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Tocqueville's Models of Law, Religion, and Democracy in America: Virtue, Interest, and the Duty to Rescue

Published online by Cambridge University Press:  03 February 2016

James E. Lennertz
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Extract

Two thousand years ago a Jewish lawyer demanded a definition of the term “neighbor.” … Whether the tale of the Samaritan answered his perplexities we cannot say. But he would surely have been astonished had he been informed that there were two answers to his question, one if he was asking as a lawyer, another if he was asking as a layman. To him, neighbor was neighbor and duty, duty. Perhaps this ancient lawyer's tale has a moral for law and lawyers today.

If you are not under a duty to “fease,” then nonfeasance can never be held actionable. But if you do engage in feasance toward somebody, then under most circumstances you must “fease” carefully. Moral: Don't ever “fease” unless you have to!

This essay explores the relationships among law, morality, and democracy in the American system as expressed in the development of tort rules regarding the duty to rescue someone in peril. The formative period of this legal development occurred during the period of industrialization and urbanization in America, in particular during the period between the Civil War and World War I. Religious developments in this era were principally expressed in the emergence of what came to be known as the “Social Gospel.”

Type
Articles
Information
Journal of Law and Religion , Volume 2 , Issue 1 , 1984 , pp. 69 - 84
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1984

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References

1. Honore, , Law, Morals and Rescue, in The Good Samaritan and the Law, 225, 242 (Ratcliffe, J. ed. 1966)Google Scholar. “A man was going down from Jerusalem to Jericho, and he fell among robbers, who stripped him and beat him, and departed, leaving him half dead. Now by chance a priest was going down that road; and when he saw him he passed by on the other side. So likewise a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he journeyed, came to where he was; and when he saw him, he had compassion, and went to him and bound up his wounds, pouring on oil and wine; then he set him on his own beast and brought him to an inn, and took care of him. And the next day he took out two denarii and gave them to the innkeeper, saying, ‘Take care of him; and whatever more you spend, I will repay you when I come back.’ Which of these three, do you think, proved neighbor to the man who fell among the robbers? He said, ‘The one who showed mercy on him.’ And Jesus said to him, ‘Go and do likewise.’” Luke 10:30-37, The Bible (Revised Standard Version).

2. C. Gregory, The Good Samaritan and the Bad: The Anglo-American Law in The Good Samaritan, supra note 1, 23 at 28.

3. Hopkins, C., The Rise of the Social Gospel in American Protestantism 1865–1915 (1940)Google Scholar.

4. de Tocqueville, A., Democracy in America (1961)Google Scholar.

5. Id., Vol. I, at 362.

6. Id, Vol. II, at 145.

7. “It must be acknowledged that equality, which brings great benefits into the world, nevertheless suggests to men … some very dangerous propensities …. The greatest advantage of religion is to inspire diametrically contrary principles …. Religious nations are therefore naturally strong on the very point on which democratic nations are weak; …” “The chief concern of religions is to purify, to regulate, and to restrain the excessive and exclusive taste for well-being which men feel at periods of equality;…” Id., Vol. II, at 25, 30.

8. “In the United States religion exercises but little influence upon the laws, and upon the details of public opinion; but it directs the manners of the community, and by regulating domestic life, it regulates the State.” Id., Vol. I, at 360.

9. Id., Vol. I, at 365-367.

10. “[E]very principle of the moral world is fixed and determinate, although the political world is abandoned to the debates and the experiments of men. Thus the human mind is never left to wander across a boundless field; and, whatever may be its pretensions, it is checked from time to time by barriers which it cannot surmount. Before it can perpetrate innovation, certain primal and immutable principles are laid down, and the boldest conceptions of human device are subjected to certain forms which retard and stop their completion.” Id., Vol. I, at 361.

