LARRY ALEXANDER

AFFIRMATIVE DUTIES AND THE LIMITS OF SELF-SACRIFICE

ABSTRACT. American criminal law reflects the absence of any general duty of Good Samaritanism. Nonetheless, there are some circumstances in which it imposes affirmative duties to aid others. In those circumstances, however, the duty to aid is canceled whenever aiding subjects the actor to a certain level of risk or sacrifice, a level that can be less than the risk or sacrifice faced by the beneficiary if not aided. In this article, I demonstrate that this approach to limiting affirmative duties to aid encounters the same problem of moral arbitrariness as does a "moral catastrophe" override of deontological side-constraints.

Our general attitude about affirmative duties - duties to come to the aid of others - is reflected in our law. First, we believe that the occasions for imposing affirmative duties are more limited than the occasions for imposing negative duties. We always act subject to negative duties regarding others' lives, bodies, and property. On the other hand, our affirmative duties to aid others arise only in extraordinary circumstances. In the criminal law, we have affirmative duties to aid others only when others are our legal dependents, when we have contracted to aid them, when we have caused the peril from which we must rescue them, or when we have a special duty such as serving in the armed forces or on juries.1 And even most proponents of affirmative moral duties would not make such duties as extensive as negative duties, so that a negative duty not to deprive someone of $10,000 was paralleled by an affirmative duty to benefit him by that amount, or a duty not to take another's healthy kidney was paralleled by an affirmative duty to donate one's own healthy kidney to replace another's failing one.

Related to this first limit on the occasions for imposing affirmative duties is a limit on their strength. Affirmative duties may be more easily overridden than comparable negative ones. One may have to undergo some high degree of risk to one-self to avoid imposing a

I See Joshua Dressier, Understanding Criminal Law (New York: Matthew Bender & Co., 1987), pp. 82-84.

Law andPhilosophy 15: 65-74, 1996. (~) 1996 Kluwer Academic Publishers. Printed in the Netherlands.

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slightly higher risk on others. On the other hand, if discharging an affirmative duty is risky, the law views the duty as cancelled by the actor's concern for his own well-being, even if the risk to the actor is far less than the risk faced by the beneficiary of the potential affirmative duty? Thus, although A may have to risk a 25% chance of drowning to avoid capsizing B's boat and subjecting B to a 75% risk of drowning, if B's boat does capsize, A may not have to take a 25% risk of drowning to save B, even if A does have an affirmative duty to take some lesser risk (say, because A's boat caused B's to capsize).

One way of characterizing this asymmetry between negative and affirmative duties is to say that negative duties view each person's interests impartially whereas affirmative duties weigh the actor's interests more heavily than the beneficiary's.

Can this asymmetry be justified? Put differently, is there any theoretically defensible position intermediate between symmetrical negative and affirmative duties and the complete absence of affirma- tive duties?

I should point out that this problem arises in two types of moral theories. First, it arises in those deontological theories like Nozick's that view persons as morally inviolable and protected by various side-constraints on others' actions, but in which the side-constraints are not absolute. 3 According to such theories, persons cannot be sacrificed without their consent to benefit others, even if the benefit to others is greater than the sacrifice imposed. This also means that persons cannot be subject to an enforceable affirmative duty to self- sacrifice to aid others, since enforcing such a duty would be equiva- lent to sacrificing them involuntarily for others' benefit. Nonetheless, these deontological theories recognize a limit on the stringency of these side-constraints. Thus, if the benefits to others become suffi- ciently greater- say, averting a "moral catastrophe" - these theories permit sacrificing some to produce these large benefits. 4

2 See Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law, Vol. 1 (St. Paul: West Publishing Co., 1986), p. 292; State v. Walden, 306 N.C. 466,293 S.E. 2d 780 (1982).

