it will sometimes be immensely

difficult to prove that they intentionally ignored some

emergency.

Although those

are not trivial, it

evidential/epistemological

is doubtful whether they

problems

by them-

191

selves can justify the rejection of good Samaritan laws.

For most failures to aid will most likely be unproble-

matic; and in cases where it is almost impossible to

determine whether the accused intentionally ignored the

emergency, juries can and should be instructed not to

convict. Since most crimes require a mental element

(mens rea), the situation with good Samaritan laws is not

in principle different from the situation with other

laws. Even in positive actions, intentions and knowledge

are at times difficult to determine, yet a person's men-

tal state is normally considered essential to the com-

mission of a crime. The point is simply that the claim

"I didn't know" is sometimes much more plausible than at

other times, and that when it is plausible, the accused

should be given the benefit of the doubt.

The expression "grave physical harm," though not free

from all vagueness, is probably clear enough to permit

reasonable judicial discriminations. Although the line

between grave physical harm and moderate physical harm

may sometimes be fuzzy, the distinction is usually

tolerably clear. In borderline cases juries can be

instructed not to convict. As we have seen, Anglo-

American law has generally failed to punish even egre-

gious Samaritans, who have intentionally neglected to

effect easy, life-saving rescues. Arguably, the harms

192

that good Samaritan laws are aimed at preventing or alle-

viating are fairly well defined: rapes, batteries, and

other crimes or accidents threatening life or limb. The

rationale behind the requirement to prevent grave rather

than moderate physical harm is connected to limits on the

moral duty to rescue. For failures to effect aid are

most obviously wrong when they could have prevented grave

injury or death at little or no cost and risk. Inten-

tional failures to try to prevent, for example, a per-

son's drowning or falling over a cliff show a disregard

for a person's basic interests in a way that a failure,

say, to offer him a bandage for a small cut does not. As

already argued, the more immediate, serious, and probable

a harm, the more likely a by-stander will have a moral

duty to try to prevent or alleviate that harm.

The expression "important duties owed to others,"

though not without difficulty, should prove tolerably

precise, largely because it will plainly not apply to

most potential rescuers. Presumably the expression is

needed to exempt from liability people who can save an

imperiled person only by, say, ignoring, or failing

adequately to protect, someone else to whom they have a

prior and more pressing duty. For example, someone who

is rushing a person to the hospital might not have time

immediately to report a battery.

193

There is, however, a question about the following

situation. Suppose that A can save B from drowning only

if A violates a contract made with C, who consequently

suffers financial loss. The problem here is that the "im-

portant duties owed to others" might, morally speaking,

be less important than, say, saving a life. I am in-

clined to think that the Vermont statute should read

"more important duties owed to others," and should call

for compensating a person for any losses that he or

others suffer as a result of his neglecting his other

duties. (Soon I shall talk about who should compensate

the losses.) Although a trucker might have an important

duty to deliver his goods on time, it is questionable

completely to relieve him of the responsibility to help a

seriously injured motorist stranded alongside the high-

way. At best the existence of other, less important

duties should only lessen one's liability for failure to

effect rescue.

It is usually clear when help of certain kinds will

constitute a "peril or danger" to the rescuer. The law

will not,~·, require the average citizen to wrestle a

gun or a knife from a criminal, or require someone to

rescue a person from a burning car, or require a non-

swimmer to rescue a person in hazardous tides. Although

the exceptions just mentioned are fairly straightforward,

194

the following question needs addressing: Should the fear

of future reprisal by a criminal constitute a peril from

which a citizen should be protected? Mininally decent

Samaritans who report crimes should be protected, but not

to the extent of making the reporting of dangerous crimes

optional. To the degree that they are able, police

should try to preserve the anonymity of witnesses and to

protect them. It is at least arguable that the minority

of criminals who do retaliate against witnesses should be

punished more severely than they otherwise would. At any

rate, since reprisals against eyewitnesses by criminals

are probably the exception and not the rule, and since

helping to convict criminals is arguably a citizen's

duty, fear of reprisal should not be recognized as a

justification for failure to report crimes in which there

is a threat of grave physical harm. My position on the

perilousness of rescue might be concluded by saying that

I believe that in cases in which it is unclear whether

the unattempted rescue would have been dangerous, a

finding of not guilty should be returned.

