Ibrahim Gamal Wagdy

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

duty to rescue at the international level needs a huge reform.

No one disagrees with the fact that rescuing others is a moral duty. It is

considered, by all means, an important aspect for the maintenance of security. I

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

hinder this improvement. Although this enforcement is difficult, it is not impossible.

What is impossible and unacceptable is to watch somebody being killed in front of

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

its duty which is achieving justice.

 The most important argument of the opponents of a duty to rescue is the

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.

Definitely, the individualists strongly disagree with a duty to rescue. They

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

individual liberties by law comes after the consent of people. Nevertheless, it is a

different way of consent that comes through the people's representatives in a

democratically elected parliament. So, the two cases are the same and the difference is

in the way of obtaining the consent. Furthermore, in a class discussion we came to

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

security because it improves their ability to take precautions against potential

Palestinian attacks. Bearing in mind that there is no liberty without security, one can

understand that the Israeli law is both individualist and social.

The main argument presented in Seinfeld's final episode is how applying a

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

episode a C for comedy and an F for jurisprudence."4

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