3 See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 32-33.

4 Ibid., at p. 30n.

AFFIRMATIVE DUTIES AND THE LIMITS OF SELF-SACRIFICE 67

The problem of asymmetry also arises in those deontological theories that view side-constraints as absolutely inviolable. For even in those theories, one may have an enforceable duty to sacrifice oneself for another's benefit under certain conditions. Our criminal law, for example, is consistent with stringent deontological side- constraints. One has a duty to aid others that is backed by a criminal sanction only if one has undertaken it by, for example, marrying, having children, contracting to serve as a police officer, fire fighter, lifeguard, and so forth, so altematively if one has created the condi- tion of risk that the affirmative duty is supposed to relieve. 5 All of these occasions for imposing enforceable affirmative duties - with perhaps the exception of some cases of parenthood - are consistent with inviolable deontological side-constraints. For in all of them, the affirmative duty arises only because one has voluntarily waived the deontological side-constraint or because one has violated or risks violating another's side-constraint.

In all of these latter cases of enforceable affirmative duties, just as with the "moral catastrophe" override of deontological side- constraints, there is an asymmetry between how the beneficiary's (of the duty) interests are weighed vis-/~-vis the interests of the one subject to the duty. To take an example that is representative of all affirmative duties of this type, a parent but not a stranger has a duty imposed by the criminal law to rescue her child from drowning in a swimming pool, but only i f she can do so with little risk to her own safety. 6 She does not have to undertake a risk equal to that of her child if she does not act. She does not have to minimize the sum of her and her child's r i s k s . 7 The affirmative duty imposed upon her is canceled, at least for purposes of the criminal law, at a point that can be lower than the risk faced by her child and lower than the point

5 See Dressier, op. cit., pp. 82-83. 6 See note 2.

7 If she faced a personal risk so high as to exceed the level at which the sum of her and her chi ld 's risks were minimized, she would be justified in not rescuing even assuming her interests are given no more weight than those of her child.

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at which the joint risk is minimized. 8 Thus, for these purposes, the actor's interests count for more than the beneficiary's.

Now Anthony Ellis has recently demonstrated that any moral catastrophe trigger of enforceable affirmative duties to aid must be morally arbitrary. 9 Ellis approaches the issue from the standpoint of someone who wishes to violate a deontological side-constraint and sacrifice one person to save others. If the side-constraint prevents him from sacrificing one person to save one person, but does not prevent him from sacrificing one person to save 400 persons, then the cutoff point, which is less than 400 but greater than one, will be arbitrary. That is so because the interests at stake beyond the cutoff point are supposed to justify sacrificing the person protected by the side-constraint and thus must be in some way commensurable with the interests protected by the side-constraint. Yet if these interests are commensurable, what justifies the choice of any particular number of lives greater than one as the number of lives that must be saved to override the side-constraint on taking one? ~°

Ellis's argument about the arbitrariness of the threshold persists if we now switch to the point of view of the one ordinarily protected by the side-constraint, who is the one on whom an affirmative duty to sacrifice is imposed once the threshold level of benefits is reached. If he has no affirmative duty to allow himself to be sacrificed to save, say, two persons, why must he do so to save some number greater than two?~

s Although the risk the actor faces might be sufficient to cancel her affirmative duty to rescue, it does not cancel liability based on breach of a negative duty not to harm if breach of such a duty is what caused the victim's peril. Thus, one who negligently knocks another into the water is liable for a knowing homicide (murder) if she knowingly fails to attempt to rescue. If, however, the duty to rescue is canceled because the rescue would be risky, and she is thus not liable for murder, she still may be liable for negligent homicide based upon her prior negligent act.

9 Anthony Ellis, "Deontology, Incommensurability and the Arbitrary," Philos- ophy and Phenomenological Research 52 (1992).

10 Ibid., at pp. 860-64. 11 Although I shall not argue for it here, I believe it can be demonstrated that

if it is morally justifiable to sacrifice one person to save more than one, it would not be morally justifiable for that person to resist being sacrificed, which in turn entails a moral duty on that person to submit to being sacrificed. See Larry A. Alexander, "Scheffler on the Independence of Agent-centred Prerogatives from Agent-centred Restrictions," The Journal of Philosophy 84 (1987).

