171
PERIL INVITES RESCUE: AN EVOLUTIONARY
PERSPECTIVE
Bailey Kuklin*
I. I
NTRODUCTION
:
T
HE
R
ESCUE
D
OCTRINE
...................................... 171
II. E
VOLUTIONARY
P
SYCHOLOGY
...................................................... 176
A. Principles of Evolution ....................................................... 177
B. Altruism .............................................................................. 179
1. Kin Selection (Inclusive Fitness) .................................. 181
2. Reciprocal Altruism ...................................................... 186
3. Sexual Selection ........................................................... 193
III. T
HE
N
EW
Y
ORK
R
ESCUE
C
ASES
.................................................... 208
IV. C
ONCLUSION
.................................................................................. 211
I. I
NTRODUCTION
:
T
HE
R
ESCUE
D
OCTRINE
The legal doctrine usually entitled “peril invites rescue” or “danger
invites rescue” relates to the rights of injured rescuers under the common
law. This rescue doctrine is rather straightforward. Under the common
law, a person who suffers injuries during a rescue attempt has a direct
cause of action in negligence against any tortfeasor who, through her
wrongful conduct, put another person or property at imminent risk.
1
* Professor of Law, Brooklyn Law School. This research was supported by a summer
research stipend from Brooklyn Law School. For excellent research assistance, I thank Helen
Chang, Desirée Johnson, Deborah Koplovitz, Richard Torres, Michael Wigotsky. For their useful
comments I also thank Joan Wexler, Minna Lyons and the participants at a Brooklyn Law School
Faculty Workshop and at the seventh annual conference of the Society for Evolutionary Analysis in
Law (http://www.sealsite.org).
1. “Where defendant’s act threatens harm to the life or property of another, and a person
injures himself or another in acting to avert this harm, the original wrongdoer will be liable for this
latter damage.” 4 F
OWLER
V.
H
ARPER ET AL
.,
T
HE
L
AW OF
T
ORTS
§ 20.5, at 160 n.41 (2d ed. 1986).
See also R
ESTATEMENT
(S
ECOND
)
OF
T
ORTS
§ 445 cmt. d & illus. 4 (1965); D
AN
B.
D
OBBS
,
T
HE
L
AW OF
T
ORTS
§ 184, at 456 (2000); R
ICHARD
A.
E
PSTEIN
,
T
ORTS
266-67 (1999). “The ‘rescue’
doctrine applies though neither human life nor the rescuer’s own property are in peril as a result of
[the] defendant’s acts.” 4 H
ARPER ET AL
., supra, § 20.5, at 160 n.41. “Some cases have taken the
view that the rescue of property did not warrant the taking of risk to life or limb, but the tendency
has been to reject any rule of thumb for an inquiry into reasonableness in all the circumstances.” 3
H
ARPER ET AL
.,
supra, § 16.10, at 484 n.4.
Through what is known as the “fireman’s rule,” some
professional rescuers, such as firefighters and police officers, are often excluded from recovery
under the rescue doctrine for the normal hazards of their occupation. 4 H
ARPER ET AL
., supra,
§ 20.5, at 160 n.41, § 21.1, at 208 n.28. See also D
OBBS
,
supra, § 184, at 456-57. Other professional
rescuers, such as doctors and hospitals, are granted restitution to encourage their aid. See
R
ESTATEMENT
(T
HIRD
)
OF
R
ESTITUTION AND
U
NJUST
E
NRICHMENT
§ 1 cmt. b, illus. 4 (Discussion
Draft 2000); 2 G
EORGE
E.
P
ALMER
,
T
HE
L
AW OF
R
ESTITUTION
§ 10.4,
at 375-77 (1978).
172 HOFSTRA LAW REVIEW [Vol. 35:171
Similarly, an injured rescuer has a tort claim against any rescuee who,
through her own negligent actions, put herself at risk.
2
Recovery can be
obtained even if the rescue attempt is unsuccessful.
3
While rescue efforts
are normally not required of bystanders,
4
the rescuer is protected if she
undertakes one, whether by spontaneous or deliberate action,
5
even
when the rescuee is contributorily negligent.
6
The tortfeasor is said to
have a duty of care with respect to rescuers because rescue attempts are
foreseeable.
7
The determination of the reasonability of the rescuer’s conduct
2. “With a single exception, the cases hold that an actor whose own negligence causes a
hazardous situation is liable to one who attempts to rescue him.” Ross A. Albert, Comment,
Restitutionary Recovery for Rescuers of Human Life, 74 C
AL
.
L.
R
EV
. 85, 92 (1986) (citations
omitted); see also Louis Waller, Rescue and the Common Law: England and Australia, in T
HE
G
OOD
S
AMARITAN AND THE
L
AW
141, 147 (James M. Ratcliffe ed., 1981); Edward A. Kaplan,
Comment, Recovery by the Rescuer, 28 L
A
.
L.
R
EV
. 609, 609 (1968). Relatedly, a person already
undertaking a rescue may recover against a third person who then negligently injures the rescuer.
See Kaplan, supra, at 609, 613-14. This would fall outside the technical parameters of the rescue
doctrine since the negligence in question relates directly to the rescuer.
3. See, e.g., Wagner v. Int’l Ry. Co., 133 N.E. 437, 438 (N.Y. 1921).
4. See Radhika Rao, Property, Privacy, and the Human Body, 80 B.U.
L.
R
EV
. 359, 442
(2000); Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Y
ALE
L.J. 247, 247 (1980). For an
economic analysis of the common law rule that one does not normally have the duty to rescue a
stranger in distress, regardless of low costs and high benefits, see W
ILLIAM
M.
L
ANDES
&
R
ICHARD
A.
P
OSNER
,
T
HE
E
CONOMIC
S
TRUCTURE OF
T
ORT
L
AW
143-46 (1987). “Although the preceding
analysis does not prove that the common law’s refusal to impose liability for failure to rescue is
efficient, it prevents one from concluding that the absence of such a rule necessarily is inefficient.”
Id. at 146. Furthermore, “liability might actually reduce the number of altruistic rescues by
depriving people of credit for altruism (how would they prove they hadn’t acted under threat of
legal liability?).” Stockberger v. United States, 332 F.3d 479, 481 (7th Cir. 2003). The legal duties
to rescue that have been advanced by commentators are careful to avoid the requirement of heroism
or sacrifice. See Weinrib, supra, at 261.
5. See
D
OBBS
,
supra note 1, § 184, at 456 (“The rescue need not be spontaneous or
immediate.”); E
PSTEIN
,
supra note 1, at 266 (recovery granted “no matter whether the rescue takes
place through instinctive reaction to a person in peril or as a result of a deliberate, calculated
choice”); 4 H
ARPER ET AL
.,
supra note 1, § 21.1, at 209 (“Moreover the act of the rescuer is no less
foreseeable when it is deliberate than when it is spontaneous.”).
6. See, e.g., Highland v. Wilsonian Inv. Co., 17 P.2d 631, 634 (Wash. 1932).
7. See, e.g., Liming v. Ill. Cent. Ry. Co., 47 N.W. 66, 68 (Iowa 1890) (stating that
“[d]efendant could have foretold . . . that plaintiff, being near, would use every reasonable means in
attempting to save [defendant’s] horses from the flames . . . .”); see also 4 H
ARPER ET AL
.,
supra
note 1, § 21.1, at 208-09. As only Cardozo could put it, “[d]anger invites rescue. The cry of distress
is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to
its consequences. It recognizes them as normal. It places their effects within the range of the natural
and probable.” Wagner, 133 N.E. at 437. But then Cardozo seems to reconsider: “The wrongdoer
may not have foreseen the coming of a deliverer. He is accountable as if he had.” Id. at 438. Bohlen
challenges the finding of rescue foreseeability, though not the holding of liability. See Frances H.
Bohlen, Book Review, 47 H
ARV
.
L.
R
EV
. 556, 557 (1934) (reviewing F
OWLER
V
INCENT
H
ARPER
,
A
T
REATISE ON THE
L
AW OF
T
ORTS
(1933)).
Harper and James, among others, are also dubious. See 3
H
ARPER ET AL
.,
supra note 1,
§ 14.15,
at 331 (“[R]escuers are treated as if they were foreseeable,
although to do so may sometimes involve some stretch of the imagination.”) (citation omitted).