Finally, the idea of "reasonable assistance," though

not pellucid, is tolerably clear. After all, the law

already recognizes the "reasonable man standard," so that

we are not talking here about an entirely novel idea.

The idea will require commonsensical judgments within

the competence of the average citizen.

195

For example, it

is clear that if a person is drowning, reasonable assis-

tance will require the rescuer, to the degree that he is

able, to effect immediate rescue, which would normally

rule out his simply calling the police. If the person

nearest the imperiled swimmer cannot swim, he will be

required to effect the most immediate aid within his

ability and knowledge, which would usually require

finding someone nearby who can swim, or throwing the

drowning person a rope or a life preserver.

Some people will, through no fault of their own, be

unable to effect reasonable assistance. People can be

physically unable to effect reasonable assistance, as

when they are suffering from epileptic seizures, or when

they are physically restrained by others. Or people can

be _p_s-y_c_h_o~l_o=g_i_c_a_l_l~y'--~-i_n_c_a_p~a_b~l_e of effecting reasonable

assistance, as when they are so shocked by seeing blood

or mangled bodies that they become hysterical. Since

those traumatized or physically disabled people deserve

little or no moral blame, and since their non-rescues can

hardly be effectively deterred by law, there is little

moral or pragmatic value in punishing them.

Because the law will be aimed principally at en-

couraging people to do something rather than nothing, it

will be concerned less with whether the potential

rescuers were highly skilled than with whether

196

they

helped at all. Since it 1s reasonable to believe that

most rescue attempts will be sincere, once a rescue at-

tempt is made, the question of "appropriate assistance"

will often be a question whether the rescuer acted with

reasonable care or with gross negligence. For it is

reasonable to hold, with the Vermont statute, that a

person should be civilly liable only when he is grossly

negligent in effecting rescue.

The distinctions mentioned can be drawn by average

citizens. Unless someone can give positive ground for

believing that the distinctions cannot be reasonably

drawn in practice, the difficulty of drawing the dis-

tinctions cannot qualify as a cogent reason for rejecting

good Samaritan laws altogether.

The next question to consider i s : How severely

should bad Samaritans be punished? Although I have

objected to having only a light fine, I have not dis-

cussed in any detail a rationale for determining the

severity of punishment. The beginning of an answer can

be provided by holding that omissions to rescue should be

punished according to their moral seriousness. Natural-

ly, that answer is unhelpful unless one makes some useful

remarks about "moral seriousness."

turn.

To that task I now

197

Omissions are not inherently less morally serious

than "positive" actions. As already suggested, if agent

A deliberately fails to give agent Ba life-saving medi-

cine that is out of B's reach so that A can inherit B's

estate, A's omission is as reprehensible as would have

been any positive attempt by A to remove the medicine

from B's reach. There are, however, complexities here,

since not all failures to prevent harm are as morally

serious as would be their corresponding positive actions.

There are at least three morally relevant differences

between most failures to aid strangers one encounters and

positive deliberate attempts to harm them. First, the

motivation will normally be different. People who inten-

tionally drown, shoot, stab, or otherwise harm others

normally want them injured or killed, and aim at the harm

their actions produce. In contrast, most people who fail

to aid people in emergencies do not wish the imperiled

people any harm, but either do not want to be inconven-

ienced or fear involvement. Second, it is usually easier

for someone to avoid deliberately harming others than to

prevent them from being harmed by someone or something

else. (I shall soon argue that this second difference is

unimportant in evaluating good Samaritan laws.) Third,

and finally, the plight of the people needing rescue need

not be due to the potential rescuer, who might have

198

simply happened upon the emergency. That difference is

emphasized by libertarians, who insist that normally only

special voluntary actions and agreements can generate

positive duties.