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Ellis's argument is directed~ at deontologists who accept side- constraints on the pursuit of good consequences but who do not regard those side-constraints as absolutely inviolable. The same type of argument, however, can be applied to a deontological position that takes side-constraints to be absolute. Or, more precisely, it can be applied to the affirmative duties that are consistent with absolute side- constraints - side-constraints not subject to a "moral catastrophe" override - so long as the affirmative duties require the actor to sacrifice fewer of his own interests or to take a lower level of risk than the interests/risks faced by those he has a duty to aid.

Thus, suppose that on such an account a parent must risk a 1% chance of drowning to save her child from certain death, but that she need not risk a 33% chance of drowning, even if doing so results in a lower joint risk to her and her child than not acting. Then somewhere between 1% and 33% is the cutoffpoint at which the affirmative duty to rescue disappears. The problem raised by an Ellis-type argument is whether and how such a cutoff point can be justified.

As I see it, the following two strategies are available to one who wishes to defend the approach to affirmative duties reflected in current law, namely, that affirmative duties do not require more than a certain level of sacrifice or risk be taken, even if a higher level of sacrifice or risk would be consequentially justified. First, one might argue that the sacrifice/risk that the affirmative duty bearer must accept - S/RD - varies with the risks and interests of the beneficiaries that are at stake - S/RB - but that the former is always lower than the latter. I shall label this the asymmetric covariation strategy.

Second, one might argue that the level of S/RD at which affirma- tive duties are canceled is an absolute level and does not vary with the S/RB. I shall label this the invariant cap strategy.

(One might also combine these strategies and argue that below a threshold of S/RD, the level of S/RD at which affirmative duties are canceled varies with S/RB, but all affirmative duties are canceled if the S/RD exceeds the threshold, no matter what the S/RB. This capped asymmetric covariation strategy is subject to all the objec- tions to the first two strategies and will not be discussed further.)

The asymmetric covariation strategy must justify the ratio between S/RD and S/RB. To return to the example of a parent who must

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undertake a risk to save her child from drowning, the asymmetric covariation strategy might posit something like this: a parent must affirmatively act to save her child from drowning as long as the risk (of drowning) facing the parent in acting does not exceed, say, 50% of the risk facing the child (of drowning) if the parent does not act. (The asymmetric covariation strategy would make a similar claim about the interests at stake, namely, that the parent in acting need only sacrifice up to 50% of the sacrifice, however measured, that her child faces if she does not act.)

Now how would the asymmetric covariation strategy justify this figure of 50% (or whatever other figure between 0 and 1 that it posits)? Why not 51% or 49%? If there is a duty to undertake a risk of 50%, what explains the absence of a duty to undertake a risk of 50.01%? As Ellis argues in the context of the moral catastrophe over- ride of side-constraints, the interests of the parent and child are either commensurable or incommensurable. If they are incommensurable, then how does one explain their co-variation? If they are commensu- rable, as they surely appear to be on the co-variation strategy under consideration here, then what explains their particular asymmetry, their giving the parent's interests twice the weight of her child's? Why are the parent's interests not given 2.1 times the weight, or 1.9 times the weight? The location of the point anywhere between 0 and 1 looks arbitrary, and moral distinctions cannot be arbitrary.

Things might appear more promising for the second strategy, the invariant cap approach. An example of such an approach would be one that lists a schedule of the maximum sacrifices and risks that can be required of any affirmative duty bearer. The list might tell us that no one, not even a parent, has an affirmative duty to save another if the risk of dying from undertaking that duty exceed 1%. Because this 1% figure does not vary with the risks, interests, or number of potential beneficiaries of the affirmative duty, this strategy appears to avoid the problem of explaining why the interests of the duty bearer and her beneficiary have a particular asymmetric relation. Instead, the second strategy's focus is entirely on the duty bearer and is oblivious to the beneficiary.

