Funny that Scalia should bring up a hypothetical on libertarians not wanting to save someone....In Torts class, we have arrived at the sticky area of affirmative duty: what the law will require you to do for others. That may seem like nothing new. Laws always seem to be requiring us to do things like wearing seat belts and paying taxes. However, most laws require you NOT to do things to others, i.e. not to hit them, not to crash your car into them, not to trespass on their property...etc.
But should the law require you to rescue someone? Consider this hypothetical: you walk by a stranger who's passed out and lying face-down in a shallow pool of water. You could save him from suffocating if you just turn him over.
Traditional tort law would say you have no obligation to turn him. Libertarians would strongly agree; individual autonomy is of the utmost importance.
This rationale seems cold-hearted and even selfish that someone should die because a damn libertarian didn't want affirmative duties imposed on him.
But individual liberty has social worth. Once the state requires good acts, "it becomes impossible to tell where liberty ends and obligation begins." Add to that obligation the threat of imprisonment and the obligation starts sound less and less like good law.
The quotation above comes from the author of my Torts case book, a self-proclaimed libertarian, Richard Epstein, professor of law at the University of Chicago.
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