While those three differences bear on our judgments

of people's actions and characters, they do not validate

the conclusion that only positive harmings should be

criminalized. First, although going out of one's way to

kill people by, say, drowning them will usually show

malice in a way that omitting to throw a rope may not,

the omission to throw a rope to a drowning person because

of slight inconvenience shows a serious disregard for

human welfare. A disregard for people whose peril one

immediately encounters may be less evil than malicious

attempts at harming them, but it is still a serious

evil. Further, in the most flagrant cases of bad Samar-

itanism, in which people intentionally fail to effect

easy, life-saving rescues, the distinction between doing

an evil and (simply) allowing it does not appear to make

a great moral difference. At any rate, that distinction

does not appear to justify a murder sentence in one case

and merely a light fine in the other. Second, although

it is usually easier to avoid directly harming people

than to prevent harm from befalling them, it will usually

be easy to do what good Samaritan statutes will require,

199

such as throwing ropes to drowning people, or shouting

warnings, or calling the police. The difference in ease

between the two cases does not justify treating failures

to effect rescue lightly.

Let us now draw some conclusions. The moral serious-

ness of omissions depends largely, though not entirely,

on the moral seriousness of the corresponding positive

harms. That contention implies that failing to throw a

rope to a drowning man, when one can do so at virtually

no risk and inconvenience is, when done without malice,

only a little less reprehensible than deliberately drown-

ing him. Those omissions, when performed by non-hysteri-

cal people, reveal a profound disregard for human life.

Even though failure to throw a rope is not, strictly

speaking, to drown someone, it should be seriously pun-

ished because the omitter neglected to save a life he was

specially placed easily to save.

The Vermont statute, which calls for a fine of

$100.00 as a maximum punishment, is too lenient in light

of the gravity of the offense. To determine appropriate

punishments, we must realize that some omissions to aid

are more morally serious than others. For example, a

person who sees that a child is about to fall into a

shallow ditch and neglects to warn the child will, in the

absence of legitimate excuse, be blameworthy. Yet it

200

might be argued that his non-rescue is less blameworthy

than the failure to throw a rope to a drowning person.

The failure to throw the rope is more serious because it

is a failure to prevent a more serious evil--death (as

opposed to possibly serious injury). Although good

Samaritan statutes are designed to encourage the preven-

tion of grave physical harm, some violations of the

statutes will be more morally serious than other viola-

tions. The degree of seriousness should, I believe, be

determined not by the seriousness of the actual, unaver-

ted harms that happened to have been produced but by

judgments (which the emitter should have made at the time

of the emergency) about the probable consequences of

letting the perilous situation run its course.

In good Samaritan law, as in negligence law, a person

should be liable not for the consequences of remarkably

freak accidents but for consequences foreseeable, or

thought probable, by reasonable people. Good Samaritan

law will be most fair and most effective when it is aimed

at punishing intentional non-preventions to which no

legal excuses apply. The law should not require people

to be omniscient, but it should require people to prevent

easily foreseeable harm.

Although I do not want to be extremely specific about

the exact penalties for bad Samaritanism, I can gesture

201

towards a rationale for det0rmining appropriate punish-

ment. As already suggested, I believe that there should

be a range

tive to the

embodied in

of punishments, so that the law can be sensi-

different degrees of disregard for people

different acts of bad Samaritanism. The most

serious penalties should be applied to cases in which

someone intentionally and quite inexcusably fails to

prevent a death foreseeable by any reasonable person.

Those people deserve at least as much punishment as is

now meted out to drunken drivers found guilty of "invol-

untary manslaughter." Less reprehensible are failures to

shout warnings to people who are about to fall into

ditches and failures to call the police to report serious

fist fights between adolescents. Although I cannot pre-

scribe exact punishments without knowing the exact de-

tails of the cases, I can say that the punishments

should, as I held earlier, be determined by the nature of

the harm reasonably foreseeable by the emitter. The idea

is that various ranges of punishments might be morally

acceptable, provided that those ranges should be deter-

mined by the seriousness of the offending omissions. And

the seriousness of the offending omissions should be de-

termined basically by the seriousness of the correspond-

ing positive harms. More

the omissions should, as I

precisely, the seriousness of

suggested earlier, be deter-

202

mined by judgments (which the omitter should have made at

the time of the emergency) about the probable conse-

quences of letting the perilous situation runs its course.