2006] AN EVOLUTIONARY PERSPECTIVE 173
takes emergency circumstances into account.
8
Even false appearances of
risk negligently created by the tortfeasor will support a claim when the
rescuer’s response is reasonable.
9
Nevertheless, at some point generous
to the rescuer,
10
her conduct may be judged so unreasonable as to be
contributorily negligent.
11
Rewards are outside the scope of the rescue doctrine. Instead, the
rescuer, under ordinary tort damages, is simply returned to her ex ante
position.
12
Perhaps this is because society does not value rescues highly.
Perhaps virtue is thought to be its own reward.
13
Perhaps, as some
evidence supports, positive incentives are unnecessary to encourage
rescues, at least of the heroic variety.
14
Or, perhaps, this is due to the
8. See R
ESTATEMENT
(T
HIRD
)
OF
T
ORTS
:
G
ENERAL
P
RINCIPLES
§ 7, at 94 (Discussion Draft
1999) (“If an actor is confronted with an unexpected emergency requiring rapid response, this is a
circumstance to be taken into account in determining whether the actor’s resulting conduct is that of
the reasonably careful person.”). Fleming identifies the undercurrents: “Rescuers are not prudent;
they are heroes.” J
OHN
G.
F
LEMING
,
T
HE
L
AW OF
T
ORTS
157 n.48 (7th ed. 1987).
9. “It has been held that B may recover for injury incurred in a reasonable rescue attempt if
the defendant negligently created an appearance that rescue was needed when it was not.” D
OBBS
,
supra note 1, § 184, at 456 (citing Solomon v. Shuell, 457 N.W.2d 669 (Mich. 1990)).
10. See Weinrib, supra note 4, at 248 (“Recognizing the meritoriousness of rescue and the
desirability of encouraging it, the courts have increasingly accorded favorable treatment to injured
rescuers.”).
11. See, e.g., Cook v. Johnston, 25 N.W. 388 (Mich. 1885), overruled by Felgner v.
Anderson, 133 N.W.2d 136 (Mich. 1965); Eckert v. Long Island R.R., 43 N.Y. 502, 506 (1871)
(“The law has so high a regard for human life that it will not impute negligence to an effort to
preserve it, unless made under such circumstances as to constitute rashness in the judgment of
prudent persons.”); see also Ouellette v. Carde, 612 A.2d 687, 690 (R.I. 1992) (“[P]rinciples of
comparative negligence apply only if a defendant establishes that the rescuer’s actions were rash or
reckless.”); 4 H
ARPER ET AL
.,
supra note 1, § 21.1, at 209-10. This defense “stands no real chance of
success unless the rescue attempt was utterly foolhardy.” F
LEMING
,
supra note 8, at 157. See
D
OBBS
,
supra note 1, § 184, at 456 (stating that recovery is granted so long as the rescuer’s “actions
are not wholly abnormal or hopeless”); E
PSTEIN
,
supra note 1, at 134 (asserting that courts allow the
rescuer “to recover so long as his actions were not ‘rash’”). The rescuer’s “hastiness might create a
risk of excessive rescue, but its effects are negligible at best, for the fear of death means that any
legal rule, wise or foolish, will exert at most scant influence on the ordinary bystander.” Id. Landes
and Posner offer an efficiency analysis: “[I]f the sum of the expected costs of the accident victim
and of the rescuer is less than the expected costs of the accident had no rescue attempt been made, a
rational tortfeasor would gladly have promised to reimburse the rescuer for his injury” if this would
induce the rescue attempt. William M. Landes & Richard A. Posner, Salvors, Finders, Good
Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J.
L
EGAL
S
TUD
. 83,
111 (1978). On the other hand, “the rescuer is not permitted to recover damages from the tortfeasor
if the danger of the rescue attempt was disproportionate to the expected loss from the accident.” Id.
12. See Christopher H. White, Comment, No Good Deed Goes Unpunished: The Case for
Reform of the Rescue Doctrine, 97 N
W
.
U.
L.
R
EV
.
507,
520-21
(2002).
13. See Melvin A. Eisenberg, The Duty to Rescue in Contract Law, 71 F
ORDHAM
L.
R
EV
.
647, 682 (2002); John D. McCamus, Necessitous Intervention: The Altruistic Intermeddler and the
Law of Restitution, 11 O
TTAWA
L.
R
EV
. 297, 302 (1979).
14. See Saul Levmore, Explaining Restitution, 71 V
A
.
L.
R
EV
. 65, 102-04 (1985). See
generally K
RISTEN
R
ENWICK
M
ONROE
,
T
HE
H
EART OF
A
LTRUISM
:
P
ERCEPTIONS OF A
C
OMMON
H
UMANITY
(1996) (discussing four categories of self interest that motivate altruistic behavior).
174 HOFSTRA LAW REVIEW [Vol. 35:171
existence of other forums in which rescuers are rewarded.
To the ancient Greeks, the question of rewards is not a matter of
corrective justice, a goal of torts,
15
but rather one of distributive justice.
According to Aristotle, distributive justice “is concerned in the
distributions of [public valuables such as] honour, or wealth, or such
other things as are to be shared among the members of the social
community . . . .”
16
Under this doctrine, society is to reward the rescuer
according to her merit or just deserts and not simply return her to her ex
ante position.
17
While various governments and private organizations do
indeed recognize heroic deeds with awards,
18
these are outside the reach
of the rescue doctrine itself, which, traditionally, is entirely a private law
affair.
Hence, perhaps some of the norms that surround the rescue doctrine
are not manifested in the private law at all, but rather appear in the
public or social arena. Rescues may indeed be greatly valued by society
even though the rescue doctrine itself does not particularly reflect this.
Acclaim for rescues, and even stronger positive incentives for them, may
come in other guises. Some of these are addressed by evolutionary
psychology.
Evolutionary psychology uses the tools of Darwinism to study
behavior. The understanding of human behavior is obviously critical to
the implementation of the purposes of the law. In recent years
evolutionary psychology has been utilized to explicate various legal
areas, including aspects of constitutional law,
19
criminal law,
20
15. See A
RISTOTLE
,
T
HE
N
ICOMACHEAN
E
THICS OF
A
RISTOTLE
108-11 (D.P. Chase trans., E.
P. Dutton & Co., Inc. 1942).
16. Id. at 106.
17. See infra notes 158-59 and accompanying text.
18. Hyman describes “approximately 20 different entities that . . . [f]or varying periods during
the nineteenth and twentieth centuries . . . recognized risky and non-risky lifesaving behavior by
ordinary citizens.” David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to
Rescue, 84 T
EX
.
L.
R
EV
. 653, 666-67 (2006). For descriptions of the awards, see id. at 720-37. See,
e.g., Carnegie Hero Fund Commission, http://www.carnegiehero.org (last visited Sept. 7, 2006);
The Holocaust Martyrs’ and Heroes’ Remembrance Authority, http://www.yadvashem.org (last
visited Sept. 7, 2006). For consideration of public incentives for rescue, both positive and negative,
see Saul Levmore, Waiting for Rescue: An Essay on the Evolution and Incentive Structure of the
Law of Affirmative Obligations, 72 V
A
.
L.
R
EV
. 879, 882-94 (1986).
19. See, e.g., Raymond R. Coletta, The Measuring Stick of Regulatory Takings: A Biological
and Cultural Analysis, 1 U.
P
A
.
J.
C
ONST
.
L. 20 (1998); Richard A. Epstein, A Taste for Privacy?:
Evolution and the Emergence of a Naturalistic Ethic, 9 J.
L
EGAL
S
TUD
. 665 (1980); Jack
Hirshleifer, Privacy: Its Origin, Function, and Future, 9 J.
L
EGAL
S
TUD
. 649, 662-63 (1980); John
O. McGinnis, The Once and Future Property-based Vision of the First Amendment, 63 U.
C
HI
.
L.
R
EV
. 49 (1996); Norman C. Simon, The “Evolution” of Lesbian and Gay Rights: Reconceptualizing
Homosexuality and Bowers v. Hardwick from a Sociobiological Perspective, 1996 N.Y.U. A
NN
.
S
URV
.
A
M
.
L. 105, 130; Harvey Wheeler, Bio-constitutionalism, 35 UWLA
L.
