Punishing passive behaviour


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I am a child of the Holocaust. Both of my parents are Holocaust survivors.

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Hey there, time traveller!
This article was published 25/10/2014 (3137 days ago), so information in it may no longer be current.

I am a child of the Holocaust. Both of my parents are Holocaust survivors.

The increasing focus of my current research on bystanders and passivity is a direct result of my family’s background; over the past few years my scholarship has focused on extremism and intolerance, particularly the limits of tolerating intolerance. In that context, I have become increasingly engaged with the bystander because of a conviction that standing by, passively, facilitates extremism.

Presently I am writing a book that examines the culpability of the bystander through the lens of the law, rather than an ethical or moral perspective. The bystander is an individual who observes another in clear distress, but is not the direct cause of the harm. A culpable bystander is one who has the ability to mitigate the harm but chooses not to. Needless to say, age and ability of the actor must be taken into consideration.

In the course of my lifetime, I — like many others — have been faced with the dilemma of whether to involve myself when others are in need of assistance. Similar to others, I have made right and wrong decisions; the former are not worthy of discussion, the latter weigh heavily on my conscience.

Once I chose not to assist a homeless adult who was the subject of ugly bullying by a college student; my inaction was inexcusable for I stood but two feet from the incident and could have either prevented it or at least mitigated its consequences. On a second occasion, I was present at a restaurant when an individual at the next table was engaged in an ugly anti-Semitic diatribe. I chose to ignore it.

Tragically, extremism benefits from the decision by many to look the other way. Regardless of the causes of the bystander’s failure to act, the consequences of inaction are tragic. The pages of history are filled with painful examples.

Passivity — the failure to act and to look the other way — is a human reaction I find unfathomable and unacceptable. The crux of the dilemma I seek to resolve is an individual’s legal obligation when another individual is in distress and vulnerable.

The Holocaust in general and particular events including Kristallnacht, death marches, deportations and thousands of concentration camps, many located in the midst of civilian population, significantly shape my conviction that creation of a legal paradigm regarding the bystander is essential.

History shows relying on a moral impetus with respect to the “right thing to do” is insufficient. The Righteous Amongst the Nations — movingly honoured at Yad Vashem, the World Center for Holocaust Research in Jerusalem — are proof of the willingness of individuals to act bravely in risking life and limb. However, the thousands who sought to aid another pale in comparison to those who chose to turn their back in the face of potential harm to others. It is for that reason that I propose imposition of a legal duty to act; relying on moral imperative is insufficient.

From the two incidents above I have learned to be understanding of non-action: After all, if I, who fully understands the consequences of non-involvement, can choose not to act then I must, at least, be sympathetic to others who similarly decide on a “safe course.” However, choosing a “safe course” cannot justify failure to act.

In other words, in accordance with the legal architecture my book proposes, failure to intervene to protect an innocent homeless individual would be deemed a crime, subject to police investigation and prosecutorial discretion.

Regarding the anti-Semitism at the restaurant? Ugly, yes but as it did not morph into incitement, the speech was protected. In the context of the legal architecture I propose, my silence is not a crime. Should I have said something? As the “should” question suggests discussion about the “right thing to do,” each individual can ascertain what is the ethical course of action.

These incidents reflect the spectrum of human interaction and conduct. They pose significant dilemmas for the bystander; proposing culpability predicated on legal obligation seeks to minimize the grey zone regarding when law mandates action.

I am convinced that the articulation and implementation of a legal duty to act is essential, particularly in this contemporary age marked by extremism, violence and hatred. To ignore that reality is to, conceivably, set the stage for, yet again, unimaginable violence against those who are helpless.

Given my background, I have a deep and powerful responsibility to address this difficult and complex legal dilemma. That is the least I can do to honor my parents who survived the Holocaust and my relatives who did not.


Amos N. Guiora is professor of law and co-director, Center for Global Justice, S.J. Quinney College of Law, University of Utah; Guiora’s latest book is Tolerating Intolerance: The Price of Protecting Extremism, Tolerating Intolerance: The Price of Protecting Extremism. He will speak at the annual Kristallnacht commemoration Sunday at the Asper Jewish Community Campus.

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