Nevertheless, the invariant cap strategy faces its own problem of arbitrariness. For how can it justify the cap it chooses? Why a 1%

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risk of death and not a 1.1% or 0.9% risk? What kind of theory could justify the particular location of such a cap?

One might offer the following rejoinder here. It is surely unfair to ask anyone to sacrifice or risk more than a certain amount, no matter what is at stake. On the other hand, it is surely not unfair to ask people to make small sacrifices or undertake small risks for others' benefit, at least under the conditions giving rise to affirmative duties. Our inability to fix the cap on S/RD precisely is no more damaging to this strategy than is our inability to fix the precise number of hairs at which one becomes bald.

To see why this rejoinder fails, consider whether the invariant capped strategy is applicable to negative duties as well as affirmative duties. If it is, then we may violate negative duties not to harm others whenever the S/RD we face if we do not do so is greater than a certain amount.

Suppose this amount is the same as it is for affirmative duties. Then if a parent need not attempt to save her child from drowning if the risk of drowning to the parent exceeds, say, 25%, the parent would also be entitled to grab a life preserver from her child, even if that meant certain death for the child, if the parent had less than a 75% of surviving without it.

I doubt if anyone would argue for such a result, at least as a matter of moral entitlement. That is, although we may be prone to excuse those who harm others because of the S/RD they face if they do not do so, we will not claim that they were just i f ied in so harming them - unless, of course, their act was calculated to produce the best consequences after weighing their interests and their victim's interest equally.

Because we are interested in moral justification rather than excuses for morally unjustified acts and failures to act, the invariant capped strategy is inapplicable to negative duties. If it is applicable to affir- mative duties, we end up with the following asymmetry: one cannot justifiably harm another to avoid a lesser sacrifice/risk to oneself, but one can justifiably refuse to aid another to avoid a lesser sac- rifice/risk to oneself so long as the sacrifice/risk is above the cap amount. Our parent may not take the life preserver from her child to improve her own chances of survival, but she may refuse to give her

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own life preserver to the child if doing so would increase her risk above the cap amount.

What, however, justifies the particular cap amount? It is here that the strategy falls prey to an Ellis-type argument. Recall that we are considering a rejoinder that posits that it is unfair to require people to undertake sacrifice/risk beyond a certain level, but that it is too much to expect a moral theory to explain what that level is precisely and why. In considering this rejoinder, however, we have concluded that it applies only to affirmative duties and not to negative ones. Yet the interests at stake in both affirmative and negative duty cases are those of the duty bearer. These interests would surely appear to be commensurable. A position that denies the existence of any affir- mative duties might admit the commensurability of the sacrifice/risk faced by actors in all cases and explain the absence of affirmative duties on other grounds, such as the absence of any responsibility of the actor for the victim's plight. But the position we are considering assumes that in the situations where affirmative duties exist, the actor is indeed morally responsible for the victim's plight. (In some cases, such as those in which the risk faced by the victim was created by the bearer of the affirmative duty, the responsibility is causal as well as moral.) Therefore, the position we are considering must explain and justify why, when the actor is responsible for the victim's plight, the actor's interests are weighed more heavily in some cases (affirmative duties) than in others (negative duties).

The problem for the invariant capped strategy then boils down to this. Whatever cap on the required level of sacrifice/risk, we need a theory that explains why that particular cap and not one a little higher or lower, and that also explains the absence of that cap in cases of negative duties.

Finally, can either the asymmetric covariation strategy or the invariant cap strategy deflect the claim of arbitrariness by analo- gizing the choice of ratio of S/RD to S/RB or cap on S/RD to the application of vague predicates such as "bald" or "orange"? In other words, if the Sorites problem does not haunt the application of the latter concepts, why should it haunt setting a limit on S/RD that cancels affirmative duties?