R
EV
. 460 (2003)
(discussing constitutional law from evolutionary, biological, cultural, and psychological
2006] AN EVOLUTIONARY PERSPECTIVE 175
environmental law,
21
family law,
22
labor law,
23
jurisprudence,
24
and other
topics.
25
In this Article, I examine the interrelationship between the
perspectives).
20. See, e.g., D
AVID
M.
B
USS
,
T
HE
M
URDERER
N
EXT
D
OOR
:
W
HY THE
M
IND
I
S
D
ESIGNED TO
K
ILL
(2005); M
ARTIN
D
ALY
&
M
ARGO
W
ILSON
,
H
OMICIDE
(1988); Katherine K. Baker, What Rape
Is and What It Ought Not to Be, 39 J
URIMETRICS
J. 233 (1999) (arguing that a combination of
evolutionary biology and social norms must be utilized to reduce the prevalence of rape); Deborah
W. Denno, Gender Differences in Biological and Sociological Predictors of Crime, 22 V
T
.
L.
R
EV
.
305 (1997); Oliver R. Goodenough, Biology, Behavior, and Criminal Law: Seeking a Responsible
Approach to an Inevitable Interchange, 22 V
T
.
L.
R
EV
. 263 (1997); Cheryl Hanna, Ganging Up on
Girls: Young Women and Their Emerging Violence, 41 A
RIZ
.
L.
R
EV
. 93, 115-16 (1999) (discussing
the relationship between female violence and the evolutionary psychology of mate selection); Owen
D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 C
AL
.
L.
R
EV
. 827 (1999); Randy Thornhill, The Biology of Human Rape, 39 J
URIMETRICS
J. 137, 138-39
(1999); Owen D. Jones, Realities of Rape: Of Science and Politics, Causes and Meanings, 86
C
ORNELL
L.
R
EV
. 1386 (2001) (reviewing R
ANDY
T
HORNHILL
&
C
RAIG
T.
P
ALMER
,
A
N
ATURAL
H
ISTORY OF
R
APE
:
B
IOLOGICAL
B
ASES OF
S
EXUAL
C
OERCION
(2001)).
21. See, e.g., E. Donald Elliott, The Tragi-Comedy of the Commons: Evolutionary Biology,
Economics and Environmental Law, 20 V
A
.
E
NVTL
.
L.J. 17, 20-21, 25 (2001) (arguing that
environmental law is better understood from the perspective of evolutionary biology, not
economics); Roger D. Masters, Environmental Pollution and Crime, 22 V
T
.
L.
R
EV
. 359, 359-60
(1997) (asserting that a study of evolutionary biology may “provide[] unique insights into the
environmental factors in human behavior”); William H. Rodgers, Where Environmental Law and
Biology Meet: Of Panda’s Thumbs, Statutory Sleepers, and Effective Law, 65 U.
C
OLO
.
L.
R
EV
. 25,
56 (1993) (“Applications of evolutionary modeling have been especially attractive to students of
environmental law, perhaps because they are familiar with the subtleties of stochastic change
endemic in the natural world.”).
22. See, e.g., Margaret F. Brinig & F.H. Buckley, Parental Rights and the Ugly Duckling, 1
J.L.
&
F
AM
.
S
TUD
. 41, 49-50 (1999) (claiming that evolutionary psychology can help explain why
certain children are abused); Owen D. Jones, Evolutionary Analysis in Law: An Introduction and
Application to Child Abuse, 75 N.C.
L.
R
EV
. 1117 (1997). See generally David J. Herring, Foster
Care Placement: Reducing the Risk of Sibling Incest, 37 U.
M
ICH
.
J.L.
R
EFORM
1145 (2004) (citing
studies that show that sexual aversion might be developed between non-siblings who live in close
proximity to one another during early childhood).
23. See, e.g., K
INGSLEY
R.
B
ROWNE
,
B
IOLOGY AT
W
ORK
:
R
ETHINKING
S
EXUAL
E
QUALITY
(2002); Kingsley R. Browne, Sex and Temperament in Modern Society: A Darwinian View of the
Glass Ceiling and the Gender Gap, 37 A
RIZ
.
L.
R
EV
. 971 (1995); Gertrud M. Fremling & Richard
A. Posner, Status Signaling and the Law, with Particular Application to Sexual Harassment, 147 U.
P
A
.
L.
R
EV
. 1069 (1999); Julie A. Seaman, Form and (Dys)Function in Sexual Harassment Law:
Biology, Culture, and the Spandrels of Title VII, 37 A
RIZ
.
S
T
.
L.J. 321 (2005).
24. See, e.g., J
OHN
H.
B
ECKSTROM
,
E
VOLUTIONARY
J
URISPRUDENCE
:
P
ROSPECTS AND
L
IMITATIONS ON THE
U
SE OF
M
ODERN
D
ARWINISM
T
HROUGHOUT THE
L
EGAL
P
ROCESS
(1989);
N
EUROSCIENCE AND THE
L
AW
:
B
RAIN
,
M
IND AND THE
S
CALES OF
J
USTICE
(Brent Garland ed.,
2004); T
HE
S
ENSE OF
J
USTICE
:
B
IOLOGICAL
F
OUNDATIONS OF
L
AW
(Roger D. Masters & Margaret
Gruter eds., 1992); B
RIAN
S
KYRMS
,
E
VOLUTION OF THE
S
OCIAL
C
ONTRACT
(1996); E. Donald
Elliott, The Evolutionary Tradition in Jurisprudence, 85 C
OLUM
.
L.
R
EV
. 38 (1985); Herbert
Hovenkamp, Evolutionary Models in Jurisprudence, 64 T
EX
.
L.
R
EV
. 645 (1985); Owen D. Jones &
Timothy H. Goldsmith, Law and Behavioral Biology, 105 C
OLUM
.
L.
R
EV
. 405 (2005); Owen D.
Jones, On the Nature of Norms: Biology, Morality, and the Disruption of Order, 98 M
ICH
.
L.
R
EV
.
2072 (2000); Bailey Kuklin, Evolution, Politics and Law, 38 V
AL
.
U.
L.
R
EV
. 1129 (2004); J.B.
Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society
and Its Practical Meaning for Democracy, 49 V
AND
.
L.
R
EV
. 1407 (1996); Amy L. Wax, Against
176 HOFSTRA LAW REVIEW [Vol. 35:171
rescue doctrine and the altruistic behavioral dispositions postulated by
evolutionary psychologists.
26
Having already introduced the doctrine, I
will next survey some of the basic principles of evolutionary
psychology, emphasizing components that may pertain to rescue
attempts: kin selection, reciprocal altruism, and sexual selection. I will
then turn to the New York rescue cases to see if they conform to the
predictions of evolutionary psychology. While the cases do not reveal
enough relevant information to draw detailed conclusions, in broad
outline they do somewhat support the predictions. This being the case, I
conclude by considering the use of evolutionary thinking to formulate
legal rights and remedies to implement adopted purposes of the law.
II. E
VOLUTIONARY
P
SYCHOLOGY
Evolutionary psychology seeks to “[u]nderstand[] the human
mind/brain mechanisms in evolutionary perspective.”
27
It focuses on
why the mind is designed as it is, how it is organized, the functions and
Nature—On Robert Wright’s The Moral Animal, 63 U.
C
HI
.
L.
R
EV
. 307 (1996) (book review).
25. See, e.g., Lawrence A. Frolik, The Biological Roots of the Undue Influence Doctrine:
What’s Love Got to Do With It?, 57 U.
P
ITT
.
L.
R
EV
. 841 (1996); Thomas Earl Geu, Chaos,
Complexity, and Coevolution: The Web of Law, Management Theory, and Law Related Services at
the Millennium, 65 T
ENN
.
L.
R
EV
. 925 (1998); Jack Hirshleifer, Economics From a Biological
Viewpoint, 20 J.L.
&
E
CON
. 1 (1977); Erin Ann O’Hara & Douglas Yarn, On Apology and
Consilience, 77 W
ASH
.
L.
R
EV
. 1121 (2002); Jeffrey E. Stake, Darwin, Donations, and the Illusion
of Dead Hand Control, 64 T
UL
.
L.
R
EV
. 705 (1990); Ryan M.T. Iwasaka, Note, From Chakrabarty
to Chimeras: The Growing Need for Evolutionary Biology in Patent Law, 109 Y
ALE
L.J. 1505
(2000). For an extensive list of books and law review articles that relate evolutionary psychology to
the law, see SEAL, Society for Evolutionary Analysis in Law, http://www.sealsite.org (last visited
Oct. 2, 2006).
