The first argument that can be employed against the supererogation the-sis is theargument from the possibility of harming by omission.The defender of the supererogation thesis must claim that actions that improve the well-being of others are morally good but their omission is not morally or legally prohibited.1 But there are two groups of examples for actions whose omissions we would morally (and/or legally) blame and sanction.
Firstly, this holds of duties to care: Parents who let their child die of ne-glect while they are on vacation harm the child by omission. Secondly, this seems also to hold for professional duties: doctors who are on drugs while on duty can harm their patients by omitting to fulfill their profes-sional duties. A lifeguard who does not save a child from drowning in his area of the beach since he is drinking with his buddies violates his professional duty to save people from drowning, whereas another per-son who is not a lifeguard on duty may sit at the beach with his buddies not paying attention to drowning people. If parents or doctors and life-1 For this discussion see the classical texts of Urmson 1958, Chisholm 1963,
Feinberg 1961, Heyd 1982.
guards violate their duties, we would say that they have harmed the ones they should have saved. Thus obviously not all actions are supereroga-tory. There are some strong positive duties which will not only morally but even legally be sanctioned if violated. This is, of course, also an ar-gument against the subordination thesis.
A second argument against the supererogation thesis can be called the argument for a duty to help.At first sight this comes from the ability to render assistance in an emergency and the severe danger for the per-son to be saved. Someone who lets a small child drown next to his chair that he could have saved without any real effort can be blamed morally or even legally for serious wrongdoing. The less the helper has to sac-rifice and the more can be saved for the endangered person, the stronger the duty. A failure to render assistance in an emergency is even legally sanctioned in most European countries. Here we might instantly think of Peter Singer’s famous drowning child case. The above-mentioned
“should”, which Gewirth observed is often interpreted in a weak or su-pererogatory sense when it comes to our relationship towards the very poor, is interpreted in a strong sense in Peter Singer’s drowning child case. Singer presupposes that there can be harming by omission. The utilitarian position even goes so far as to say that not to save the child’s life would be equivalent to killing him or at least to negligent homi-cide.2 For our purposes here, it makes no difference whether we speak of harming in the drowning child case or only in the two cases mentioned above. All three cases are cases of serious moral wrongdoing by omission, which is all we need to reject the supererogation thesis.
The omissions in question are all morally prohibited since they consti-tute serious moral wrongdoing. Still, instead of classifying the drowning child case as harming by omission, I propose to classify only the viola-tion of the duties of parents, doctors and lifeguards from the examples above as cases of harm. This is because there is a crucial difference be-tween the first two and the third kind of positive duties. One could de-fend the idea that the decisive factor for the normative (and juridical) strength of parental and professional duties is what we can call their pre-vious-behavior-dependency.3
2 For a discussion of the similarities or differences between killing and letting die cf. Birnbacher 1995, ch. 10, Rachels 1989, 258, and Singer 1984.
3 The notion was proposed by Dieter Birnbacher 1995, ch. 8.3. Others, such as Pogge, would not speak of duties but of positive obligations that come from duties to keep contracts as far as professional duties are concerned.
Duties restrict our freedom to act and, therefore, diminish our op-tions.4 These are their costs. Hence, from a liberal point of view, it makes sense to distinguish between duties resulting from intentional previous behavior and duties that are independent of intentional previ-ous behavior. For example, parental duties are previprevi-ous-behavior-de- previous-behavior-de-pendent: parents have to care for their children since they brought them into existence. So they are the ones that have to bear the costs that come with the duties to care, and not, say, the neighbors or some bystanders. The same is true for professional duties. The lifeguard and the doctor decided to take their jobs; they signed contracts to take over certain duties during their working hours. So, at first sight, we seem to accept that there are positive duties that come from a more or less autonomous decision to behave in a way that implies the duty.
Obviously, in a scenario like Singer’s drowning child case, the pos-itive duty does not derive from such behavior of the duty-bearer, but comes simply from his ability to help on the one hand and the neediness of the person in danger on the other. While the failure to render assis-tance in an emergency is juridically sanctioned in Germany and most European countries, it is not in the UK, most US states and Australia.
