Defending the Undefendable II: Freedom in All Realms

26.

THE BAD SAMARITAN

In the Bible, the tale of the Good Samaritan is a dramatic one. After other travelers have passed by the man lying by the side of the road in need of aid, the Good Samaritan alone stops to succor him.

And the moral of the story is clear: if you help the less fortunate, you will be rewarded. In the “modern version” of the account, the Good Samaritan is a social worker who, coming upon a bleeding victim of assault and battery lying in the street, exclaims, “Oh, the poor socially deprived muggers who did this! They must have felt awful to have perpetrated such a foul deed. I must go and comfort them.”

So far, there is nothing amiss for the libertarian. The code of non-aggression certainly does not prohibit the provision of aid to our fellow man in need.

But this idyllic scene was rudely interrupted with the enactment of “Good Samaritan” legislation in Minnesota. This law required that witnesses come to the aid of anyone in “grave physical danger,” and anyone who fails to do that is subject to misdemeanor charges and a fine of up to $200. The statute did not demand that passers-by undertake acts of heroism by thrusting themselves into violent or potentially violent situations. In such instances only “reasonable assistance” was mandated, such as summoning help from the police.

This initiative was prompted by the New Bedford, Massachusetts, case in which a woman was raped on a pool table in front of several onlookers, and by the famous Kitty Genovese episode, in which a lady was brutally and fatally stabbed on a street in Queens, New York, in the clear sight of dozens of people from their apartment windows in nearby high rise apartment buildings.

According to Minnesota state Rep. Randy Staten, the author of the measure, “Previously, an expert lifeguard could watch a six-month-old baby crawl into the river and drown and sit by or do nothing about it and nothing would happen . . . That is totally unacceptable conduct for a civilized society.”

But this will not do. Any lifeguard who sat idly by while a six-month-old baby (or anyone else for that matter) drowned in front of his very eyes, would at the very least be guilty of contract violation. The lifeguard was hired, presumably, to obviate this very occurrence. That he lifted not one finger to prevent it most certainly would have been penalized—long before the passage of the Minnesota Good Samaritan Act.

Of course, if an off-duty lifeguard, or any other private citizen not contractually obligated to engage in rescue operations, saw a drowning, he would be under no legal requirement to come to the aid of the victim.

This is the nub of the dispute. According to the Minnesota code, the observer must either rescue the victim or, at the very least, notify the authorities of the problem. But in the libertarian law code, one is bound only to refrain from the commission of aggression. In this philosophy, there are no positive responsibilities incumbent upon the moral agent apart from those he takes upon himself, through contractual agreement.

There is in libertarian circles a debate as to whether or not specific contractually obligated performance can be compelled. A promises to sing at B’s wedding for a fee; they sign a contract to that effect. At the last minute, A begs off. Certainly, according to one side of this argument, A should forfeit his fee. As well, his reputation will suffer. And, if he posted a performance bond, that, too, would go by the boards. But according to this view, A should not be dragged kicking and screaming to B’s wedding and forced under threat of violence to sing. In my view, though, there would be two types of contracts. One would specify that specific performance cannot be compelled, and the other that it can (presumably, the latter would pay more to the performer). If A were to renege, then he legally could be compelled to perform. This makes little sense, as a practical matter for wedding songs, but more for lifeguards at swimming pools. Suppose the following: C hires D to hold a rope for him; if D drops the rope, C will fall to his death. D decides to walk away from this contract and is willing to forfeit his fee. For some reason, only D can hold the rope. E, C’s friend, sees D about to drop the rope and threatens D that if he does so, E will shoot him. Justified? Yes, in my view.

We can perhaps judge between these polar opposite ethical world-views by considering two dimensions: the practical and the logical.

What pragmatic considerations militate against compulsory good Samaritanism? Given that the goal is to promote mutual aid between and amongst the members of our species, is legal coercion the best way, or even a reasonable means toward this end?