11. “[I]f [religion] attempted to wean men entirely from the contemplation of the good things of this world, in order to devote their faculties exclusively to the thought of another, it may be forseen that the soul would at length escape from its grasp, to plunge into the exclusive enjoyment of present and material pleasures …. The more the conditions of men are equalized and assimilated to each other, the more important is it for religions, whilst they carefully abstain from the daily turmoil of secular affairs, not needlessly to run counter to the ideas which generally prevail, and the permanent interests which exist in the mass of the people. For as public opinion grows to be more and more evidently the first and most irresistible of existing powers, the religious principle has no external support strong enough to enable it long to resist its attacks.” Id., Vol. II, at 30.

12. Id., Vol. II, at 30.

13. Id, Vol. I, at 322.

14. “When the American people is intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts, their superstitious attachment to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.” Id., Vol. I, at 328.

15. Id., Vol. I, at 331.

16. “Egotism blights the germ of all virtue: individualism, at first, only saps the virtues of public life; but, in the long run, it attacks and destroys all others, and is at length absorbed in downright egotism. Egotism is a vice as old as the world, which does not belong to one form of society more than to another: individualism is of democratic origin, and it threatens to spread in the same ratio as the equality of conditions.” Id., Vol. II, at 118-119.

17. Id., Vol. II, at 147. See also The Federalist, especially the Federalist NO. 10 (J. Madison).

18. “After the idea of virtue, I know no higher principle than that of right; or to speak more accurately, these two ideas are commingled in one. The idea of right is simply that of virtue introduced into the political world.” Tocqueville, supra note 4, Vol. I, at 285.

19. Id., Vol. II, at 147-148.

20. This author has not found any explicit consideration by the social gospel writers of the responsibility to rescue.

21. Hopkins, supra note 3, at 189. The Social Gospel in America, 1870–1920 (Handy, R. T. ed. 1966)Google Scholar.

22. Hopkins, supra note 3, at 291.

23. “But even as a standard to guide our moral intelligence the Golden Rule is really not adequate for our needs. It is a wonderfully practical guide in all simple, personal relations. It appeals to our imagination to put ourselves in the other man's place and thus discover how we ought to treat him. It turns the flank of our selfishness, and compels that highly developed instinct in us to put itself into the service of love. Like the span measure of our right hand we can carry this rule about with us wherever we go, but it is hardly long enough to survey and lay out the building site of the New Jerusalem. Jesus probably did not intend it for more than an elementary method of figuring our duty.” Rauschenbush, W., Christianizing the Social Order at 45–46 (1914)Google Scholar.

24. “In reality the relations of men in society are not contractual, but ‘vital and organic’ We are members of one another. No man lives or dies or attains happiness apart from his fellow man. The organic view held not only for the relations of individuals, but also for social institutions and events.” Hopkins, supra footnote 3, at 125-126.

25. Id., at 109-110. Rauschenbusch, supra note 23.

26. Hopkins, supra footnote 3, at 161, 189, 193.

27. “Probably no phase of the law more closely reflects the mores of the day, as well as life in action, than tort law. Its study is a study of man, of his relationship to his fellow man, and of the passions that motivate life. It is life in reality, not as portrayed by a drama or a novel. It is a catalogue of the complexities of life and of the resolution of the complexities encountered by the free and lawful man, liber et legalis homo.” Dooley, J., Modern Tort Law: Liability and Litigation, Vol. I, 5 (1982)Google Scholar.

28. Barger v. Barringer, 151 N.C. 433, 66 S.E. 439 (1909).

29. Union Pac. R.R. Co. v. Cappier, 66 Kan. 649, 72 P. 281 (1903). “The defendants are not liable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved. Suppose A., standing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child's injury, or indictable under the statute for its death.” Buch v. Amory Mfg. Co., 69 N.H. 257, 44 A. 809, 810 (1898).

30. Tonawanda R.R. Co. v. Munger, 49 Am. 12 239, 246 (N.Y., 1848)Google Scholar. “Negligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and where it has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term.”

31. Powers v. Mass. Homeopathic Hosp., 109 F. 294, 303 (1901).

32. Louisville & N.R. Co. v. Scruggs & Echols, 161 Ala. 97, 49 So. 399 (1909).

33. Osterlind v. Hill, 263 Mass. 160, 160 N.E. 301, 302 (1928).

34. “[I]t is clear at common law that nobody has to lift a finger—let alone spend a dime and dial a phone number or actually render aid—to help a stranger in peril or distress. I say ‘stranger’ because there are relationships which require people to help others or avert danger toward them.” Gregory, supra footnote 2, at 24.