26. There are other (overlapping) explanations for the altruism behind the rescue doctrine.
One is the cognitive decision model of bystander intervention, an arousal: cost-reward model. See
Barbara A. Fritzsche et al., To Help or Not to Help: Capturing Individuals’ Decision Policies, 28
S
OC
.
B
EHAV
.
&
P
ERSONALITY
561, 561-62 (2000). Social psychologists also advance: (1) the
normative approach, which “maintains that altruistic behavior is dictated by societal norms”; (2) the
social exchange approach whereby “an individual’s behavior is guided by the principle of
maximizing profits and minimizing costs in order to obtain the most profitable outcome in any
human interaction”; (3) the developmental approach, which “views altruism as a learned behavior”;
and (4) the socio-biological approach under which “an external threat to the existence of any society
or group increases both individuals’ hostility toward the threatening outgroup, and individuals’
solidarity within the group.” Viola C. Brady, Note, The Duty to Rescue in Tort Law: Implications of
Research on Altruism, 55 I
ND
.
L.J. 551, 556-59 (1980); see also M
ONROE
,
supra note 14, at 7-9
(discussing the sociocultural, economic, evolutionary, and psychological approaches to altruism).
Monroe dismisses or discounts these explanations, especially for daring rescues. See id. at 121-36
(sociocultural), 137-60 (economic), 161-78 (evolutionary), and 179-94 (psychological). But her
evolutionary analysis reveals limits to her understanding of its theory. See, e.g., id. at 143, 150, 152
(implying that natural selection requires conscious awareness of motives); id. at 152 (ignoring
indirect reciprocal altruism).
27. D
AVID
M.
B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
:
T
HE
N
EW
S
CIENCE OF THE
M
IND
3
(1999) [hereinafter
B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
].
2006] AN EVOLUTIONARY PERSPECTIVE 177
organized structures of its component parts, and its observable
behavioral response to environmental input, particularly the social
environment.
28
Of special relevance to the rescue doctrine are the first
and last foci. But to understand the psychology stemming from
evolution, one must start with the basic principles of evolution.
A. Principles of Evolution
The modern theory of evolution begins, of course, with Charles
Darwin and his seminal tract of 1859, The Origin of Species.
29
Gaining
insight from the observation of Malthus that organisms tend to reproduce
at a rate greater than can be supported by their environment,
30
he mused
over why some organisms survive and reproduce while others perish.
31
A key factor is luck. Lightning bolts, for example, are blind to the nature
of their bull’s-eyes.
32
Beyond luck, those organisms that have qualities
that allow them to better cope with their environment and produce
progeny are likely to leave more offspring than their lesser endowed
conspecifics. Similarly, the offspring are also likely to leave more
descendants themselves if they share the qualities of their parents that
made them successful. Hence, from this brief, nearly self-evident
scenario, one can identify the three main elements of the theory of
evolution: variation, differential fitness, and heritability.
33
Organisms
vary in their qualities: Some qualities increase the chances of leaving
descendants, and some of these qualities are passed on to the
descendants. This process usually works very slowly, taking many,
28. Id.
29. C
HARLES
D
ARWIN
,
T
HE
O
RIGIN OF
S
PECIES
, in T
HE
O
RIGIN OF
S
PECIES
&
T
HE
D
ESCENT
OF
M
AN
1 (6th ed. 1872) (New York, Modern Library, 1859).
30. See H
ELENA
C
RONIN
,
T
HE
A
NT AND THE
P
EACOCK
:
A
LTRUISM AND
S
EXUAL
S
ELECTION
FROM
D
ARWIN TO
T
ODAY
271 (1991) (“Darwin was also well primed to notice how widespread
superfecundity was from the writings of Thomas Malthus and several other authors whom Darwin
admired (some of them in the Malthusian tradition) . . . .”); M
ICHAEL
R
USE
,
T
HE
E
VOLUTION
W
ARS
:
A
G
UIDE TO THE
D
EBATES
40 (2000) (“Finally, after months of searching . . . Darwin read a
well-known political-economic tract . . . the Essay on a Principle of Population, by the Reverend
Thomas Robert Malthus . . . .”).
31. See R
USE
,
supra note 30, at 40-41.
32. Which is not to say that lightning is irrelevant to Darwinian evolution; organisms that
learn to avoid lightning are more likely to survive and reproduce. On the other hand, crashing
meteorites, as the dinosaurs found, are more difficult to endure.
33. See, e.g., B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 7 (“variation,
inheritance, and selection”); D
ANIEL
C.
D
ENNETT
,
C
ONSCIOUSNESS
E
XPLAINED
200 (1991);
S
TEPHEN
J
AY
G
OULD
, Prologue to B
ULLY FOR
B
RONTOSAURUS
:
R
EFLECTIONS IN
N
ATURAL
H
ISTORY
11, 11-13 (1991); Richard C. Lewontin, Adaptation, S
CI
.
A
M
.,
Sept. 1978, at 212, 220. For
different delineations of the elements, see, e.g., W
ILLIAM
H.
D
URHAM
,
C
OEVOLUTION
:
G
ENES
,
C
ULTURE
,
AND
H
UMAN
D
IVERSITY
21-22 (1991); S
TEVEN
R
OSE
,
L
IFELINES
:
B
IOLOGY
B
EYOND
D
ETERMINISM
181 (1997).
178 HOFSTRA LAW REVIEW [Vol. 35:171
many generations for significant change in the gene pool. Eventually, the
change, if beneficial under the circumstances, may lead to the creation of
a new species. Evolutionists estimate that nearly all the significant
distinguishing characteristics of humans, both physical and behavioral,
emerged up to millions of years ago while our ancestors were hunters
and gatherers on the African savanna.
34
The agent of this engine of evolution is the gene. In the well-known
modern metaphor, it is the “selfish” gene.
35
The gene is “selfish” in the
sense that it is more likely to endure through a line of organisms if it
transmits to them qualities that tend to preserve the gene. In this regard,
the gene is competing with other alleles, or variations of the gene, that
are also in the relevant gene pool.
36
A gene may have several alleles,
perhaps even many.
37
Those alleles that are better at securing the
reproductive success of their organisms are likely to spread in the gene
pool to the detriment of the others. But since the spread of an allele
generally turns on the success of its multigene organism, the allele
promotes its own endurance by cooperating with all the genes that
constitute the recipe for its organism.
38
Overall, the gene, or rather the
34. See, e.g., C
HRISTOPHER
B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
:
A
C
RITICAL
I
NTRODUCTION
12 (2000) [hereinafter B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
]
(the “environment
of evolutionary adaptedness”). See generally Charles Crawford, Environments and Adaptations:
Then and Now, in H
ANDBOOK OF
E
VOLUTIONARY
P
SYCHOLOGY
:
I
DEAS
,
I
SSUES
,
AND
A
PPLICATIONS
275 (Charles Crawford & Dennis L. Krebs eds., 1998) [hereinafter HANDBOOK].
On the other hand, “500 generations of intense crises-level selection can have a decided impact on
heritable characteristics.” J
AMES
L.
G
OULD
&
C
AROL
G.
G
OULD
,
S
EXUAL
S
ELECTION
:
M
ATE
C
HOICE AND
C
OURTSHIP IN
N
ATURE
254 (1997). With common estimates of human generations
varying between three and five per century, this “rapid” change still requires at least 10,000 years,
which was about when humans first began to leave the life of hunters and gatherers to turn to
agriculture. See J
ARED
D
IAMOND
,
G
UNS
,
G
ERMS
,
AND
S
TEEL
:
T
HE
F
ATES OF
H
UMAN
S
OCIETIES
115
(1997). Yet there is some evidence that selection has increased the natural immunity of humans to
tuberculosis during the last centuries of rapid urbanization and thus exposure. See M
ICHAEL
R
USE
,
T
AKING
D
ARWIN
S
ERIOUSLY
:
A
N
ATURALISTIC
A
PPROACH TO
P
HILOSOPHY
116 (2d ed. 1998)
[hereinafter R
USE
,
T
AKING
D
ARWIN
]. One wonders what the AIDS epidemic is doing to the African
gene pool. For rates of evolution, see generally G
EORGE
C.