The final question to consider is that of compensa-

tion for injuries or damages involved in rescue. Since I

want to require rescue, it is only reasonable to make the

duty to rescue as fair and unburdensome as possible. To

that end I have agreed with the Vermont statute in

exempting rescuers from civil liability for damages

except in cases of gross negligence. If we impose a

general duty of rescue, we should not expose people to

situations in which they can be almost routinely sued and

found liable for injures. I shall argue that exemption

from civil liability is not enough. There is a case for

th~ government, in some circumstances, to compensate

rescuers for injuries and damages.

The principal rationale for state compensation is

that, by legally requiring the rescue of strangers, the

state is putting its citizens at risk. If putting some-

one at risk can generate duties to attend to his welfare,

the case against compensation cannot be established sim-

ply by the unsupported claim that harms incurred in the

pursuit of moral or legal duties do not warrant compen-

sation. In short, my argument is based on the contention

that in at least some circumstances, soon to be discussed,

203

a rescuer deserves compensation for his injuries.

The counterclaim is that if a citizen does nothing

supererogatory, he should not be "rewarded" for acting as

a decent human being. That position is questionable,

first, because it presupposes that injuries produced by

actions in discharge of moral requirements never deserve

compensation, and, second, because it misconceives com-

pensation for injuries as a reward. For my purposes my

second claim is the more important of the two and the one

that I shall now support. My view is that compensation

in the context under discussion does not reflect grati-

tude for services rendered, but embodies a recognition

that rescues, even easy-appearing ones, can sometimes

turn out to be costly; rescuers can suffer injury to

themselves or damage to their property. (I am not here

concerned with the question whether people should be

compensated for performing supererogatory rescues.)

Although my principal argument for compensating

injured rescuers rests on the claim that good faith

rescuers deserve compensation for their injuries, there

are pragmatic and utilitarian benefits to compensation.

I mention those benefits not because I believe that they

can by themselves uncontroversially justify laws and

governmental practices, but because they constitute

further motivation for compensating people once we grant

204

that they deserve the compensation. Since we are very

much concerned with encouraging minimally decent Samari-

tanisrn, and since encouraging the fulfillment of these

duties is in everyone's interest, there is some motiva-

tion to induce people to help others by making the burden

of helping them as light as possible. To that end we

might try to remove, to the degree that we can, one of

the principal disincentives to rescue, namely, the fear

of injuries and damages attendant upon rescue. Again,

the utilitarian argument is intended here as the icing on

the cake and not as the cake itself (i.e.' the argument

from desert).

It is all to easy for opponents of compensation to

think that, because good Samaritan laws will require only

easy rescues, risk~ of dangers are easily foreseen and

neutralized. That is not always true. For even in

recues that might appear easy, or rescues that would

normally be easy, conscientious people can be so rushed

that they trip or otherwise harm themselves or others.

Further, people can, for example, be struck in their

noses or eyes as they are rescuing people who are drown-

ing. Finally, people can be so intent on performing a

rescue that they do not adequately protect themselves

against injuries. Such people need not be blameworthy;

they may simply be so anxious about saving someone that

205

they exercise less care than they would have exercised in

less trying circumstances.

If there is, as I suggest, a good case for compensat-

ing the injuries and damages incurred in good faith

rescues, questions will arise about the source of the

compensation.

circumstances

In short, who should pay? Under what

should the government and not private

citizens pay? In the essay "Law, Morals and Rescue" A.