Ellis deals with an analogous objection to his arbitrariness cri- tique of the moral catastrophe override of side-constraints, and what

AFFIRMATIVE DUTIES AND THE LIMITS OF SELF-SACRIFICE 73

he says in that context is directly applicable to the context I am considering. 12 The objection he considers goes like this: We cannot identify the precise number of lives the saving of which will override the side-constraint on taking a life, but we know it is more than one and less than, say, 400,just as we know that baldness lies somewhere between Michael Jordan and Fabio, or that orange lies somewhere between scarlet and lemon. Therefore, even if we cannot say with certainly exactly how many lives must be saved to justify taking a life, we can say that 400 is enough and one is too few.

Ellis responds:

Take an analogy. There is no precise cutoff between, say, red and orange, and if we wanted one we should have to specify it arbitrarily. But we could not put it just anywhere within the colour spectrum. We should be faced with specifying an arbitrary point, but within a non-arbitrary range. That is not what we are faced with in morality. Specifying a range where the transition from wrong to right takes place would be no less arbitrary than would be specifying a precise cutoff. And if, to make the analogy with the transition from red to orange yet closer, it was said that the limits of the range are somewhat vague, this would still leave the position unaltered. The concession that the range is a vague range makes it no less arbitrary.

The disanalogy here is worth pursuing. In the transition from red to orange we find a range of cases about which we are unsure (itself a vague range) and ranges of cases (vague again) about which we are quite sure. Now those ranges are given by a deep and wide agreement in judgements, and that agreement settles any questions that might arise about the proper description of any point on that part of the colour spectrum. It could not be like this in morality. It is not just that we do not find agreement in judgements here. (Though we don't, and this is to be expected on my account.) If that were all that it is, then we could simply conclude that, where there is not such agreement, the matter is indeterminate, not yet decided. The problem is that in morality such judgements cannot be settled by group agreement, for the simple reason that it has to be possible for the agent to assess the morality of the group to which he belongs - and at the deepest level. So, even if there were agreement in judgement about our example, that could not settle the matter in the way that it settles questions about classifications of color. Suppose that everyone did in fact agree, on the number 50 say, but no-one could give any reason why it should be 50 and not some other number. This would not tell us anything about moral theory; it would simply be an utterly bizarre mystery. And if we found agreement on a vague range - again with no-one able to give any reason to justify this range rather than some other - then this might be less dramatic but it would be just as mysterious. It would be senseless to think that this agreement could make any contribution to settling the moral question. All that could do that would be some good reason why the vague boundary between right

12 Ellis, op. cit., pp. 866-70.

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and wrong occurs here rather than somewhere else. A n d . . . in the sort of case we are concerned with no such reason will be available. 13

I conclude that the approach to affirmative duties reflected in our law is subject to the same objections that Ellis has levels against moral catastrophe overrides of deontological side-constraints. And that should not be surprising. Any argument for a moral catastrophe override of deontoIogical side-constraints just is an argument for an affirmative duty to benefit others where the ratio of S/RB to S/RD is greater than 1 and less than infinity. For if A is morally justified in overriding a side-constraint and sacrificing B to save, say, 400, that is equivalent to saying that B is not morally justified in resisting being sacrificed to save the 400. And if B may not resist being sacrificed for the benefit of the 400, it is difficult to see why B cannot be said to have a duty to submit to being sacrificed, which is essentially the same as a duty to sacrifice himself. 14 T h u s , beginning with a moral catastrophe override, we arrive at an affirmative duty like those reflected in the law - an affirmative duty triggered by interests that are commensurable with those of the duty bearer but which are mysteriously given less weight. If Ellis has produced a knockdown argument for the arbitrariness of moral catastrophe overrides of deontological side-constraints, then he has produced a knockdown argument for the arbitrariness of the limitations on sacrifice and risk that accompany the affirmative duties imposed by our legal system.

School of Law, University of San Diego, San Diego, California 92110, U.S.A.

13 Ibid., at pp. 869-70 (footnote omitted). 14 See Alexander, op. cit.