W
ILLIAMS
,
N
ATURAL
S
ELECTION
:
D
OMAINS
,
L
EVELS
,
AND
C
HALLENGES
53-54, 64, 128-42 (1992) [hereinafter W
ILLIAMS
,
N
ATURAL
S
ELECTION
]
and for the view that human evolution is accelerating, see C
HRISTOPHER
W
ILLS
,
C
HILDREN OF
P
ROMETHEUS
:
T
HE
A
CCELERATING
P
ACE OF
H
UMAN
E
VOLUTION
(1998).
35. This metaphor was made famous by R
ICHARD
D
AWKINS
,
T
HE
S
ELFISH
G
ENE
(1976)
[hereinafter D
AWKINS
,
S
ELFISH
G
ENE
].
36. “In traditional genetic modeling, two genes in a gene pool are either allelic or not, and it is
only allelic genes that are clearly in competition with each other.” W
ILLIAMS
,
N
ATURAL
S
ELECTION
,
supra note 34, at 29. “Even a rather slight net advantage of one over the other will give
an almost deterministic shift in the relative frequencies of the two alleles.” Id.
37. See, e.g., W
ILLIAM
H.
C
ALVIN
,
A
B
RAIN FOR
A
LL
S
EASONS
:
H
UMAN
E
VOLUTION AND
A
BRUPT
C
LIMATE
C
HANGE
301 (2002) (“Perhaps 20 percent of your expressed genes have a
different allele on the other chromosome . . . .”); R
OBERT
P
LOMIN ET AL
.,
B
EHAVIORAL
G
ENETICS
:
A
P
RIMER
188 (2d ed. 1990) (“[I]t appears that at least a third of all loci are polymorphic.”).
38. Dawkins compares genes to rowers who must be able to cooperate with the other rowers
2006] AN EVOLUTIONARY PERSPECTIVE 179
allele, is competitive with respect to those that would displace it, but
cooperative with those that would advance it.
B. Altruism
The existence of altruism may be the most difficult problem
confronting evolutionary psychology.
39
For if the gene is selfish,
inducing its organism to advance only its own interests, how can one
account for altruism whereby the organism chooses to further the
interests of another?
40
There are two primary explanations for this
in the boat. See D
AWKINS
,
S
ELFISH
G
ENE
,
supra note 35, at 40-41. “To survive in the long run, a
gene must be a good companion.” R
ICHARD
D
AWKINS
,
R
IVER OUT OF
E
DEN
:
A
D
ARWINIAN
V
IEW
OF
L
IFE
5 (1995). See J
OHN
C.
A
VISE
,
T
HE
G
ENETIC
G
ODS
:
E
VOLUTION AND
B
ELIEF IN
H
UMAN
A
FFAIRS
107-11 (1998) (describing genes as “members of intraorganismal social groups”); B
OBBI
S.
L
OW
,
W
HY
S
EX
M
ATTERS
:
A
D
ARWINIAN
L
OOK AT
H
UMAN
B
EHAVIOR
19-20 (2000) (depicting
groups of genes as a “parliament [interacting to] produce complex effects”).
39. Wilson declares altruism as “the central theoretical problem of sociobiology.” E
DWARD
O.
W
ILSON
,
S
OCIOBIOLOGY
:
T
HE
N
EW
S
YNTHESIS
3 (1975); see also C
RONIN
,
supra note 30, at 253
(observing that altruism certainly “poses a problem for the Darwinian view of nature”); F
RANS
B.M.
DE
W
AAL
,
G
OOD
N
ATURED
:
T
HE
O
RIGINS OF
R
IGHT AND
W
RONG IN
H
UMANS AND
O
THER
A
NIMALS
117 (1996) [hereinafter
DE
W
AAL
,
G
OOD
N
ATURED
] (“To give the human conscience a
comfortable place within Darwin’s theory without reducing human feelings and motives to a
complete travesty is one of the greatest challenges to biology today.”); Neven Sesardic, Recent
Work on Human Altruism and Evolution, 106 E
THICS
128 (1995) (discussing the evolutionary
“paradox of altruism”). Altruism and cooperation have been deeply studied by evolutionary
biologists for several decades. See T
HE
A
DAPTED
M
IND
:
E
VOLUTIONARY
P
SYCHOLOGY AND THE
G
ENERATION OF
C
ULTURE
161 (Jerome H. Barkow et al. eds., 1992) [hereinafter A
DAPTED
M
IND
].
Arguably, the problem has been solved. See B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note
34, at 72 (“[T]he greatest triumph of modern evolutionary theory has been to explain altruism as an
epitome of natural selection at the level of the individual gene.”); Jack Wilson, The Accidental
Altruist: Biological Analogues for Intention, 17 B
IOLOGY
&
P
HIL
. 71, 72 (2002) [hereinafter
Wilson, Accidental Altruist] (noting that advances in understanding evolution and altruism
undermine the claim that altruism is a serious challenge to Darwinism). For an excellent history of
the theoretical problems and solutions, see Alexander Rosenberg, Altruism: Theoretical Contexts, in
T
HE
P
HILOSOPHY OF
B
IOLOGY
448 (David L. Hull & Michael Ruse eds., 1998) [hereinafter
P
HILOSOPHY OF
B
IOLOGY
]. See generally
P
HILOSOPHY OF
B
IOLOGY
, supra, Part VII (“Altruism”).
40. “An altruistic act is one that confers a benefit on someone at a cost to the other.” R
OBERT
T
RIVERS
,
S
OCIAL
E
VOLUTION
41 (1985) [hereinafter T
RIVERS
,
S
OCIAL
E
VOLUTION
]. See C.
D
ANIEL
B
ATSON
,
T
HE
A
LTRUISM
Q
UESTION
:
T
OWARD A
S
OCIAL
-P
SYCHOLOGICAL
A
NSWER
4-7 (1991);
M
ONROE
,
supra note 14, at 6-7; S
AMUEL
P.
O
LINER
&
P
EARL
M.
O
LINER
,
T
HE
A
LTRUISTIC
P
ERSONALITY
:
R
ESCUERS OF
J
EWS IN
N
AZI
E
UROPE
4-6 (1988); J
AMES
R.
O
ZINGA
,
A
LTRUISM
, at
xv, 5 (1999). But then, “[t]rue altruism, in the sense of giving more than one gets, should . . . never
evolve, because individuals demonstrating such behavior would be, by definition, less fit than their
selfish competitors.” D
AVID
P.
B
ARASH
,
S
OCIOBIOLOGY AND
B
EHAVIOR
79 (1977). See D
ANIEL
C.
D
ENNETT
,
F
REEDOM
E
VOLVES
195 (2003) [hereinafter D
ENNETT
,
F
REEDOM
E
VOLVES
]
(“Is an
altruist rather like a mule [which is sterile], a more or less chance coming together of features that is
perfectly possible but systematically unlikely to perpetuate itself?”). Yet this depends on the
definition of “true altruism.” “[A]ltruism, as used in everyday language, does not always have to
include danger or any kind of disadvantage. The philosopher Auguste Comte coined the term to
mean concern for the welfare of others.” E
RNST
M
AYR
,
T
HIS
I
S
B
IOLOGY
:
T
HE
S
CIENCE OF THE
L
IVING
W
ORLD
251 (1997). “The [altruistic] act is done for the benefit of another. Helping him is
180 HOFSTRA LAW REVIEW [Vol. 35:171
the aim, one’s own feelings are the inducement; one’s own disadvantage forms no part of the idea.”
Mary Midgley, Gene Juggling, in S
OCIOBIOLOGY
E
XAMINED
108, 115 (Ashley Montagu ed., 1980).
For an analysis of the “everyday notion of altruism,” see Philip Kitcher, Psychological Altruism,
Evolutionary Origins, and Moral Rules, 89 P
HIL
.
