Fraternity and Common Law: Liability for “Failure to Provide AID”

Abstract

Is there space for fraternity in Anglo-American law? Could the concept of fraternity, understood as being responsible for the care of the other, different from oneself, rise to a legal principle in common law? According to some scholars, fraternity must be placed at the base of legislation that is more sensitive to the needs of the person in distress and, particularly, of homeless families through a more equitable redistribution of wealth. The principle of fraternity is considered by others as the keystone of a community vision of the property and the relationship with natural resources. Finally, some scholars believe that fraternity and the gospel principle “love your neighbor as yourself”, expressed in the Parable of the Good Samaritan (Luke 10: 25-37), find complete correspondence in the legal duty to act in aid of those who find themselves in difficult situations. In common law, however, aiding a neighbor in danger is only considered as a moral duty that cannot assume legal value without constituting an unacceptable restriction of freedom and personal autonomy. The present work is meant to deepen the analysis of the relationship between the principle of fraternity and the legal duty to aid, in the light of the ongoing debate in common law.