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Duty To Rescue
Duty To Rescue
800-06-0338
1,907 words
In all I read about the "Duty to Rescue", I found that both proponents and
opponents agreed that this duty is a moral obligation that must be fulfilled. However,
the opponents are reluctant to consider it a legal obligation. I will try in this paper to
discuss some of their arguments to prove that the "Duty to Rescue" should be a legal
duty. I also believe that the Islamic law's approach in that regard deserves our
attention. The Individualist vs. Social discourse is very important in the discussion. I
will try to prove that the Social will ultimately achieve what the individualists want.
Besides, I argue that this will not prejudice the individual liberties. Nevertheless, the
No one disagrees with the fact that rescuing others is a moral duty. It is
remember that my international law professor told us before that when a certain state
decides to consider a moral duty as a legal one this means that it has a highly
advanced legal system. Of course any state wants to improve its legal system;
however, it is the difficulties arising from trying to enforce the moral obligations that
your eyes without bothering your self to call the police. How can any person feel safe
in a society like that. It is therefore the duty of the legal scholars to find a solution for
that strange situation and not to escape from this duty by their criticism. In short, the
failure of any legal system in maintaining the security of people is a failure to fulfill
difficulty, as Lord Macaulay sees, "to draw the line between harm producing
omissions which ought to be legally proscribed, and those which ought not."1 Before
discussing this argument I want to talk about the purpose of codification. If we look at
this issue from a historical perspective we will find that in the past there were no
written laws. It was the judge who adjudicates every case with his sense of justice
without referring to any code. However, it was difficult for a system like that to
continue because it will lead to a conflict between judgments. For example, if two
criminals commit the same crime it is possible that one of them will be sent to jail for
two years and the other for ten. Thats why there is now written laws. In fact,
codification does not mean that the judge is merely implementing the written law
without assessing every case separately. Still, the judge has a discretionary power that
allows him to see the best solution for every single case. For the same reason, many
states, like Egypt, provide in their laws that if the written law does not include a
solution for a case before the court, the judge has the ability to refer to other rules
even if it is the general rules of justice. I agree with Lord Macaulay's view on the
difficulty to draw the previously mentioned line by law. However, I think that
Macaulay under estimated the role of the judge who is the one who has the ability to
draw this line. If we want to apply a Good Samaritan Law we must give the judge a
huge discretionary power to adjudicate on case by case basis. For example, if there
was a crime committed in front of a bystander it is the judge who decides whether the
bystander was careless and therefore guilty or he had serious reasons for not calling
the police. It is apparent that this can not be deduced by law but rather by the judge.
1
- Kadish & Schulhofer, Criminal Law and its Preprocesses (2001), p. 186.
As a proponent of a duty to rescue, I appreciate the Islamic Law's approach in
that field. Islamic scholars made an advanced distinction between the circumstances
of every bystander bearing in mind that "the safety of one's life takes precedence over
others."2 The distinction is made between the bystander who had the ability to rescue
and the one who did not. If the bystander had the ability to rescue and he was alone
it's his duty to rescue and if he did not he would be liable. If there is more than one
bystander and only one of them had the ability to rescue and he did not he would be
liable too. Moreover, if all the bystanders had the ability to rescue but no one of them
did it all of them would be liable. However, if they all were able but only one of them
rescued the victim no one of them would be liable. Accordingly, if a child drowned in
a river the only liable bystander will be the one who can swim. Also, in Kitties case
all the neighbors who were able to call the police would be liable. Again, it is apparent
here that the judge has a great discretion. The judge is the only one who has the ability
to decide whether the bystander is guilty or not according to the previously mentioned
conditions.
reject any approach which seems at first blush to be infringing individual liberties.
However, I think that not applying a Good Samaritan law will infringe individual
liberties. This is because there is no liberty without being safe. For example, how can
the police know that there is a certain crime committed if no one reported it? If the
police does not know, the criminals will do whatever they want. Consequently, we
must restrict people's liberty for the sake of liberty. By so doing it is apparent that the
2
-Muhammad Iqbal Nadvi, director and imam of Al-Falah Islamic Center, Oakville, Ontario, Canada, a
part of his "Fatwa" (Advisory Opinion): (Failed to Rescue One of Her Children: Is She Responsible?)