There is evidence that weighs in against such a hypothesis. First of all, the Genovese killing and the pool table rape are newsworthy precisely because it is so exceedingly rare for people to stand by and see their fellow creatures hard done by. For every such event there are literally hundreds if not thousands of cases where people pluck little girls out of the paths of onrushing trucks, rescue the elderly from burning buildings, beat the woods for lost children and extricate victims from mine cave-ins, ocean mishaps, etc., often at much expense, at great personal risk, and continued long past the time when the venture can be expected to be met with success. Statistical evidence of this claim—awards for acts of bravery and heroism, for example—is in great abundance.

And certainly none of this activity has been motivated by a fear of running afoul of the law. Heroic deeds of this sort have been taking place since the dawn of recorded history, and the Minnesota enactment was a relatively recent occurrence. More to the point, were this legislation copied elsewhere, and as diligently enforced as its adherents might wish, how many of these heroic rescuers might refrain from such activities? Motivations for holding back might include resentment that positive acts are now required by law. But it may also be prompted by a fear to become involved at all, even as a bystander: for the Minnesota law also provided the “victim” with a further avenue of relief, the right to launch a civil lawsuit against the “Bad Samaritan,” the person who could come to the rescue, or notify the authorities, but refuses to do so.

Another practical problem is that in many cases of distress (e.g., drowning), an actual rescue is the only response that will be of any help. By the time a witness can inform anyone else of the tragedy, the possibility of effecting aid may be long past. But the Minnesota law specifically exempted from culpability those who seek help from third parties instead of attempting an extrication of the sufferer. Presumably, it would not have been politically feasible to visit punishment on citizens unwilling to risk their own lives in Samaritan ventures. This halfway measure, then, falls short of compelling the only act that might be of sufficient help.

Even in the case where mere notification can be of some use (rape, robbery in process) there is a pragmatic difficulty. In order to give warning, the onlookers will often have to travel away from the scene of the crime (at least before the era of cell phones). If such a person is really unwilling to perform the required deed, it is easy for him to evade it under such circumstances, and difficult to prove otherwise.

But the impediments to this legislation run far deeper than mere practicality. There are also philosophical dilemmas.

As well, a quandary arises with regard to causal antecedents. In the cases of flood, fire, drowning, violence, etc., it is rather straightforward to identify the reason for the problem, and thus, at least in principle, to effect a rescue. But there are thousands of people who die, and are therefore ready from some form of deliverance for a would-be Good Samaritan, because of antecedents that are unclear, at least to some people.

Consider Ethiopian starvation, a problem much in the news during the years when the Minnesota law was touching off a flurry of Good Samaritan legislation. (We rule out of court that the Ethiopians are foreigners and therefore undeserving of “protection” under the Minnesota Good Samaritan law. For the underlying philosophy of this legislation is the Biblical exhortation that each of us act as if he were “his brother’s keeper.” Thus this enactment has application not only in one country, but throughout the world.) There are numerous hypotheses that have been attempted to explain this phenomenon: drought, civil war, imperialism, lack of foreign aid, socialism, capitalism, etc.

Suppose that a citizen of Minnesota were hauled into court under a statute similar to the one under discussion—that is, a Good Samaritan law which required not merely notification of the authorities but actual action to alleviate distress. Suppose he was charged under such a statute, either by the forces of law and order or, as provided, by a starving Ethiopian under the civil suit provisions. What kind of defense would be open to the Minnesotan?

He could reply that he had contributed to foreign aid to Ethiopia. But this justification could founder on at least two grounds. First, it might fail because foreign aid, far from being a solution to the problem of starvation, was actually a cause of it. Secondly, it might be unsuccessful in that ground although contributing to foreign aid was indeed the appropriate response, the defendant did not donate sufficient funds.

This leads to the question: How much effort must a Good Samaritan put out in order to save life?

