On the Nature of the Action-omission Network
| Publication year | 2010 |
Georgia State University Law Review
Article 1
3-21-2012
On the Nature of the Action-Omission Network
Theodore Y. Blumoff
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Recommended Citation
Blumoff, Theodore Y. (2007) "On the Nature of the Action-Omission Network," Georgia State University Law Review: Vol. 24: Iss. 4, Article 1.
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ON THE NATURE OF THE ACTION-OMISSION
NETWORK
Theodore Y. Blumoff
Daughter Son
Introduction: The Omission Liability Network**
I am solicited for help almost daily by strangers genuinely in need of assistance or, more frequently, by associations acting on their behalf. From supermarket entrances where good people espouse a
* Professor of Law and Adjunct Professor of Medical Education, Mercer University, Macon, Georgia. Special thanks to Greg Chamber, Greg Jones, John Kleinig, Karen Kovach and Jack Sammons for substantial help clarifying the issues, and to Jennifer Richter (Class of 2007) for early research assistance and Megan Boyd (Class of 2008) for later help. Thanks also to the Georgia State University Law Review for the kind invitation to present the work at this Symposium. As always, I am grateful to Mercer University and Dean Daisy Floyd for continuing support.
** In this "network" each "node" (or actor) is directly and reciprocally connected with one another. Although typically one or both parents would serve as a "connector" to the non-family service providers, it routinely happens that each child also has a direct connection to the outside providers. See generally Robert a. Hanneman & Mark Riddle, Introduction to Social Network Methods (2005), available at http://www.faculty.ucr.edu/~hanneman/nettext/.
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rich array of laudable causes to Red Cross email alerts describing the need for famine or flood or (ubiquitously) disaster relief; to Doctors Without Borders and Oxfam; to heart, kidney and diabetes foundations, cancer societies, and children's illnesses of every imaginable variety; to the disabled, the homeless, the abused and neglected and more. Each solicitation triggers a brief, emotionally-charged sensitivity to a familiar narrative of individuals in need, and invariably they produce a sensation now well-wired in my consciousness when so alerted. I know that many of these individuals suffer significant deficits simply because of bad luck—antecedent, constitutive and testing, economic, social, moral or otherwise.1 Yet I mostly ignore these solicitations or quickly delete them or never answer them (dispatched with telephonic dispassion), or I drop them unopened into the trash with only that microsecond neural reaction that causes hesitation. Why is that? Well for one, I can say that I have only so much money and can't possibly contribute to every deserving organization. True, but that explanation feels insufficient. I go to the market or wine store and purchase a nice but unnecessary bottle of Sauvignon Blanc or a Merlot and do so for my own pleasure. Surely then, I ought to contribute something to each (or at least more) of these worthwhile causes. Usually though, I do not. I allocate my giving and I sleep well. Why such comfort?
David Hume was a careful observer of human behavior and he left hints to my question's answer. His observations led to a view of moral psychology that was underwritten necessarily (and, for him, sufficiently) by our human natures: "[W]hat exists in the nature of things is the standard of our judgment; what each man feels within himself is the standard of sentiment."2 What each person finds "within," he concluded, is self interest and self love, and he regarded
1. See Thomas Nagel, Moral Luck, in mortal questions 24 (Cambridge 1979) (describing different forms of moral luck).
2. See David Hume, Enquiries Concerning the Principles of Morals 171 (L. a. Selby-Bigge & P. H. Nidditch, eds., Oxford: Clarendon Press 3rd ed. 1975) (1777) [hereinafter Hume, Principles of Morals].
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these qualities as inhabiting the core of human morality.3 Within the "nature of things" is a powerful tendency to rescue our child or spouse or sibling or loved one far more readily than to come to the aid of a neighbor or a person unknown.4 Yet we do provide substantial assistance to our friends, especially those we love, to those who demonstrably lack sufficient capacity, and sometimes we even provide aid to strangers in need whom we have a unique ability to assist but with whom we never have, and likely never will have any contact.5 And, as we know from common experience, we are more likely to stop and give aid to an injured person within our immediate reach than we are to heed yet another call to help the injured and destitute in a far away land, although their need for assistance may be exactly the same as the needs of those proximate to us.
