Rights, Duties, and Going Beyond Duty

A strong swimmer stands at the edge of a shallow pond and watches a toddler drown. There is no current, no danger, and nobody else present. In most English-speaking jurisdictions the swimmer has committed no offence and can be sued for nothing. In Germany and in France they would face criminal prosecution for failing to render assistance.

Nobody in either country thinks the swimmer behaved well. What the legal difference records is a disagreement about whether that failure is the kind of thing law should reach, and behind it a philosophical disagreement about what kind of demand a duty to help is.

Two shapes a duty can have

The analysis of claim rights showed that a right and a duty are one relation seen from two ends. The same applies here, and the two shapes of duty answer to the two families of rights. A right not to be assaulted corresponds to a duty of restraint held by everyone. A right to be fed corresponds to a duty of provision held by somebody, and the word somebody is where the trouble starts.

Three features separate them and none is merely technical.

Negative duties are jointly satisfiable. Everyone can refrain from assaulting everyone else, permanently, without anything being given up in the sense that matters. Positive duties compete: the resources that discharge one are not available for another, and satisfying all of them at once may be impossible.

Negative duties are determinate. A duty not to steal tells each person exactly what to do in every case. A duty to relieve suffering tells nobody what to do until further questions have been answered about whose suffering, how much relief, and at whose expense.

Negative duties have no natural stopping point because they demand nothing. Positive duties have to have one, since the need in the world is unlimited and no person's resources are, and specifying that stopping point is what most of the argument is about.

The traditional way of managing this is to distinguish duties owed to a specific person, which must be performed on pain of wronging them, from duties to pursue an end, which leave the agent latitude about when, how, and toward whom. A duty to help the badly off is a duty of the second kind on the traditional account: it is genuinely binding, nobody in particular can demand its performance, and the person bearing it decides how to discharge it. Kant's version of this distinction is set out in the ethics tier.

The latitude is what makes the duty liveable and it is also its weakness. A duty that leaves the agent to decide when it applies is a duty that a comfortable person can go a whole life without noticing.

The one positive duty nearly everyone accepts

The swimmer at the pond is the standard case and it is unusual among positive duties in commanding near-universal agreement. It is worth asking why, because the answer shows what makes positive duties hard elsewhere.

Every feature that makes positive duties indeterminate has been removed. The victim is identified rather than statistical. The rescuer is identified, because they are the only person present. The action required is specific and its cost is bounded and small. There is no question of whether helping this person means failing another, because no other is in the water. Under those conditions a positive duty is as determinate as a negative one, and the resistance disappears.

That diagnosis has an uncomfortable implication, and the intermediate tier is largely about it. If the reason the pond case is compelling is that all four conditions hold, then any case where all four hold should be equally compelling. Whether the person is fifty metres away or five thousand kilometres away is not one of the four. Whether you happen to be able to see them is not one of the four. Anyone who accepts the duty of rescue and denies that it extends to distant strangers owes an account of which feature of the pond case they are relying on, and the obvious candidates, proximity and visibility, are hard to defend as morally relevant once they are stated openly.

Three replies are usually attempted, and each is partial. One is that in the distant case there are millions of other people equally able to help, so no particular person is the rescuer and the duty has become indeterminate again. A second is that at a distance one cannot know whether the help arrives or does any good, and a duty cannot require what cannot be assessed. A third is that the demand never stops, because there is always another person in peril, so that accepting the extension means accepting a duty that consumes a life.

Better than required

The word comes from a Latin verb meaning to pay out more than is owed, and it entered moral vocabulary through Christian theology, where works of supererogation were held to exceed what the moral law required. The Reformation attacked the doctrine directly, on the ground that no one does more than is owed to God, and the category dropped out of serious moral philosophy for four centuries.

It returned in 1958, when J. O. Urmson published a paper called "Saints and Heroes" arguing that the standard classification of actions into the obligatory, the permitted, and the forbidden leaves out something everyone recognises. A soldier who throws himself onto a grenade to save his companions has done something the rest of them did not do wrong in failing to do. He was not discharging a duty. Calling his act merely permitted, as though it stood alongside having lunch, gets it as wrong as calling it required.

Once the category is admitted, it generates an immediate difficulty.

The problem is sometimes called the paradox of supererogation and it can be stated in three lines. An act is supererogatory only if it is morally better than the alternatives available. If it is morally better and there is no obstacle to performing it, then there is decisive moral reason to perform it. If there is decisive moral reason to perform it, it is required, and it was not supererogatory after all.

The pressure comes from the assumption that what is morally best is thereby what one ought to do, and the three available positions are distinguished by what they do with it.

Anti-supererogationism accepts the assumption and denies the category. On this view the grenade case is either a duty the soldier discharged, or an act with no special moral standing, and our reluctance to demand it reflects our reluctance to demand hard things rather than any fact about what morality requires.

Qualified supererogationism keeps the category by weakening the duty. There was a duty to jump on the grenade, and it was defeated or excused by the enormity of the cost, so the soldier did what was required of no one because no one could be required to bear that. The account preserves the connection between good and ought, at the price of making the heroic act the discharge of an obligation that had been waived.

Unqualified supererogationism rejects the assumption instead. Not every moral reason generates a requirement. Some reasons commend an act without demanding it, and the moral world contains a genuine region of the optional-but-admirable which is not a shadow of duty. This gets the phenomenon right and owes an account of the difference between the two kinds of reason, which is harder to give than to gesture at.

What this tier has done

Five articles have assembled equipment rather than settling anything.

The relation between moral theory and particular cases turned out to run in both directions, which is why this subject is not the mechanical application of results proved elsewhere. The question of which beings can be wronged was separated from the question of what wrongs them. Harm was analysed and the obvious analysis was found to fail in specific places. Consent was shown to change what may be done, without certifying that what was done was acceptable. Doing was distinguished from allowing, and intending from foreseeing, with both distinctions surviving in weakened form. And duties of restraint were separated from duties of aid, with the boundary between duty and admirable excess left where it actually sits, which is unsettled.

None of that answers a practical question. What it does is make the practical questions statable, which is the point of a beginner tier. The intermediate tier applies the equipment: to decisions at the beginning and end of life, to the treatment of animals, to what is owed to distant strangers, to the limits of free expression, and to the conduct of war.