The case for good Samaritan laws

Because of the individualism pervading Anglo-American law, it has generally refused to criminalize failures to aid strangers, even when the aid would be risk-free and life-saving. Historically, the law has been seen largely as an instrument for punishing intentional and negligent harms and violations of contracts, but not as a means for encouraging rescues rooted basically in need. While judges and legislators have regarded failures to prevent grave physical harm to strangers as callous and morally objectionable, they have generally refused to criminalize those failures, largely out of a concern for individual freedom.

This work evaluates the arguments against (minimal) good Samaritan laws, examines some arguments for what might be called extensive duties of rescue, and ultimately defends good Samaritan laws. The defense of the laws is based on the moral and social importance of preventing grave physical harm to others at little or no risk and cost. I shall argue that a concern for the prevention of harm must be balanced by a concern for individual liberty and autonomy. On the basis of that balance I shall try to defend good Samaritan laws, oppose the extensive duties of rescue defended by some utilitarians and others, and argue for a highly limited principle of legal paternalism, which will be sensitive to both personal freedom and the prevention of harm.

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