S
TUD
. 283, 284-88 (1998), and for an analysis of
some of the non-equivalent definitions in the literature, see Benjamin Kerr & Peter Godfrey-Smith,
Individualist and Multi-level Perspectives on Selection in Structured Populations, 17 B
IOLOGY
&
P
HIL
. 477, 485-92 (2002). One may distinguish psychological altruism, which looks to motives,
from evolutionary altruism, which looks to enhanced fitness of others at the actor’s expense. See
B
ATSON
, supra, at 33-34, 43-58; E
LLIOTT
S
OBER
, Did Evolution Make Us Psychological Egoists?,
in F
ROM A
B
IOLOGICAL
P
OINT OF
V
IEW
8, 8-9 (1994); Francisco J. Ayala, The Biological Roots of
Morality, 2 B
IOLOGY
&
P
HIL
. 235, 249 (1987) (comparing “biological” and “moral” altruism);
David C. Lahti, Parting with Illusions in Evolutionary Ethics, 18 B
IOLOGY
&
P
HIL
. 639, 641-42
(2003) (distinguishing “ostensible” versus “intentional” altruism); Wilson, Accidental Altruist,
supra note 39, at 72-77. See generally E
LLIOTT
S
OBER
&
D
AVID
S
LOAN
W
ILSON
,
U
NTO
O
THERS
:
T
HE
E
VOLUTION AND
P
SYCHOLOGY OF
U
NSELFISH
B
EHAVIOR
(1998); Alejandro Rosas,
Psychological and Evolutionary Evidence for Altruism, 17 B
IOLOGY
&
P
HIL
. 93 (2002); 10 S
OC
.
P
HIL
.
&
P
OL
’
Y
1-245 (1993) (issue on altruism). “To identify such emotions in humans [associated
with altruism] is difficult because in any given instance of altruistic-seeming behavior, the
motivational waters are likely to be muddied by other factors.” C
HRISTOPHER
B
OEHM
,
H
IERARCHY
IN THE
F
OREST
:
THE
E
VOLUTION OF
E
GALITARIAN
B
EHAVIOR
201 (1999). “These motivational
clouds have made it easy for many to claim that genuine human altruism can be dismissed—that
basically all altruistic-appearing behavior is reducible to individual genetic self-interest as
represented by inclusive fitness.” Id. at 202. Arguably, the general ethical principle that “‘ought’
implies ‘can,’” when combined with the psychological egoism that declares that humans are by
nature purely self-interested, leads to the conclusion that individuals would be motivationally
incapable of acting against their own self-interest, thereby putting some notions of altruism at risk.
See, e.g., William K. Frankena, Obligation and Ability, in P
HILOSOPHICAL
A
NALYSIS
:
A
C
OLLECTION OF
E
SSAYS
148, 148 (Max Black ed., 1963); see also J
ODY
S.
K
RAUS
,
T
HE
L
IMITS OF
H
OBBESIAN
C
ONTRACTARIANISM
96 (1993). For the conceptual problems regarding personal
psychological satisfaction from altruistic acts, see S
OBER
&
W
ILSON
, supra, at 2-3, 199-222. To
answer the question: “If evolutionary altruism is absent in nature, why should psychological
altruism be present in human nature?” they rely on the theory of group selection, a controversial
theory which they undertake to advance. Id. at 6-7; see also infra note 42. However, “[g]roup
selection favors within-group niceness and between-group nastiness.” S
OBER
&
W
ILSON
, supra, at
9. See K
EVIN
N.
L
ALAND
&
G
ILLIAN
R.
B
ROWN
,
S
ENSE AND
N
ONSENSE
:
E
VOLUTIONARY
P
ERSPECTIVES ON
H
UMAN
B
EHAVIOUR
265 (2003) (“Selection between cultural groups may
engender hostility and aggression to members of other groups, fear of strangers, slanderous
propaganda concerning outsiders, and so on.”). This is not auspicious for altruism towards strangers.
Monroe found that “[a]ltruism is not pursued for the psychic benefit it brings the altruist.” M
ONROE
,
supra note 14, at 143. Ruse, however, asserts that “today’s students of the evolution of social
behavior (‘sociobiologists’) argue that moral (literal) altruism might be [and is] one way in which
biological (metaphorical) ‘altruism’ could be achieved.” M. Ruse, Evolutionary Ethics: A Phoenix
Arisen, in I
SSUES IN
E
VOLUTIONARY
E
THICS
225, 229 (Paul Thompson ed., 1995).
“Literal, moral
altruism is a major way in which advantageous biological cooperation is achieved.” Id. In sum,
“while the specific evolved mechanisms underlying altruism are still not fully understood, there is
strong evidence that such mechanisms do exist . . . .” J
EROME
H.
B
ARKOW
,
D
ARWIN
,
S
EX
,
AND
S
TATUS
:
B
IOLOGICAL
A
PPROACHES TO
M
IND AND
C
ULTURE
282 (1989). However, despite
biological mechanisms supporting altruism, “the intensity and form of altruistic acts are to a large
extent culturally determined.” E
DWARD
O.
W
ILSON
,
I
N
S
EARCH OF
N
ATURE
82 (1996). Moreover,
there may be “a limited supply of altruism,” in which case “altruism is a kind of expendable
resource or capital.” R
USSELL
H
ARDIN
,
T
RUST AND
T
RUSTWORTHINESS
110 (2002). In sum,
“[g]enuine, or pure, altruism is an elusive concept, an ideal that always seems to evaporate just
when you get in position to reach out to grab it.” D
ENNETT
, F
REEDOM
E
VOLVES
, supra, at 194. For
2006] AN EVOLUTIONARY PERSPECTIVE 181
behavior: kin selection (inclusive fitness) and reciprocal altruism.
41
A
third explanation also warrants attention, especially with regard to the
rescue doctrine: sexual selection.
42
I consider these three in turn.
43
1. Kin Selection (Inclusive Fitness)
Success for the selfish gene is measured by the number of its copies
in the gene pool. An obvious way to increase copies is for the organism
to produce direct descendants that share the particular gene. But this is
an insightful analysis of altruism in the evolutionary context, see J
ANET
R
ADCLIFFE
R
ICHARDS
,
H
UMAN
N
ATURE
A
FTER
D
ARWIN
:
A
P
HILOSOPHICAL
I
NTRODUCTION
154-83 (2000) (Chapter 7:
“Selfish Genes and Moral Animals”).
41. See Paul Thompson, Introduction to I
SSUES IN
E
VOLUTIONARY
E
THICS
,
supra note 40, at
1, 32 (“Inclusive fitness and reciprocal altruism are the two dominant sociobiological explanations
of the existence of altruism.”).
42. “Three phenomena—kin selection, reciprocity, and sexual selection, or how we interact
with family, friends, and mates—lie at the heart of why we behave as we do in many
circumstances.” L
OW
,
supra note 38, at 33. There are other, often related, evolutionary explanations
for altruism and cooperation. For example, Frank argues for the benefits of personal reputation. “A
person’s reputation is meaningful on the assumption that, given impulse-control problems, people
with genuine moral sentiments are better able than others to act in their own interest.” R
OBERT
H.
F
RANK
,
P
ASSIONS
W
ITHIN
R
EASON
:
T
HE
S
TRATEGIC
R
OLE OF THE
E
MOTIONS
91 (1988). “People
with good reputations . . . can cooperate successfully with one another in ventures where cheating is
impossible to detect. Genuine altruism can emerge, in other words, merely on the basis of having
established a reputation for behaving in a prudent way.” Id. For more, see J
OHN
C
ARTWRIGHT
,
E
VOLUTION AND
H
UMAN
B
EHAVIOR
:
D
ARWINIAN
P
ERSPECTIVES ON
H
UMAN
N
ATURE
88-89 (2000)
(typing altruism as gene-level, vehicle-level, induced, and meme-led); S
OBER
&
W
ILSON
,
supra note
40; T
RIVERS
,
S
OCIAL
E
VOLUTION
, supra note 40, at 49-52; Christopher Boehm, The Natural
Selection of Altruistic Traits, 10 H
UM
.
N
ATURE
205 (1999) (proposing paths that depend on
pleiotropic effects or group selection); Christophe Boesch, Cooperative Hunting Roles Among Taï
Chimpanzees, 13 H
UM
.
N
ATURE
27 (2002) (“Cooperation between individuals may have evolved
via mutualism, kin selection, or reciprocity.”); Jack Hirshleifer, There Are Many Evolutionary
Pathways to Cooperation, 1 J.