M. Honore suggests a number of possibilities, with which

I am in general agreement.138

In cases in which the injured rescuer has accident

insurance, like that of firemen and other professional

rescuers, his insurance could compensate him. In cases

in which the injured rescuer has no insurance it is

arguable that the person through whose fault the peril

arose should, to the degree that he can, be required to

compensate the rescuer. Now the following question

arises: Who should compensate people for injuries in (i)

cases in which those at fault cannot afford to pay for

some or all the damages, or (ii) cases in which no one is

at fault? Honore suggests, plausibly I think, that the

imperiled person might be reasonably expected to pay for

injuries and damages in cases in which no one is at

fault, because it is plausible to ground his duty to pay

in his wanting to be saved and his profiting at the

206

rescuer's expense. We are, after all, talking about

cases in which the rescuer does what the imperiled person

can be presumed to want done when it is impracticable to

obtain the imperiled person's consent. The remaining

case, in which no private citizen involved can afford to

pay, could call for State compensation, since the State

has put the rescuer at risk by requiring his interven-

tion. Although I realize that I have not given a de-

tailed account of compensation, my goal was simply to

give a general rationale for appropriate sources of

compensation.

The highlights of my position can now be summarized.

I evaluated arguments against good Samaritan laws and

found them unconvincing. For the laws cannot be

plausibly regarded as requiring unfortunate people to

confer gifts on strangers. I held that saving a person

from drowning by minimal risk and effort is not analogous

to giving someone a gift or a gratuity. The reason is

that a calm and deliberate failure to save innocent

strangers from serious injury or death, when one can save

them at little or no risk and cost, reveals a serious and

reprehensible disregard for people's humanity. I also

held that good Samaritan laws cannot be plausibly re-

garded as requiring charity in fulfillment of imperfect

obligation, because those laws require us to help

207

identifiable persons who are arguably entitled to that

help, and who could be plausibly regarded as having a

grievance against us if we refrain from helping them.

(Even a theorist who does not believe that imperiled

people have a "right" to be saved might hold that we are

morally required to help those people because of, say, a

duty of beneficence.) Further, I held that the laws

cannot be plausibly regarded as requiring heroism or

saintliness, since they require people to behave simply

as minimally decent people who can sometimes prevent

grave harm at little or no risk and cost.

I maintained that we can draw a workable and prin-

cipled distinction between reasonable and unreasonable

requirements of rescue, between duty and supererogation.

Although general duties of rescue might well be regarded

as restricting liberty more than typical criminal prohi-

bitions, the slightly greater limitation on liberty is

offset by the moral and social importance of preventing

grave physical injury or death. For the limitation on

liberty will not be oppressive, since most people will

rarely if ever find themselves in situations to which the

good Samaritan statutes will apply. What is more, when

people do find themselves subject to good Samaritan laws,

they will be able to prevent grave harm at little or no

risk and cost.

208

It is now appropriate to conclude the positive side

of my argument. I think that there are at least two

promising ways of defending good Samaritan laws. The

first, and more controversial, way is to attempt to base

the laws on a straightforward version of the harm prin-

ciple, which would endorse limitations of liberty to

deter people from causing harm to others without justifi-

cation. Presumably one straightforward version of the

harm principle would require prohibiting only those

set-backs to people's interests that occur as consequen-

ces of wrongful conduct. On that understanding of the

harm principle, good Samaritan laws can be justified only

if bad Samaritanism can be regarded as causing harm.

Does bad Samaritanism harm people? I argued that it

is plausible to regard bad Samaritanism as harmful in-

action in which people are wronged. I argued that fail-

ure to act in accordance with clearly defined (moral)

expectations can in some circumstances be said to have

consequences, including harmful ones. Given that analy-

sis and the moral acceptability of minimal duties of

rescue, bad Samaritanism can be plausibly regarded as

contributing to unprevented harm.

