A Lenten thought on good Samaritans


In an article published twenty-years ago, Christopher Wellman introduced legal philosophers to the idea that the duty to obey the law might be based on a duty to do one’s fair share in assisting others.  For reasons that puzzled me, Kit called these ‘Samaritan duties.’  The paper deserved and got lots of discussion, and ‘Samaritan duties’ entered the jurisprudential vocabulary.  I’ve heard someone say Catalans owe a ‘Samaritan duty’ not to seek independence from Spain (Catalonia being a more wealthy part of a less wealthy country), and last week a desperate unionist even told me that Scots now have a ‘Samaritan duty’ not to abandon the United Kingdom (Scotland being a relatively humane part of an increasingly inhumane country).

I admired Wellman’s article, and still do, though I think his argument mistaken.  (Admiring things one considers mistaken used to be normal amongst philosophers.)  But I never understood why Kit thought a duty of beneficence was particularly ‘Samaritan’.  I had one lawyerly worry and one philosophical worry.

Our legal systems have two mechanisms that push back against the selfishness they often aid and abet.  The first is the duty of (easy) rescue, more common in civilian systems than in common law.  The second is not a duty but an immunity.  ‘Good Samaritan statutes’ protect certain people from liability when their good-faith attempts to help others go wrong. A duty to help is different from a Samaritan immunity, though both can deflect tort liability.  So why didn’t Wellman just say his theory was based on a duty to rescue, or more generally on a duty of beneficence?  It was (to me) confusing.

More important than nomenclature, however, is the fact that the Samaritan story in Luke’s gospel (10:25) is not there to teach us to help others in need.  That principle was already entrenched in the Hebrew scriptures and would have been well known to the priest and the Levite who crossed the road to avoid the man robbed, stripped and left for dead.   Nothing in Luke’s story intimates that priests or Levites were devotees of Ayn Rand.  The theological point is that a body in that state could have been ritually unclean—a corpse–so  Jews would then face a conflict of duties: to get close up and help, and to stay away from what could be a dead body.    (Today we might think of American evangelicals who say they are to love all sinners, and also that America has a duty to keep out destitute migrants, who could be rapists and drug dealers.)

The duty to rescue is simply taken for granted by Luke. And not easy rescue:  the hated Samaritan goes far beyond that.  What then is the point?  Remember the context.  A lawyer (νομικός) is trying to trip up (ἐκπειράζων) Jesus, an illiterate peasant getting too big for his boots.  The lawyer asks what he should do to inherit eternal life, and Jesus returns with the question: What do the scriptures say?  The lawyer recites the answer they both know well.  It includes the duty to ‘love your neighbour as yourself.’ (Lev. 19:18) The crunch follows. The lawyer thinks he has now cornered Jesus and asks, ‘and who is my neighbour (τίς ἐστίν μου πλησίον)?  The tone of the question is: and exactly who is my neighbour?  Where exactly do we draw the line?  Jesus’ shocking, over-the-top, answer is absolutely anyone you can actually help, even an enemy, and even at very substantial cost to yourself.

There is something wonderfully anti-nominian in the parable.  Every lawyer knows tactical uses of the question ‘but where would we draw the line?’  But they do not always know that it demands different responses in different contexts.

In North America, we approach not only Lent but income tax season, in which those with resources pay lawyers and accountants get just as close as they can to the line between tax avoidance and tax evasion.  Maybe that is OK.  But in other contexts, our attitude to law’s lines should be: ‘stay well back!’  How do we draw the line between enhanced interrogation and torture, between persuasion and coercion, between misleading and outright fraud?  There is no good, general, answer.  But when we have the line, we should not be trying to get as close to it as we might get away with.

Law is filled with ‘line-drawing exercises’.  It is part of the law’s function to lay down lines in areas where, absent law, no lines exist.  We need lines for guidance, and sometimes for fairness.  But the Good Samaritan parable is mainly about the spirit in which we are to approach law’s lines.  If a ritual duty forbids touching what could be a corpse, the Samaritan duty tells us to push up hard against the artificial line dividing reasonable fear and opportunistic avoidance, even at significant cost to ourselves.

How do we distinguish lines that we may push up against from lines from which we should stay back?  I don’t know, and Luke gives us no help.  But it seems to me that when it comes to the destitute and despised, we do well to push up hard against whatever line suggests we may or should leave them to die by the roadside, or in the refugee camp.








