Prudence and the Absence of a Legal Duty to Rescue: The Political Anthropology Sustaining a Liberal Politics of Responsibility

In common law, there is no duty to rescue. Rather than considering this as a gap or an error, the essay treats the absence as emblematic of a tradition of both legal and political reticence that defers to the authority of prudence. The essay discusses Eric Voegelin’s account of Aristotle’s physei dikaion and the spoudaios, the development of a tradition of reticence in English constitutionalism, before considering Emmanuel Levinas’ work on “response-ability” at the interpersonal level. Bringing all of this to bear upon the absence of a duty to rescue, the essay also invokes some judicial decisions to argue that liberal politics is properly a politics of deference to an authority that more than political and more than legal: operative and implicit is the notion that prudence and responsibility are grounded not in institutions but in persons and communities.