But what if someone rejects the view

Samaritanism causes harm, and believes that

that bad

it merely

209

allows harm to happen. My and Feinberg's answer is that

the distinction between causing harm and (simply) not

preventing it is not morally significant in cases re-

quiring minimally decent Samaritanism. The idea is that

the prevention of harm can in certain circumstances be so

morally important as to warrant legal sanction. In

short, even if we reject the causal efficacy of bad

Samaritanism, we can, I argued, reasonably accept the

second way to defend good Samaritan laws: the appeal to

an expanded version of the harm principle. According to

the expanded principle, there is a presumption in favor

of legally requiring one (i) to avoid harming others (by

"direct" action) and (ii) to make reasonable attempts (at

little or no risk and cost) to prevent grave physical

harm to people whom one

help. I conclude that

is in a special position to

because the leading arguments

against good Samaritan laws are unconvincing, and because

the positive warrant for the laws is reasonable, the laws

are acceptable.

210

NOTES

lJudith Thomson, and Public Affairs 1,

"A Defense of Abortion," Philosophy no. 1, pt. 6 (1971): 62-64.

2Aleksander W. Rudzinski, "The Duty to Rescue: A Com-parative Analysis," in James M. Ratcliffe, ed., The Good Samaritan and the Law (Garden City, N.Y.: Doubleday Anchor Books, 1966), p.92. The countries listed are Portugal (1867), the Netherlands (1881), Italy (1889 and 1930), Norway (1902), Russia (1903-17), Turkey (1926), Denmark (1930), Poland (1932), Germany (1935 and 1953), Romania (1938), France (1941 and 1945), Hungary (1948 and 1961), Czechoslovakia (1950), Belgium (1961), and Switzerland (various cantons at various dates).

3see, ~' Craig v. State, 220 Md. 590, 155 A.2d 684.

4An example of a status relationship that can generate positive duties is the relationship between parent and child. See State v. Staples, 126 Minn. 396, 148 N.W. 283 (1914) (criminal action). Other duty-generating relationships include those between a master and his apprentice and those between a ship's master and his crew and passengers.

5People v. Montecino, 66 Cal. App.2d 85, 152 P.2d 5.

6Reg. v. Nicholls, 13 Cox. Crim. Cas. 75.

7Rex v. Russell [1933] V.L.R. 59.

8Thus, the New Hampshire court said in 1897 [Buch v. Amory Manufacturing Co., 69 N.H. 257, 44 Atl. 809 (1897)]:

"With purely moral obligations the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad, sees a two-year old babe on the track and a car approaching. He can easily rescue the child with entire safety to himself. And the instincts of humanity require him to do so. If he does not, he may perhaps justly be styled a ruthless savage and a moral monster, but he is not liable in damages for the child's injury or indictable under the statute for its death."

9vt. Stat. Ann., tit.12 §519 (Supp. 1971).

lOA.D. Woozley, "A Duty to Rescue: Some Criminal Liability," Virginia Law Review, p.1274.

211

Thoughts on 69 (1983),

llFor details about the genesis of the bill, see Marc Franklin, "Vermont Requires Rescue: A Comment," Stanford Law Review, 25 (1972), pp. 51-61.

12see Comment, "Wisconsin's 'Good Samaritan' Statute," 48 Marg. L. Rev. 81 (1964-65).

13section 5 of the Principles of Medical Ethics of the American Medical Association reads as follows: "A physician may choose whom he will serve. In an emer-gency, however, he should render service to the best of his ability ... " Reprinted in STETLER & MURITZ, DOCTOR AND PATIENT AND THE LAW, App. C. at 455 (4th ed. 1964).

14The genesis of the California statute is discussed in Holland, "The Good Samaritan Laws: A Reappraisal," 16 J. PUBLIC L. 128, 130 (1967), and Note, "Torts: California Good Samaritan Legislation: Exemptions From Civil Liability While Rendering Emergency Medical Aid,'' 51 CALIF. L. REV. 816, 817-18 (1963).

15cAL. BUS. & PROF. CODE §2144 (West 1962).

