The civil and criminal laws that govern individual behavior vary somewhat from country to country. In general, though, the sorts of behaviors that are subject to civil sanction in one place are similar to those in others, and the actions that are crimes in one place are typically crimes in another. Clearly, there are exceptions, but in a broad sense, this is true.
When we think about the behaviors that our law codes address, the most evident common theme expresses the state’s duty to protect its citizens. In some cases that protection is expressed in terms of promoting the common welfare but that is actually a second-order effect.
The common welfare is promoted by preventing, by sanctioning and by punishing, behavior that is damaging to those subject to the law’s requirements . It is useful for lawmakers to describe their acts in positive rather than negative terms, though, and protection of “the pursuit of happiness” is a more felicitous slogan than “prevention of tortious interference”.
The laws that protect us from physical and financial harms perpetrated by individuals, groups or even the state itself are easy to understand. I cannot, under most circumstances, purposely injure you or in many circumstances create conditions in which you are likely to be harmed. I must restrain myself from prohibited actions and I must undertake required actions in order to protect others and in order to maintain my own rights to the protection of the authorities.
My legal obligations to go beyond those specified requirements, though, are extremely constrained.
I think it’s easy to accept the idea that saving another’s life, when we have the opportunity to do that, offers a clear test of the general stance of our legal systems since it represents what most would see as the extreme case of a potential responsibility to act in another’s behalf. If I am not required to save a person’s life, how can I be required to save his property, or money, or reputation, or to protect his well-being, in general?
But, in fact, in the United States our legal system will (for the most part) not punish me for failing to save your life (assuming no special relationship or condition), even if I have the opportunity to do so.
(Ten US States have some form of “Good Samaritan Law”, which encourages individuals to come to the aid of those in great danger. The penalties provided for not doing so are minimal, however. The remaining 40 States do not have such laws. See, for example, the Texas discussion below.)
The following was written in response to a question on that point.
Source: The Austin Chronicle. Luke Ellis. August 6, 2004.
“Does the law require me to help people in a dangerous situation (like about to be hit by a car)?
While most of us would agree that you have a moral duty to help a person in need if possible, as a general rule, a bystander is under no obligation to come to the aid of another person in distress. Accordingly, under Texas law, a bystander who did not create the dangerous situation is not generally required to prevent injury to other people in a dangerous situation.
To help illustrate this rule, consider this classic example. While enjoying the afternoon on a boat in Lake Travis, a man sees a young child drowning in the lake. There is a life preserver right next to the man on the boat, and it would take little, if any, effort on his part to throw it to the drowning child.
Rather than help the kid, the man decides he would rather continue cruising down the lake. Putting aside the seriously troubling moral implications of this decision, under the law, the man on the boat is under no general legal duty to render assistance, thereby allowing the man to avoid legal responsibility for failing to save the drowning child.
Like most areas of the law, there are exceptions to the general rule that a bystander owes no duty to render assistance to a person in distress. One of the most important exceptions is that if the bystander negligently created the dangerous situation, then the bystander has a duty to do something about it to prevent injury to others. Using the previous example, if the man in the boat pushed the child in the water as a joke, the man could be held legally responsible for failing to render assistance.
Hopefully, even though we aren’t obligated to help, we’ll all still throw the life preserver when and if the time comes!”
Mr. Ellis is quick to correctly point out the distinction between the legal and moral requirements of the situation. But the distinction is what reinforces our point. If the man cannot be held legally accountable for failing to take a life-saving act that is readily available to him, the primacy of restraint as the fundamental requirement of the law is clear.
In a publication of the American Law Institute, a general rule applicable to a similar case is discussed.
(From Wikipedia) See, for example, Aba Sheikh v. Choe, 156 Wn.2d 441, 457, 128 P.3d 574 (Wash. 2006), which discusses Restatement (Second) of Torts sec. 315 and 319, stating:
As a general rule, our common law imposes no duty to prevent a third person from causing physical injury to another… Additionally, under the public duty doctrine, the State is not liable for its negligent conduct even where a duty does exist unless the duty was owed to the injured person and not merely the public in general… However, this court recognizes an exception to both these general rules. [A] duty arises where ‘a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.’ [Therefore,] we have adopted one class of these ‘special relation’ cases as described in section 319: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Here the rule and an exception to it provide a useful and clarifying contrast. Except in certain cases where the relationship between the parties gives rise to an obligation beyond the norm, we are not subject to legal penalty for failure to prevent injury to another, even (as we have seen) to the point of death.
Looking to other countries for context is interesting. Several European countries do have laws that specifically require an individual to come to the aid of a person in great danger. France is noteworthy for providing meaningful penalties for failure to do so.
In the most populous countries: China and India; the situation is very interesting. Historically neither of those countries, whose populations comprise roughly half of the world’s total, have had any requirement that a person help another in peril. High-profile modern cases in both countries have seen those who did provide aid to the injured and dying successfully sued for damages by those whom they helped.
Recent action in both legal systems has targeted protection of the Good Samaritan from damages resulting from his attempt to render aid, as opposed to requiring that aid be rendered.
We might look at the examples in Europe and the ten US states that have enacted some sort of provision requiring an individual to attempt to aid the distressed and see a movement toward common morality from strictly common law. But it has to be said that laws governing a very small percentage of the world’s population place a requirement on a person to affirmatively act to aid another.
But there are, in fact, circumstances both within the law and in addition to it in which we are obliged to act beyond the requirements of restraint.
Those, as we will argue, move the case from the arena of The Ethic of Restraint to that of The Ethic of Respect.
©Charles R. Lightner