救助义务的基础（英文）.pdf

47 Vand. L. Rev. 673 VanderbUt Law Review April, 1994 Steven J. Heyman Copyright (c) 1994 by the Vanderbilt Law Review, Vanderbilt University School of Law; Steven J. Heyman FOUNDATIONS OF THE DUTY TO RESCUE I. INTRODUCTION II. HISTORICAL FOUKDATIONS A. Misfeasance and Nonfeasance in Private Law B. The Public-Law Duty to Prevent Criminal Violence III. THEORETICAL FOUNDATIONS I: EARLY NATURAL RIGHT THEORY AND THE SOCIAL CONTRACT A. The Duty to Prevent Criminal Violence 1. The Public Duty 2. The Duty to Individuals B. The Duty to Prevent Noncriminal Harm 1. The Natural Duty of Individuals 2. The Responsibility of the State and Its Citizens a. The State’s Duty to Preserve the Lives of Its Members b. The Duty of Citizens i. The Public Duty ii. The Duty to Individuals C. The Duty to Rescue and the Liberal Tradition IV. THEORETICAL FOUNDATIONS II: FORMALISM AND LATER NATURAL RIGHT THEORY A. The Challenge of Formalism B. Hegels Philosophy of Right 1. Right 2. Morality 3. Community a. The Relationship Between Citizen and State b. The Bond Between Citizens 4. Conclusion C. Hegel and Formalism V. TOWARD A LIBERAL-COMMUNITARIAN THEORY OF THE DUTY TO RESCUE A. The Liberal-Communitarian Theory and Other Rationales for a Duty to Rescue B. The Contours of a Duty to Rescue 1. The General Duty 2. Special Relationships a. The Nature and Role of Special Relationships b. The Relation Between Special Duties and the General Duty to Rescue VI. CONCLUSION I. INTRODUCTION In 1908, James Barr Ames concluded his classic lecture on Law and Morals by posing the problem of a duty to rescue.1 Suppose, he said, that you are walking over a bridge when a man falls into the water and cries out for help. Do you have an obligation to save him from drowning by throwing a nearby rope? As the law then stood, the answer clearly was no. t4The law does not compel active benevolence between man and man. It is left to