Five shoppers at a Witchita, Kansas convenience store simply stepped over the body of 27 year-old LaShanda Calloway who lay on the floor bleeding severely. None stopped to ask if she was in need of assistance. None even bothered to call 911. Ms. Calloway died later that day at a Witchita hospital of injuries the result of a stabbing; she had been an innocent bystander, wounded in someone else’s fight.
In other civilized nations there are ‘Good Samaritan’ laws, sometimes known as ‘duty to assist laws,’ which place a legal responsibility on citizens to assist others in distress. These nations include Israel, Italy, Japan, France, Belgium and Spain. Under these laws, citizens who fail to provide a reasonable degree of assistance may be prosecuted and face fines and/or a given number of hours of community service as punishment.
Several states in the United States have a much weaker kind of ‘Good Samaritan’ law. These protect would-be aides to those in need in case something goes awry during the process of voluntary assistance. However, there is no legal duty to assist established by these laws.
Some legal scholars, while supportive in general of a moral duty to assist, oppose laws that codify this moral duty into a legally binding one. Some, like Professor Eugene Volokh of UCLA Law School hold that such laws would be ineffective. “Most witnesses who fail to rescue or report act out of callousness, fear, or deep-seated loyalty to family, friends, or confederates,” he writes, so that “it's unlikely that knowing about a legal duty to rescue or report will have much of a normative effect on their behavior.” Other scholars challenge the enforceability of such laws. Because we could not draft laws that specify what response is necessary in many circumstances, argues Professor H.M. Malm, we’d have to have laws with vague terms like ‘minimal,’ or ‘reasonable.’ And, she writes, this poses a serious problem; “The use of vague terms opens us up to the risk of prosecutorial abuse in deciding which cases come to trial, and perhaps more important, of convicting people who were not actually bad Samaritans, but merely nonheroic ones.”
Professor Malm argues that such laws are a form of ‘legal paternalism’ and clash with fundamental premises of liberalism. Others join her in opposing the law arguing that the government should not be in the business of legislating morality, and ought to leave those kinds of decisions for people to decide for themselves. Nineteenth century English poet, historian and philosopher Thomas Babington Macaulay sums up this view in his classic Notes on an Indian Penal Code: “the penal code must content itself with keeping men from doing positive harm, and must leave to public opinion, and the teachers of morality and religion, the office of furnishing men with motives for doing positive good.”
If your child is drowning in a pool, and an adult could easy have saved it at no risk to himself but did not bother, because he was afraid to get his suit wet, you might reconsider the issue. Many laws use vague terms, such as ‘with all deliberate speed’ or what a ‘reasonable’ person considers private; this has hardly stopped us from enacting them. Above all, laws have an expressive function. They are one way in which we state what our moral expectations are. They are of special value when, in a growing and complex society, it is unclear what we as a community consider right and wrong.
[*Alex Platt contributed to this article.]
Amitai Etzioni is the author of the The New Golden Rule and most recently of Security First: For A Muscular, Moral Foreign Policy.
www.securityfirstbook.com
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