Altruism and the Criminal Law: Duties of Rescue and Tolerance

Is altruism compatible with the spirit of criminal law? The English understanding, traceable to Macaulay and Stephen and sustained by the widely accepted Hobbesian concept of negative liberty, holds that it is not. According to this view, criminalising failures to act would impose an alien form of solidarity upon a legal tradition in which the prohibition of harm is the main driver. This presentation challenges this view on two fronts.
The first concerns the duty of easy rescue, a concept well spread in the continental tradition. This duty arises when a person has the ability to prevent serious harm to another person at little or no cost to themselves. The main question is whether there is a principled basis for making failure to do so a criminal offence. We argue that simply discarding this duty is misguided and that the philosophical basis for the opposite conclusion, as evidenced in several works from the 18th and 19th centuries and in the structure of continental criminal codes, is stronger than the common law tradition acknowledges. When understood properly, the duty is not a demand for heroism, but rather a rational expression of the social bond that underlies all legal systems.
The second front concerns the so-called duty of tolerance — the obligation to yield one's rights or property when it is essential to avert serious harm to another person. Necessity cases reveal that altruistic obligations in the negative form are deeply embedded in both common and civil law systems, operating alongside and structurally parallel to the duty to rescue. This is far from being a marginal doctrine.
Together, these two duties imply that criminal responsibility cannot be based solely on the principle of neminem laedere. Every legal system, including common law systems, demands more of its citizens than merely avoiding harm. The question is not whether altruism has a place in criminal law, but how its limits should be defined.
 

Andrew Ashworth (Author), Juan Ignacio Piña Rochefort (Author), Altruism and the Criminal Law: Duties of Rescue and Tolerance (Hart Publishing, 2025)