16The 1967 bill was introduced as H.18. The bill passed the House, but the Senate added amendments, including a duty to aid. For the amendments see the JOURNAL OF THE HOUSE OF THE STATE OF VERMONT, Biennial =s_e_s_s..,...i_o_n---,,.6-=o-=-5-_=o...,.6--r(-:-1=9..,,..6=7....-)-. --------------

17see JOURNAL Biennial Session follows:

OF THE HOUSE 605-06 (1967).

OF THE STATE OF VERMONT, The statute reads as

(a) A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.

(b) A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts

212

constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing con-tained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice.

(c) A person who (a) of {his section $100.00.

willfully shall be

18charles Fishman, "Why Alleged Cannot be Charged." Washington Post, Dl and Dll.

19Ibid., Dll.

20Ibid.

21Ibid.

22Ibid.

violates subsection fined not more than

Onlookers to 16 Nov. 1984,

Rape pp.

23Joel Feinberg, The Moral Limits of the Law, Vol. 1 (Oxford: Oxford University Press, 1984), pp. 128-129.

24Ibid., pp. 129-130.

25union Pacific Ry. Co. v. Cappier, 66 Kan. 649, 72 p.283 (1903).

26Jeffrie G. Murphy, "Blackmail: Inquiry," The Monist 63, no.2 (1980).

27Feinberg, op.cit., p.136.

28Ibid., p.142.

29Ibid., p.142.

30Ibid., pp.140-142.

31Ibid., p.141.

32Ibid., p.140.

33Ibid.

A Preliminary

213

34Ibid., p.143.

35Richard Epstein, "A Theory of Strict Liability," in Philosophical Issues in Law, ed. Kenneth Kipnis (Engle-wood Cliffs, N.J.: Prentice-Hall, 1977), p.130.

36Ibid., p.131.

37A.D. Woozley, "A Duty to Rescue: Criminal Liability," Virginia Law p.1299.

Some Thoughts on Review 69 (1983),

38James Fishkin, The Limits of Obligation (New Haven: Yale University Press, 1982), p.72.

39Lord Thomas Macaulay, Code," in Works, 8 vols. (New Co., 1887), Vol. 7, p.494.

40ibid.

41Ibid., p.495.

"Notes on the Indian Penal York: Longmans, Green and

42Feinberg, op.cit., pp.154-157.

43Macaulay, op.cit., p.495.

44Ibid., pp.496-497.

45feinberg, op.cit., p.155.

4 6 Ibid. , pp. 15 6-15 7.

47Ibid., p.157.

48Ibid.

49Ibid., p.158.

50ibid., pp.163-164.

5lrbid., p.167.

52rbid.

S3rbid., pp.159-161.

s4rbid., p.161.

ssrbid., p.174.

214

56Eric Mack, "Bad Samaritanism and the Causation of Harm," Philosophy and Public Affairs 9 (1980): p. 241.

s7rbid., p. 244.

58feinberg, op.cit., p.182.

5 9 Ibid. , pp. 18 2 -18 3.

60rbid., p.183.

6lrbid., p.176.

62rbid., p.177.

63rbid.

64rbid., p.184.

65Ibid.

661bid.

67rbid.

68rbid., pp.184-185.

69rbid., p. 185.

70M k . ac , op.cit.,

71Ibid., p. 240.

72rbid.

73rbid., p. 241.

74Ibid., p. 240.

p.244.

75feinberg, op.cit., p.185.

76rbid., p.186.

77rbid.

78Gerald Dworkin, "Paternalism," in Morality and the Law, ed. Richard A. Wasserstrorn (Belmont: Wadsworth Publishing Co., 1971), p. 114.

79John Stuart Mill, On Liberty, ed. Gertrude Hirnmelfarb (Middlesex: Penguin Books Ltd., 1983), p.72.

215

so Ibid., p. 143.

s1Ibid., p.151.

82H.L.A. Hart, Law, Libert~ and Morality (Stanford: Stanford University Press, 1963 , p.33.

83The words are from Himmelfarb's introduction to On Liberty, p.33.

84nworkin, op.cit., p.117.

85Mill, op.cit., p.173.

86Ibid.