35. Sidwell v. McVay, 282 P.2d 756 (Okla., 1955).

36. Yania v. Giban, 397 Pa. 316, 155 A.2d 343 (1959).

37. Buck, 44 A. 809. See also Sweeney v. Old Colony RR Co., 87 Am. 12 644 (Mass., 1865)Google Scholar. Bui see Harriman v. Pittsburgh R'y Co., 4 Am. St. Rep. 507, 512–513 (Ohio, 1887)Google Scholar.

38. Bohlen, , The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 316, 320 (1908)Google Scholar.

39. Prosser, W., The Law of Torts 325–326 (4th ed. 1971)Google Scholar. For a more candid functinal analysis of “duty” see Donohue v. Copiague Union Free School Dist., 407 N.Y.S.2d 874, 877 (1976) and Hosein v. Checker Taxi Co., 95 111. App. 3d 15, 419 N.E.2d 568, 571 (1981).

40. Dyche v. Vicksburg, 79 Miss. 361, 30 So. 711, 712 (1901). See also Northern Central Ry. Co. v. State, 96 Am. 12 545 (Md., 1868)Google Scholar.

41. Tippecanoe Loan & Trust v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 104 N.E. 866 (Ind., 1914)Google Scholar.

42. Bailou v. Prescott, 64 Maine 305 (1874) where a doctor withdrew from treatment of a patientGoogle Scholar.

43. Depue v. Flateau, 100 Minn. 299, 111 N.W. 1 (1907).

44. L.S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334, 337 (1942).

45. Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976).

46. Hutchinson v. Dickie, 162 F.2d 103 (6th Cir., 1947).

47. See Id. at 106.

48. White, , The Impact of Legal Science on Tort Law, 1880-1910, 78 Colum. L. Rev. 213, 215 (1978)CrossRefGoogle Scholar.

49. Hutchison, W., The Modernist Impulse in American Protestantism (1976)Google Scholar. “The Church is indispensable to the religious education of humanity and to the conservation of religion, but the greatest future awaits religion in the public life of humanity.” Rauschenbusch, W., A Theology for the Social Gospel 145 (1917)Google Scholar.

50. “Whatever may be the test to establish the ultimate principles of morality, the doctrine of utility must be all-important in working out the details.” Gray, J., The Nature and Sources of the Law 307 (1963)Google Scholar.

51. “In the early English law, there was virtually no consideration of duty. Liability was imposed with no great regard even for the fault of the defendant. … Certainly there is little trace of any notion of a relation between the parties, or an obligation to any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world, and he was liable to any person whom he might injure by his misconduct.” Prosser, supra note 39, at 324.

52. Handy, supra note 21. Hopkins, supra note 3.

53. “The social gospel, … may be regarded as American Protestantism's response to the challenge of modern industrial society.” Hopkins, supra note 3, at 318. “The period during which [the requirement of a particular duty] developed was that of the industrial revolution, and there is good reason to believe that it was a means by which the courts sought, perhaps more or less unconsciously, to limit the responsibilities of growing industry within some reasonable grounds.” Prosser, supra note 39, at 325.

54. It should be noted that an adversarial legal system has inherent mechanisms and attitudes for dynamic operation. Levi, E., An Introduction to Legal Reasoning 1–8 (1949)Google Scholar. It should also be noted that the federal system allows for legal and judicial diversity.

55. Ames, , Law and Morals, 22 Harv. L. Rev. 97, 113 (1908–1909)CrossRefGoogle Scholar.

56. Bohlen, supra note 38, at 336.

57. Matthew 25:44-45 (Revised Standard Version).

58. Jacobs, J., The Death and Life of Great American Cities 65–66 (1961)Google Scholar, recounted in Gusfield, Social Sources of Levites and Samaritans, in The Good Samaritan, supra note 1, at 189.