B
IOECONOMICS
73, 86-89 (1999); Randolph M. Nesse, How Selfish
Genes Shape Moral Passions, in E
VOLUTIONARY
O
RIGINS OF
M
ORALITY
:
C
ROSS
-
DISCIPLINARY
P
ERSPECTIVES
227, 229-30 (Leonard D. Katz ed., 2000); Hudson Kern Reeve, Acting for the Good
of Others: Kinship and Reciprocity with Some New Twists, in H
ANDBOOK
, supra note 34,
at 43, 44
(basing mechanisms for costly human behavior on kinship, by-product mutualism—or
pseudoreciprocity—and behavioral reciprocity); John Strate, Altruism and Good Samaritan Law, in
H
UMAN
N
ATURE AND
P
UBLIC
P
OLICY
:
A
N
E
VOLUTIONARY
A
PPROACH
181, 188-91 (Albert Somit
& Steven A. Peterson eds., 2003) (theories include: kin selection theory; genetic similarity theory;
direct reciprocity; indirect reciprocity theory; and group selection); John Tooby & Leda Cosmides,
Friendship and the Banker’s Paradox: Other Pathways to the Evolution of Adaptations for
Altruism, in E
VOLUTION OF
S
OCIAL
B
EHAVIOUR
P
ATTERNS IN
P
RIMATES AND
M
AN
119 (W.G.
Runciman et al. eds., 1996); David Sloan Wilson & Kevin M. Kniffin, Multilevel Selection and the
Social Transmission of Behavior, 10 H
UM
.
N
ATURE
291 (1999); Wilson, Accidental Altruist, supra
note 39, at 72 (means are group selection, kin selection, and reciprocal altruism); Scott Woodcock
& Joseph Heath, The Robustness of Altruism as an Evolutionary Strategy, 17 B
IOLOGY
&
P
HIL
. 567
(2002) (analyzing the broad set of evolutionary mechanisms capable of supporting altruism).
43. “To anticipate a common objection raised by many social scientists and others, let me
grant at once that the intensity and form of altruistic acts are to a large extent culturally determined.
Human social evolution is obviously more cultural than genetic.” Edward O. Wilson, Human
Decency Is Animal, N.Y.
T
IMES
, Oct. 12, 1975, (Magazine), at 38, 41.
182 HOFSTRA LAW REVIEW [Vol. 35:171
not the only way. Because some other members of the species have the
same gene, unless it is a unique mutation, the selfish gene may also
succeed by assisting the conspecifics with the shared gene to leave their
own direct descendants.
44
The more closely an organism is related to a conspecific, the more
probable an identical copy of any one of its genes will be in the other
organism. Children inherit, on the average, half of their genes from each
parent, and share half of their genes with each sibling. They share one-
quarter of their genes with their aunts, uncles and grandparents, and one-
eighth with their first cousins, the overlap being determined by counting
each step up to the nearest common ancestor(s) and then down to the
relative in question. Because of this genetic commonality, the selfish
gene can promote its own success, to some extent, by promoting that of
its relatives.
45
In the words of a famous evolutionary biologist, a person
should be willing to sacrifice herself to save the lives of at least two
siblings or eight cousins.
46
This notion is known as kin selection, or,
more generally, inclusive fitness.
47
For kin selection to work directly, an organism must be able to
recognize its kin, and even the degree of kinship.
48
To work indirectly,
44. Conspecifics share most of the same genes, perhaps well over 99% of the roughly 20,000-
25,000 genes in humans. See, e.g., D
EAN
H
AMER
&
P
ETER
C
OPELAND
,
L
IVING WITH
O
UR
G
ENES
18
(1998) (noting that all humans have 99.9% of the same DNA); C
ARL
S
AGAN
&
A
NN
D
RUYAN
,
S
HADOWS OF
F
ORGOTTEN
A
NCESTORS
:
A
S
EARCH FOR
W
HO
W
E
A
RE
415 (1992) (“We humans
hold at least 99.9% of our DNA sequences in common.”); see also Nicholas Wade, Count of Human
Genes Drops Again, N.Y.
T
IMES
, Oct. 21, 2004, at A22 (20,000-25,000 human genes).
45. See J
OHN
M
AYNARD
S
MITH
,
D
ID
D
ARWIN
G
ET
I
T
R
IGHT
? 187 (1989) [hereinafter S
MITH
,
D
ID
D
ARWIN
] (“[A] gene which reduces the probability of survival of an individual carrying it but
produces a corresponding increase in the fertility or probability of survival of relatives can increase
in frequency.”). John Maynard Smith, The Evolution of Animal Intelligence, in M
INDS
,
M
ACHINES
AND
E
VOLUTION
63, 64 (Christopher Hookway ed., 1984) (“Animals do behave differently towards
different conspecifics, both in cooperative interactions and in mate selection, and the criteria used in
discrimination are correlated with actual genetic relationship.”).
46. See S
MITH
,
D
ID
D
ARWIN
,
supra note 45, at 187 (observing that J.B.S. Haldane
“announced that he was prepared to lay down his life for two brothers or eight cousins”).
“[C]ooperation among relatives is favored if, and only if, the benefit of the act multiplied by the
relatedness of the actors is greater than or equal to the costs.” L
EE
D
UGATKIN
,
C
HEATING
M
ONKEYS
AND
C
ITIZEN
B
EES
:
T
HE
N
ATURE OF
C
OOPERATION IN
A
NIMALS AND
H
UMANS
43-44 (1999)
(“Hamilton’s Rule”). See generally B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 222-49;
W.D.
H
AMILTON
,
N
ARROW
R
OADS OF
G
ENE
L
AND
11-82 (1996). For evidence of kin selection
among animals, see T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 169-202.
47. Technically, the two may be distinguished. “The overall ability of [an] individual . . . to
get her genes . . . into future generations is termed her inclusive fitness. The evolutionary process
that maximizes the ability to treat others according to their genetic similarity to oneself is termed kin
selection.” G
EORGE
C.
W
ILLIAMS
,
P
LAN AND
P
URPOSE IN
N
ATURE
44 (1996) [hereinafter
W
ILLIAMS
,
P
LAN AND
P
URPOSE
];
see also B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at
12-13.
48. While they cannot directly recognize kin, even very young children do well at identifying
2006] AN EVOLUTIONARY PERSPECTIVE 183
various mechanisms are available for kin discrimination, including
location, familiarity, phenotype matching and recognition alleles (“green
beards”).
49
For most animals, strong evidence of a close relationship
with others comes from finding themselves being raised in the same nest
or den, or being nurtured by the same conspecific. Especially in human
ancestral times, others in the vicinity, and those who are familiar, are
more likely to be related than distant strangers.
50
While one cannot
directly sense another’s genes, one can perceive other suggestive
qualities, such as similar physical characteristics.
51
Another identifying
mechanism is the “green beard altruism effect” labeled by Richard
Dawkins.
52
If a gene or genes for helping also produce a recognizable
feature, a “green beard” in Dawkins’s parlance, then altruism toward
other persons who also have green beards would likely be directed
toward relatives (who are disposed to reciprocate). As a heuristic or
rough guide for these mechanisms,
53
which is independent of conscious
motivation, a person should take risks to rescue others to the extent that
they are familiar or similar in appearance.
54
kinship relationships. See Lawrence A. Hirschfeld, Is the Acquisition of Social Categories Based on
Domain-Specific Competence or on Knowledge Transfer?, in M
APPING THE
M
IND
:
D
OMAIN
S
PECIFICITY IN
C
OGNITION AND
C
ULTURE
,
201, 220-22 (Lawrence A. Hirschfeld & Susan A.
Gelman eds., 1994).
49. C
ARTWRIGHT
,
supra note 42, at 80-81; see R.
P
AUL
S
HAW
&
Y
UWA
W
ONG
,
G
ENETIC
S
EEDS OF
W
ARFARE
:
E
VOLUTION
,
N
ATIONALISM
,
AND
P
ATRIOTISM
39 (1989) (spatial proximity,
early experience, and phenotypic matching); Charles Crawford, Psychology, in T
HE
S
OCIOBIOLOGICAL
I
MAGINATION
303, 310-11 (Mary Maxwell ed., 1991) [hereinafter
S
OCIOBIOLOGICAL
I
MAGINATION
] (spatial distribution, association, phenotype matching, and
recognition alleles).