87nworkin, op.cit., p.120.

88Ibid., p. 121.

89Joel Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1973), p.47.

90Ibid.

91Ibid., p.48.

92M. 11 . 1 , op. C 1 t. , p.166.

93feinberg, Social Philosophy, pp. 50-51.

94John Harris, "The Marxist Conception of Violence," in Philosophical Issues in Law, ed. Kenneth Kipnis (Englewood Cliffs, N.J.: Prentice-Hall, 1977), p.138. The quotation is from Frederick Engels, The Condition of the Working Class in England, trans. and ed. Henderson and Chaloner (Oxford, 1958), p.108.

95The quotation is used in Harris's "The Marxist Con-ception of Violence," p.140. It is from Karl Marx, Capital I, ed. Engels, trans. Moore and Aveling (London, 1887; repr. 1957), chap. XV, sec. 8.c. p.480.

96rhose conditions are described in Harris's essay, p.141. Harris gives the following citation: Eric D'Arcy, Human Acts (Oxford, 1963), pp. 47-49, 55.

97Harris ibid. ' 98Harris, ibid., p.142.

99rbid.

1001bid., p.143.

1011bid., p.144.

1021bid., p.143.

216

1031bid. quotes from Morality and 1971), p.187.

Those conditions are cited by Harris, who John Casey, "Actions and Consequences," in Moral Reasoning, ed. John Casey (London,

1041bid., pp.143-144.

1051bid., p.144.

1061bid.

1071bid., p.148.

108rbid., p.144. The quotation is taken from H.L.A. Hart anc.r--A.M. Honore, Causation in the Law (Oxford, 1959), p.35.

1091bid., p. 145.

llOrbid., p.146.

1111bid., p.149.

112Mack, op.cit., p.240.

1131bid., p. 241.

114Harris, op.cit., p.149.

115Ibid., p.146.

ll61bid., p.140.

117M k . ac , op. c 1 t. , p.241.

118Harris, op.cit., p.138.

119Peter Singer, "Famine, Affluence, and Morality," Philosophy and Public Affairs, 1, No. 3 (Spring 1972), 231.

1201bid.

217

121rbid., p. 241.

122R.B. Brandt, N.J.: Prentice-Hall,

Ethical Theory (Englewood Inc., 1959), p.387.

Cliffs,

123R.G. Frey, in the and Rights, ed. R.G. Frey Minnesota Press, 1984), p.7.

introduction to (Minneapolis: University

Utility of

124R.B. Brandt, Ethical Theory, pp.389-390.

125navid Hume, A Treatise of Human Nature, L.A. Selby-Bigge, ed. (Oxford: Clarendon Press, 1888), p.497.

126John Rawls, "Two Concepts of Rules," Philosophical Review, 64 (1955) 16.

127J,J.C. Smart and Bernard for and against (Cambridge: 1973), pp.69-72.

Williams, Utilitarianism: Cambridge University Press,

128Richard Brandt, "Some Merits of One Form of Rule-Utilitarianism" in Readin s in Contem orary Ethical Theory, ed. Kenneth Pahel an Marvin Sc 11 er Englewoo Cliffs, N.J.: Prentice-Hall, Inc., 1970) p.288.

129Ibid., p. 291.

130Ibid., pp.293-294.

131B. J. Diggs, "A Comment on 'Some Meri ts of One Form of Rule-Utilitarianism"' in Readings in Contemporary Ethical Theory, ed. Kenneth Pahel and Marvin Schiller (Englewood Cliffs: Prentice-Hall, Inc., 1970), p.315.

132R.B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp.304-305.

133Ibid., p.293.

134Ibid., p.299.

135rbid., p.293.

136rbid., p.300.

13 7 Vt . St at . Ann. tit. 12 , § 51 9 (19 7 3) .

138A.M. Honore, "Law, Morals, Rescue," phical Issues in Law, ed. Kenneth Kipnis Cliffs, N.J.: Prentice-Hall, 1977), pp.112-113.

in Philoso-(Englewood

218

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