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Crime, Punishment, and ResponsibilityThe Jurisprudence of Antony Duff$
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Rowan Cruft, Matthew H. Kramer, and Mark R. Reiff

Print publication date: 2011

Print ISBN-13: 9780199592814

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199592814.001.0001

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Criminalizing Failure to Rescue: A Matter of ‘Solidarity’ or Altruism?

Criminalizing Failure to Rescue: A Matter of ‘Solidarity’ or Altruism?

Chapter:
(p.241) 14 Criminalizing Failure to Rescue: A Matter of ‘Solidarity’ or Altruism?
Source:
Crime, Punishment, and Responsibility
Author(s):

Andreas von Hirsch

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199592814.003.0014

Should it be a crime to fail to rescue someone in immediate danger, if one can do so without substantial risk to oneself? Whilst English law has refused to impose such liability, Germany (and several other European countries) do impose it. Much of the debate over duty-to-rescue concerned practical matters of implementation, such as whether the duty would burden citizens' everyday living routines unduly. However, there are also interesting questions of criminalisation theory, and these are addreses in this chapter. The resource or interest which a duty-of-rescue requirement protects falls under the Harm Principle: in this case, protection of the endangered person from physical injury. The problem, however, is not the harm element in itself, but imputing the harm to someone who has not placed the victim at risk, but merely failed to extricate him. German scholarly commentators have characterised the duty of rescue as resting on a notion of solidarity among citizens. The chapter addresses three possible accounts of solidarity, to wit: contractualist solidarity, communitarian solidarity, and altruism. It argues that the first two accounts are not helpful for present purposes because they fail to identify the character of the wrong involved in a refusal to rescue. It then argues why the third account, concerning altruism, is potentially more helpful, drawing upon the conception of altruism developed by Thomas Nagel.

Keywords:   criminalisation, harm principle, duty of rescue, solidarity, contractualism, communitarianism, altruism, resentment, virtue ethics, Thomas Nagel

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