50. See C
ARTWRIGHT
,
supra note 42, at 80 (“location” and “familiarity”). Once location and
familiarity clues no longer reliably identified kin, perhaps broader altruism eventuated. De Waal
speculates, “as so often, the impulse became dissociated from the consequences that shaped its
evolution, which permitted it to be expressed even when [genetic] payoffs were unlikely. The
impulse thus was emancipated to the point where it became genuinely unselfish.” F
RANS DE
W
AAL
,
T
HE
A
PE AND THE
S
USHI
M
ASTER
:
C
ULTURAL
R
EFLECTIONS BY A
P
RIMATOLOGIST
330 (2001).
51. “[M]any higher animals can recognize individuals by personal attributes, and this permits
some discrimination towards very close relatives, possibly to the distance of nephews and
grandchildren.” W.D.
H
AMILTON
, Selection of Selfish and Altruistic Behaviour in Some Extreme
Models, in N
ARROW
R
OADS OF
G
ENE
L
AND
,
supra note 46, at 198, 211. See C.R.
B
ADCOCK
,
T
HE
P
ROBLEM OF
A
LTRUISM
:
F
REUDIAN
-D
ARWINIAN
S
OLUTIONS
75 (1986) [hereinafter B
ADCOCK
,
P
ROBLEM OF
A
LTRUISM
]
(“phenotypic matching”); C
ARTWRIGHT
,
supra note 42, at 80-81
(“phenotype matching”).
52. See D
AWKINS
,
S
ELFISH
G
ENE
,
supra note 35, at 96-97.
53. “The heuristics used by humans, as we argue in this book, are adaptive strategies that have
evolved in response to the need to draw inferences and make decisions with bounded knowledge
and limited time.” G
ERD
G
IGERENZER ET AL
.,
S
IMPLE
H
EURISTICS
T
HAT
M
AKE
U
S
S
MART
171
(1999). Many of the behaviors sustained by the rough generalizations discussed elsewhere in this
Article may also be thought of as unconscious heuristics.
54. Relatedly, de Waal refers to the “similarity principle.” “Besides age and socioeconomic
status, the similarity principle in humans includes political preference, religion, ethnic background,
184 HOFSTRA LAW REVIEW [Vol. 35:171
But I overgeneralize by implying that all equally distant relatives
have the same value to the selfish gene under inclusive fitness. Because
the selfish gene is furthered by actions that increase the chances of
leaving more copies in the gene pool,
55
relatives who are unlikely to
accomplish or assist this are of lesser evolutionary value. For example,
parents who are beyond their reproductive years cannot add copies to the
gene pool, except to the extent that their efforts and resources advance
the reproductive success of relatives.
56
Kin selection would then lead to
IQ level, education, physical attractiveness, and height.”
DE
W
AAL
,
G
OOD
N
ATURED
,
supra note 39,
at 26. “[T]hese matching rules probably relate to prospects for cooperation: the more traits and
interests one shares with another person, the easier it will be to get along, and the broader the basis
for a give-and-take relationship.” Id. at 26-27. Moving down this road in the opposite direction, one
can see xenophobia and associated emotions at the far end. For example, Edward O. Wilson refers
to “our [dangerous] proneness toward ethnocentricity, xenophobia, [and] territoriality . . . .” Edward
O. Wilson, Comparative Social Theory, in 1 T
HE
T
ANNER
L
ECTURES ON
H
UMAN
V
ALUES
49, 68
(Sterling M. McMurrin ed., 1980); see also D
EL
T
HIESSEN
,
B
ITTERSWEET
D
ESTINY
:
T
HE
S
TORMY
E
VOLUTION OF
H
UMAN
B
EHAVIOR
296 (1996) (“The common evolutionary adaptations of strong
kinship ties were nepotism, ethnocentrism, tribalism, social bonding, obedience to authority,
nationalism, patriotism, territorially [sic], enemy thinking, xenophobia, jingoism, and reciprocal
social exchange.”). Critics of evolutionary psychology find these observations to be grounds for
condemnation. See, e.g., R
OSE
,
supra note 33, at 207 n.19; Joseph Alper et al., The Implications of
Sociobiology, in T
HE
S
OCIOBIOLOGY
D
EBATE
:
R
EADINGS ON
E
THICAL AND
S
CIENTIFIC
I
SSUES
333,
336 (Arthur L. Caplan ed., 1978); Martin Barker, Biology and Ideology: The Uses of Reductionism,
in A
GAINST
B
IOLOGICAL
D
ETERMINISM
9, 14-15, 26 (Steven Rose ed., 1982).
55. For the genetic component of altruism to increase in frequency, complex calculations are
required, including the assessment of: “(1) the value of any aid to its potential recipient . . . ; (2) the
probability of risk to the donor of the aid . . . ; and (3) the probability that the recipient of the aid
does indeed bear a copy of the gene for altruism.” B
ARKOW
,
supra note 40, at 48.
56. See id. at 50-52 (discussing the “fitness-investment potential” of a relative in need);
H
ENRY
P
LOTKIN
,
E
VOLUTION IN
M
IND
:
A
N
I
NTRODUCTION TO
E
VOLUTIONARY
P
SYCHOLOGY
86
(1997) (noting that being as altruistic towards parents as towards children is “biological nonsense
because our offspring (on average, of course) are biologically more fit than our parents, that is, they
are likely to survive longer and reproduce more offspring in the future”). The caveat is offered as an
explanation for the Darwinian puzzlement of why women live so many years beyond their
reproductive years. See D
AVID
F.
B
JORKLUND
&
A
NTHONY
D.
P
ELLEGRINI
,
T
HE
O
RIGINS OF
H
UMAN
N
ATURE
:
E
VOLUTIONARY
D
EVELOPMENTAL
P
SYCHOLOGY
240-41 (2002); Gillian
Ragsdale, Grandmothering in Cambridgeshire, 1770-1861, 15 H
UM
.
N
ATURE
301, 301-02 (2004)
(referring to the “[m]any theories [that] have been proposed to account for the human female post-
reproductive life span”). Under the “grandmother hypothesis,” older women who provide assistance
to their daughters’ children promoted the fitness of their descendants, thereby leading to selection
for longevity. See, e.g., Mhairi A. Gibson & Ruth Mace, Helpful Grandmothers in Rural Ethiopia:
A Study of the Effect of Kin on Child Survival and Growth, 26 E
VOLUTION
&
H
UM
.
B
EHAV
. 469
(2005); Kristen Hawkes et al., The Grandmother Hypothesis and Human Evolution, in A
DAPTATION
AND
H
UMAN
B
EHAVIOR
:
A
N
A
NTHROPOLOGICAL
P
ERSPECTIVE
237 (Lee Cronk et al. eds., 2000);
Kim Hill & A. Magdalena Hurtado, The Evolution of Premature Reproductive Senescence and
Menopause in Human Females: An Evaluation of the “Grandmother Hypothesis”, in H
UMAN
N
ATURE
118 (Laura Betzig ed., 1997). Older men may also be of reproductive value by passing
along accumulated knowledge. See R
ICHARD
A.
P
OSNER
,
A
GING AND
O
LD
A
GE
26-29 (1995). One
would think that older men could also provision descendants (as gatherers, if not hunters) and older
women could also teach the younger.
2006] AN EVOLUTIONARY PERSPECTIVE 185
the investment in relatives not only to the degree they are related,
57
and
the costs to the donor, but also to the extent of their prospects for
reproduction and assistance of kin.
58
Insofar as kin selection drives the rescue doctrine, the following
prediction would obtain as a first approximation: the closer the relation
of the rescuee, the greater the risk that is “rational” to assume,
59
and
hence the more the law should protect the risky undertaking. Since the
degree of relationship may be difficult to discern, as a surrogate the law
might encourage rescues of persons to the extent they are familiar or
similar to the rescuer. By refining these predictions to take into account
the reproductive potential of the rescuee, one would expect the doctrine
to protect greater risk for saving kin in their prime procreative years than
those who are beyond them or the young who may not reach them.
60
The
57. “[R]espondents in both the United States and Japan were surveyed about how they would
likely respond if they could only save one of three [related] people in a burning house. . . . Once
again, the closer the genetic relationship, the greater the reported inclination to help.” D
AVID
P.
B
ARASH
,
R
EVOLUTIONARY
B
IOLOGY
:
T
HE
N
EW
,
G
ENE
-
CENTERED
V
IEW OF
L
IFE
71 (2002) (citing
Eugene Burnstein et al., