No Duty To Rescue Rule And Its Legal Foundations

There is no legal rule about duty to rescue in Chines legal system. Is it proper toset a rule to require citizen has a duty to rescue is the main problem to be solved in thispaper. Though introducing the general rule in American legal system with itsexceptions and the respect of individual rights and the independence of legal system,this paper end with a conclusion that the legal system should not set a duty to rescue.The first chapter introduces the no duty to rescue general rule with its exceptionsand its history and precedents. No duty to rescue starts from American Black Letterlaw and developed in the common law. Although no duty to rescue is still a generalrule but since last century，the legislators have made some changes to encouragecitizens to rescue others. Require medical persons to help others out of their duty, andmade Good Samaritan law to protect those people. But those reforms are not farenough and there is huge space for future reform.Second it introduces the exceptions including actor is but-for cause for the need torescue, special relationship, reliance, and statute. The group of actor is but-for causefor the need to rescue has two branches as: negligent injury by the defendant andinnocent injury by the defendant. Special relationship has categories: a relationshipbetween the rescuer and the rescue and a relationship between the rescuer and a thirdperson. Good Samaritan is also a very important rule.The second chapter use legal foundations and logic way to prove that no duty torescue is the proper choice and the law cannot force a duty to rescue. First, in early common law there are distinctions between acts of misfeasance and acts ofnonfeasance. Misfeasance makes the plaintiff positively worse off thereby creating anet injury. While it may result in the same physical injury, however, nonfeasance is theabsence of a positive benefit. The plaintiff is no better off but is likewise no worse off;no new injury has been caused. It is this distinction that is at the heart of theno-duty-to-rescue rule, and it is this distinction that courts and scholars relax whencreating exceptions to that rule. Second, from moral aspect, the boundary of law andmoral cannot be mixed and law should only be used to punish the serious damageaction. And normal immoral action should not control by law or will make the societyunstable. Third, from utilitarian theory if the freedom to act without restrictionpromotes general happiness, then the cost of a significant degree of obligation to actfor others would outweigh the benefits of rescue. Happiness as a constitutional right isthe most important right and can develop the society most. From another side, ifpotential victims came to rely on would-be rescuers, the victims might undertake moredangerous activities that reduce social utility by increasing costs. Fourth, Economictheory creates an model to prove no duty to rescue can reach the goal of maximizationof social utility. Fifth, introduce Locke’s Social Contract Theory and Heyman’sLiberal-Communitarian Theory.The last but the least part of the paper uses a right/duty paradigm of the duty torescue to prove the no duty to rescue is the proper choices. The key individual rightsconcept to grasp for the affirmative duty context is the maxim that rights cannotconflict; a right which to be exercised, must violate another right, is not truly a right.One’s rights can impose on another only the negative obligation not to violate thoserights. Consequently, rights to one’s body and property are not contingent upon theparticular interests or needs of others, and no obligation exists to confer a benefit onanyone else. Given the supremacy of individual rights, the proper government has onlyone purpose-the protection of individual rights. This principle of individual right isexemplified by a sentence: That to secure these rights, Governments are institutedamong Men, deriving their just powers from the consent of the governed. Agovernment has the ability to identity but not create rights, adjudicate among its citizens disputes concerning those rights. These considerations lead to the principle ofthe negative state: the State may act only when necessary to protect the individualrights of its citizens. Consequently, under a negative state, an individual is free toundertake any activity as long as it does not violate the rights of others. And finallythough logic analyze deny other opinions and come to the conclusion it should not set aduty to rescue.