The Minnesota law being discussed here is incomplete in the sense that it left open the question of how much “society,” or the “authorities,” are to do for the victim. If all that need be done is to notify the government of a needy person, and then the government can sit on its hands and do nothing, then the whole process is null and void.

So we ask again of this “brother’s keeper” philosophy: How much must the Good Samaritan do for others?

There are only two responses. All others are merely variants of one or the other. One possibility is that the Good Samaritan weighs the lives of all other people as on a par with his own. In this system, he will continue to give of himself and of his wealth until the problem is solved or his wealth is exhausted. In the Ethiopian case, this result ensues no matter what the cause of the starvation. If the famine there is due to lack of foreign aid (not bloody likely), the Good Samaritan must continue to donate until the problem is solved—or until he is no longer better off than they are. If the starvation is due to the lack of a free market in Ethiopia, the Good Samaritan must likewise keep donating to the cause—only this time it will be the cause of promoting the free enterprise system in Ethiopia—again until either the problem is solved, or his financial circumstances are no better than those of the Ethiopians. For at any less extreme point than this, say, after the Minnesotan has given away virtually all of his treasure, but still has about ten times as much as the Ethiopian, the problem will yet remain: the Ethiopian will still be starving, although perhaps to a lesser or slower degree, and the Minnesotan will still have the wherewithal necessary to save him. (How quickly does the victim need to be dying in order that the Minnesotan will not be considered guilty of violating the Good Samaritan law? We can, perhaps, rule out “dying of old age,” but what of cancer? What of cigarette smoking? Will the Minnesotan be guilty if he does not grab the cigarettes out of the hands of any smokers he comes across?)

The only real alternative is the polar opposite to “brother’s keeperism”: the complete renunciation of the Good Samaritan philosophy, and the embracing of the libertarian alternative of no positive obligation at all.

But we have not yet concluded the case against the Good Samaritan law. What other defense could be made by the Minnesotan charged with its violation? Suppose he claimed he was a research scientist, hurrying to his laboratory to find a cure for cancer, or for AIDS, or for the aging process. Suppose he claimed he engaged in recreation or spent his time in any other way, only in order to most efficiently pursue these ends? (After all, all work and no play, besides making Johnny a dull boy, interferes with the “creative juices.”) In either case, in this defense, he would have to concede that one person in trouble would have to make do without the good offices of the researcher. (Could this status as a researcher be self-definitional? Or would one need a Ph.D. in biochemistry from Harvard, or, failing that, from the University of Minnesota? If so, how would we deal with the undoubted fact that numerous and wondrous discoveries have been made in the basement laboratories of “unqualified” tinkerers?) But surely, it would be contended, more “Good Samaritan credits” should be garnered by a researcher who saves ten million lives in ten years than by one who helps to save one life today. What, in other words, is the proper discount rate for life saving?

This problem is, of course, as silly as it is intractable. It is impossible to determine any such proper rate of exchange between aiding the troubled in the present and doing so in the future. Any attempted solution to this problem is bound to founder on the question of interpersonal comparison of utilities—the fact that people disagree about what things are valuable and how valuable they are.

Will the defense be allowed to plead ignorance? It is well established that “ignorance of the law is no excuse,” but what about ignorance of suffering? In this modern era of TV news, it is exceedingly difficult to be unaware of the anguish that takes place around the world. Famines, avalanches, earthquakes, typhoons, mass murders, all too unfortunately, are the stuff of everyday news. In order to obviate such a defense, however, will the government of Minnesota have to launch a compulsory program of civics and current events education?

The Good Samaritan law adopted in Minnesota was arbitrary and capricious, and it leads down a slippery slope toward massive income redistribution of a kind that may not have been foreseen by its original adherents. The burden of proof would appear to lie with the proponents of any doctrine; yet no proof has as much as been offered for the contention which underlies this statute: the “brother’s keeper” argument. It is for all these reasons that the Bad Samaritan, the person who refuses to be stampeded into Good Samaritanism, must be applauded.