Available at http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-
Ask_Scholar/FatwaE/FatwaE&cid=1119503549426
social approach is achieving what the individualists want. On the contrary,
individualists will not achieve their main goal which is individual liberties. So, it can
be argued in this regard that the social approach is more individualist than the
individualist approach itself. Moreover, almost all the legal scholars agree that "if the
bystander has a contract with some third party to help potential victims, that can
create a duty under the criminal law".3 The question here is why do the individualists
accept the restriction of individual liberties by contracts but they do not accept their
restriction by law? May be this is because the person himself accepted to restrict his
liberty by his own will. In consequence of that, it can be said that restricting
democratically elected parliament. So, the two cases are the same and the difference is
know that Israel has incorporated in its law a duty to snitch. It was argued that this
law, despite the fact that it was promulgated from a social perspective, is anti-social
because it is used for political rather than legal reasons. More specifically, it is used to
give incriminating information about the Palestinians. However, let us look at the
other side of the coin. From an Israeli perspective, a law like that, notwithstanding the
moral element, is so useful for the Israeli people. It helps them maintaining their
Palestinian attacks. Bearing in mind that there is no liberty without security, one can
Good Samaritan Law will be striking for the society. I disagree with that for the
3
- Leon Katz , Bad Acts and Guilty Minds (1987), p.139.
following reasons. First, in form this argument is not presented in a professional way
as it tries to prove an opinion by making fun of the opponents. Others may not see it
as a comedy but rather a tragic way of expressing an opinion. Second, one may
wonder is it more striking to see somebody being stolen in front of your eyes and
instead of calling the police you kept laughing at him, or to apply a Good Samaritan
law?! Further, the argument presented in the episode can be easily refuted. It goes
without saying that any state intending to implement a major amendment in its legal
system will pave the road for this implementation so that the society can understand
it. Of course the media will play a very important role in making the people aware of
what is going to happen. This is exactly what happened in the recent Constitutional
amendments in Egypt where the media kept talking about these amendments for
almost a year. Consequently, when these amendments where applied people where
familiar with them. In brief, I agree with the scholar who said: "I give Seinfeld's final
Talking about a duty to rescue in the international field seems a little bit
strange. However, after reading the UN's Charter any one can easily deduce that the
principle is there. The duty to rescue is apparent in all of its articles although it is not
explicitly called so. Maintenance of international peace and security is one of the most
important goals of the organization. As stated in the preamble of the UN's Charter" we
the peoples of the United Nations united for a better world to save succeeding
generations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind"5. In order to achieve its goals, the UN created the Security
Council to be the organ having the power to enforce its charter when any breach
4
-Seinfeld: Final Episode, Good Samaritan Law?!? ,Tilt Law Review, available at
http://216.194.97.43/outlawyr/tilt/review/review1-03.html
5
- Available at http://www.un.org/aboutun/charter/index.html
occurs. According to that if the security of a member states was threatened by another
state the Security Council will intervene in order to stop that breach. "The Security
Council has two forms of enforcement available to it; those described in Article 41
(not involving the use of armed force), and those described in article 42 (involving
action by air, sea or land forces)."6 Is the duty to rescue something other than that? As
an ideal situation it is a very good approach to have an organ that is willing to help
whenever any breach occurs. However, in realty this is not the case where the
principle of sovereign equality of all the member states is proved to be a lie. In fact,
the council seems to be fulfilling the agenda of its permanent members regardless of
the interests of the other members. The council's intervention in the first gulf war to
rescue Kuwait and its failure to rescue the Palestinians all of these years represents a
good example for this argument. Indeed, the duty to rescue on the international level
is proved to be political rather than legal. This has been the case to the extent that I
believe that a non-rescue rule in the international field is better. Nevertheless, that
does not mean that the defect is in the duty to rescue it self but rather in the way it is
applied. That is why I believe that the international duty to rescue needs a huge
reform.
6
- Philippe Sands & Pierre Klein, Bowett's Law of International Institutions, p.46