I suppose that the problem of previous-behavior-independent positive duties, especially for countries with a liberal tradition, is that the duty-bearer does not have control over their coming into existence:
as in Singer’s drowning child case, the duty comes from the simple fact that one person is in need and another one is able to help. What seems relatively unproblematic in this case has been a source of endless discussion in the case that Singer considers analogous : If the rich can save some of the poor from dying by donating money, this is supposed to be an analogously strong positive duty.5
At this point, we can leave open whether the drowning child case and the poverty case are really analogous or not.6 If the argument 4 Marcia Baron sees the fact that “moral constraint is at odds with freedom” as a legitimation of David Heyd’s defense of the category of the supererogatory :
“even if heroic and saintly acts are not beyond the capacity of ordinary people, it is still vital that there be a category of supererogatory acts because, in his view, moral constraint is at odds with freedom, and in the interest of expanding (or at least not contracting) freedom, we want to keep moral constraint to a mini-mum” (Baron 1998, 58).
5 For discussion see Miller 2007, Kamm 1999a, 1999b and 2000, Mieth 2008.
6 For an analysis that points out morally relevant factors that make the cases dis-analogous see Mieth 2011.
from the possibility of harming by omission and the argument for a duty to help are correct, then positive duties not generally supererogatory. In the three cases mentioned, the persons in need have a moral or even legal right to be helped. The boundary between supererogatory actions and duties is not congruent with the boundary between positive and negative duties. And obviously this is also an argument against a general subordination thesis.
Most of us would consider it a serious moral if not juridical wrong if someone did not render assistance in an emergency even though it would be possible for him or her at low cost and someone’s life was at stake. This is even true for cases in which we would have to violate a negative duty (e. g. to keep a lunch appointment (Kamm 1985, 119 f.) or not to damage other’s property (Unger 1996, 63 f.)) in order to save a life. In such cases helping is not considered superogatory, i. e. morally good to do but not morally prohibited to omit doing. In my view this goes back to the relevance of the goods involved. The theory of goods and the differentiation between basic goods and additional goods7can give us a twofold borderline between supererogatory actions and duties.
Supererogation 1comprises actions that improve the situation of an-other person concerning a non-necessary good. If such an action is pre-vious-behavior-independent, no-one is harmed if it is not performed.
We are speaking of small favors here, such as inviting my neighbor for dinner or, to use Joel Feinberg’s example from a different time, giv-ing a stranger a match to light his cigarette (Feinberg 1961, 276 f.). Such acts are friendly and welcome, sometimes they are asked for, but they cannot be required. Here, the first proposed necessary criterion for a strong duty, its reference to a basic good, is not met. Some might con-sider such actions to fall under duties of charity or the weak general duty to improve other’s well-being in a Kantian sense. For our aim of deter-mining what makes a duty strong, the difference between those two op-7 Authors from several different theoretical points of view, e. g. Pogge, Nuss-baum, Gewirth, Höffe, Shue, come to the conclusion that there are some basic goods, basic interests or capabilities that are a presupposition to living a human life worth living. I cannot go into this discussion in any detail here.
Let us start from the goods that are mentioned in the Declaration of Human Rights (art. 25): food, clothing, housing, medical care, “necessary social serv-ices” as well as “security” in the face of a “lack of livelihood in circumstances beyond […] control”. What is important for us here is the differentiation be-tween goods that everyone needs and has a (human) right to and further goods.
tions, a supererogatory action or a general weak duty of benevolence, is not relevant here.8We can even speak of a structural resemblance of the supererogation model with the Kantian one. Both models try to separate strong (negative) duties from actions that are supererogatory or from weak positive duties, the similarity being that not to perform a superer-ogatory act or not to fulfill a positive duty does not imply a rights-vio-lation or serious moral wrongdoing. Both models are misleading since there are strong positive duties, e. g. in the drowning child case.
Supererogation 2comprises actions that go beyond what is reasonably demandable in terms of their costs for the potential duty-bearer. Here it is appropriate to speak of saintly or heroic acts. Someone who jumps into a dangerous ice-cold river or into a burning house to save another person’s life puts his own life at risk, and this is beyond what duty can require. Even Kantians see a general place for the supererogatory here.9 While the hero risks his life, the saint sacrifices his life-plan in order to help others. If autonomy is also a basic good, the actions of the saint are supererogatory, too, since by jettisoning his life-plan, he goes beyond what is reasonably demandable. Here the first criterion for a strong duty, its reference to basic goods, is met but the second criterion, rea-sonable demandingness, is not. Saintly and heroic acts go beyond an otherwise strong duty.