The Refugee Crisis is not about Fairness

Governments have been shamed into addressing the refugee crisis in the Middle East and North Africa. The ugly idea that most Syrians, Eritreans or Afghans fleeing persecution and disaster are anything other than Conventional refugees is dissipating.

At the same time, another unhealthy idea emerges. It is the overweening concern with fairness. Not fairness towards refugees, but fairness among countries able to resettle them. It is a concern with who is doing more, or less, than their proper share as judged by some metric—by population, by GDP, by religious or ethnic makeup, or by geographical location. ‘Unfairness’ of that sort is the last thing we should be worrying about now.

Complaints of unfairness were first heard from front-line countries like Italy and Greece, and then Hungary, where the arbitrary fact of proximity to refugee-producing states was said to give them unfair burdens. The second wave of complaints held it unfair for Europe to shoulder a burden when rich countries in the Middle East—including Qatar, Saudi Arabia and the UAE—do so little. And now, perhaps most odious because it is the most trivial, Britain complains that, since it is not a member of the passport-free Schengen zone, it is unfair to expect it to help coordinate a resettlement scheme with other EU countries.

All of these complaints treat fulfilling one’s moral (and legal) duties as an unwelcome burden that is tolerable only if it is shared according to some comparative measure. The fairness-obsessive cares more about the relative burdens on rich countries than he does about the absolute burdens his inaction imposes on those fleeing persecution and destruction.

The resettlement of refugees is not a public good in the economists’ sense. It is not something like clean air, which requires the cooperation of many if it is to be produced at all, and not something like national security, which is open to all if it is provided for any.

Fairness does matter in addressing problems like that. For example, no one country or small group can halt destruction of the environment. Efforts short of a certain threshold are ineffective and pointless.  If a large group enters an effective treaty, then any other country can benefit without pitching in. To get around this we need to change the situation; but no one would agree on a mechanism to do that unless its terms were fair. For instance, no poor country would agree to accept perpetual poverty just because rich countries had already used up the allowable quota of fossil fuels.

Settling refugees is not like that. Any country can be effective on its own. If Canada had admitted Aylan Kurdi’s father (his aunt was already living in British Columbia), Aylan would be alive today. And in due course, his parents would be working, watching TV, buying food, paying taxes, and so on—in one of the richest and least populous countries in the world.   But wouldn’t that mean Canada had paid an unfair cost? If Canada resettled the Kurdis, the United States could have taken a free-ride on Canada’s generosity. And so it is with respect to all other refugees and all other countries.

But that is a repugnant way of looking at things. First, it is unclear that there are long-run costs to resettling refugees. New residents who are eager, ambitious and grateful to be here are an asset, not a liability. Second, even with respect to short-run adjudication and settlement costs, the relative burdens among countries are unimportant. What matters is the absolute ability of any country to assist. It is relevant that Greek government is in such a parlous state that it cannot cope with the influx. Greece can hardly cope with anything. But it is not relevant that the Hungarian government is in a weaker fiscal position than the German government. It matters whether a country is able to take refugees; it does not matter whether other countries that are equally or more able are doing as much.

Consider an analogy. Any swimmer able to help has a moral duty to save a drowning child. He may not look around the pool to see whether the rescue would be less of a hassle to someone else, and he may not let one child drown on the ground that he already saved one yesterday. If he can effectively help, he must.

Coordination among refugee-accepting countries is often required—but by effectiveness, not fairness. What matters is getting refugees settled, not how the costs of doing so are distributed (except, of course, where that is instrumental to getting more people resettled quickly).

According to the Dublin Regulation, refugees arriving in Europe must claim asylum in the member state in which they first land. The idea is to provide a determinate adjudication of their claims, and to ensure that applicants are not passed around among states. (There is always one ‘first state’.) But the fundamental duty to address an asylum request rests with any state to which it is submitted. If another state is already adjudicating it, that relieves others of the duty. But they cannot otherwise shirk by pointing out, even correctly, that another state would be less burdened by adjudicating, or that, if they wait, someone else will do it instead.

Waiting for a ‘fair’ distribution of the burdens of resettling refugees is immoral. Those able to act must do so, without regard to what others are doing save where coordination is needed—and they must do so now.