Hume acknowledged that although we are driven mostly by our own interests, we are not indifferent to the suffering of our fellow beings, even those with whom we have no connection. Our sympathies with humanity are substantial, and they are evinced in ways that are consistent with, although not fully driven by, conduct evolutionary biologists associate with "kinship selection," that is, the likelihood of individual members of any species to cooperate with their biologically close kin to advance inclusive fitness,6 and "reciprocal altruism," cooperative sharing among non-related individuals in a group.7 Hume concluded that our feelings of
3. See David Hume, A Treatise on Human Nature 488 (L. A. Selby-Bigge & P. H. Nidditch, eds., Oxford: Clarendon Press 2nd ed. 1978) [hereinafter Hume, Treatise]; see also David Hume, Of the Dignity or Meanness of Human Nature, in selected essays 43, 43-44 (Stephen Copley & Andrew Edgar eds., Oxford 1993).
4. See Hume, Treatise, supra note 3, at 481.
5. Adam Smith began his treatise on morality with the famous statement, "[h]ow selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in . .. others, and render their happiness necessary to him, though he derives nothing from it, except the pleasure of seeing it." Adam Smith, The Theory of Moral Sentiments 3 (Prometheus Books 2000) (1759). Smith used the term "sympathy... to denote our fellow-feeling with any passion whatever." Id. at 5.
6. See, e.g., John Maynard Smith, Group Selection and Kin Selection, 21 nature 1145, 1145 (1964); Francis Steen, Natural Selection: Exposition, Examples, Discussion (1998), http://cogweb.ucla.edu/ep/Selection.html.
7. William D. Hamilton, The Evolution of Altruistic Behavior, 12 AM. naturalist 354 (1963). See generally frans de waal, good natured: the origins of right and wrong fn humans and
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obligation radiate in a network-like fashion outward from ourselves, first to our immediate progeny and mate, our closest genetic relatives, and then to more distant family and relations. The valence of the emotional, moral, and legal connections tend to diminish as kinship
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and status become more remote. Hume came to a well-reasoned, pre-Darwinian observation of evolutionary psychology. And he went further because he was also sensitive to a less biologically-driven and more traditional form of altruism: "What is [sic] honourable, what is fair,... what is noble, what is generous, takes possession of the heart, and animates us to embrace and maintain it."9 And so, he argued, we are moved by what is within us, by what is useful to us and to others, and by the needs of those who are important to us. "Usefulness" thus embraces our moral sentiments and our moral psychology.
Hume understood that we are, in fact, animals, subject (at least initially) to the tendencies that move other animals. Like most other animals, our natural preferences, from a moral perspective, begin with those closest to us, although we do harbor deep feelings about the welfare of other, less closely related and unrelated individuals. From an evolutionary point of view, we have come to recognize that many actions that we could label "duties" include a substantial amount of conduct that, to us individually, is measured as a disutility, i.e., an apparent present loss of personal fitness that is not clearly recoverable somewhere down the road.10 And we often fail to
other animals 12, 24-27 (1996); Jim Moore, The Evolution of Reciprocal Sharing, 5 ethology & sociobiology 5 (1984), available at http://weber.ucsd.edu/~jmoore/publications/Recip.html.
8. Noting that any behavior that advances genetic fitness is evolutionarily advantageous, J.B.S. Haldane famously quipped, "I would lay down my life for two brothers or eight cousins." Gaden S. Robinson, Society Insects, times online, July 25, 2007 (Book Review), http://entertainment.timesonline.co.uk/tol/arts_and_entertamment/the_tls/tls_selections/natural_hi story/a rticle2306055.ece.
9. Hume, Principles of Morals, supra note 2, at 172.
10. See, e.g., Andy Gardner & Stuart A. West, Cooperation and Punishment, Especially in Humans, 164 Am. Naturalist 753 (2004), available at http://westgroup.biology.ed.ac.uk/pd f/Gardner& West_AmNat04.pdf.
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live up to our obligations and are probably doomed to fail at times in the future. Why that might be is the subject of this work.11
This work explores the foundations of a deeply felt intuition that pervades American jurisprudence: the act-omission distinction ("AvO"). I conclude that Hume's understanding of the origins of our...
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