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Published online by Cambridge University Press: 09 June 2015
Quite by accident, Scarlett is in imminent danger of losing life or limb. You know this, and can rescue her without any unreasonable cost, inconvenience, or danger to yourself. Yet you stand by idly, and she suffers accordingly. Assume that morally speaking, you failed to do your duty; you ought to have done your best to rescue her. Should there be a criminal law penalizing your omission?
Joel Feinberg imposes the following two constraints — which may be called “liberal” — on any answer to our question. First, if it is reasonable that there should be a criminal law requiring rescue, then whenever there is a morally wrong omission to rescue, there must be someone who is victim of that omission. There must be no victimless crimes. Secondly, all criminal law must protect individual moral rights. When law protects people who need to be rescued and when others can rescue them at no unreasonable inconvenience, cost, or danger, the imperilled people must have a moral right to be rescued. If so, what precisely is the moral right that comes into play? Who are the victims? Joel Feinberg offers answers to these questions, answers intended to support the view that it is indeed reasonable for there to be a criminal law penalizing omissions to rescue, where rescue would involve no unreasonable cost, inconvenience, or danger to the potential rescuer.
1. Feinberg, J., Harm to Others (New York: Oxford University Press, 1984) at 144.Google Scholar
2. Ibid.
3. Ibid., at 147.
4. Ibid., at 145.
5. Ibid., at 144.
6. See e.g. Jackson, F., “A Causal Theory of Counterfactuals” (1977) 55 Australasian Journal of Philosophy at 3–21;Google Scholar Thomason, R.H. & Gupta, A., “A Theory of Conditionals in the Context of Branching Time” in Harper, W.L., Stalnaker, R., & Pearce, G., eds., Ifs (Dordrecht: D. Reidel, 1981) at 299–322;Google Scholar Skyrms, B., Causal Necessity (New Haven: Yale University Press, 1980) c.IIA;Google Scholar Kvart, I., A Theory of Counterfactuals (Indianapolis: Hackett, 1986);Google Scholar Sanford, D., If P, then Q: Conditionals and the Foundations of Reasoning (London: Routledge, 1989) at 170f; etc.Google Scholar
7. On the association of might with a significant probability, cf. Sanford, ibid., at 113:
‘Might’, in addition to indicating something about epistemic possibility, indicates something about epistemic probability. One’s belief that it is possible that P, or that it is possible for a to f, is not sufficient for the appropriateness of saying ‘it might be that P’ or ‘a might f’. Although it is possible for me to fly to Omaha tomorrow, it is not true that I might fly to Omaha tomorrow, for the probability that I will fly to Omaha tomorrow is very low.
8. Feinberg, supra, note 1 c3.
9. Problem for the reader: White can save either a stranger or her uncle Gray. She secretly and irrationally despises Gray but knows he has left her a fortune in his will. Though he would be much easier to save, she rescues the stranger, calling out to Gray, “At last, the moment I’ve been waiting for.” In the event, Gray dies. Given the principle that no man may profit from his own wrong, should White inherit? What if she saves neither? The answers will reflect one’s moral views, though they need not directly bear on the legal, duty to rescue.
10. The variety of questions was suggested by the list of independent criteria for distributive justice in Lucas, J.R., On Justice (London: Oxford, 1980) at 164–68 with the note at 164f.Google Scholar On the relevance of the question of who would benefit most from a distribution, see Griffin, J., Wellbeing (London: Oxford, 1986) at 182f,Google Scholar on the distribution of education. Cf. also the following passage at 213:
If I burn a log fire because I need it and the rest of you do not, then my benefit does not rest objectionably upon your burden. That is because the introduction of needs also introduces equal respect: people’s actual interests matter, and matter equally. But if I benefit because it is my turn, or because it is my name that came out of the hat, then my benefit also ceases to rest, in any objectionable sense, on your burden. Chance at an actual benefit also matters. If 1 simply award myself the benefit, then not everyone has an equal chance at it. If, on the other hand, it is simply my turn, then everyone will in time have his chance. If my name came out of the hat, then everyone has had a chance. These modal matters — neither actual consequences nor hypothetical ones — also count.
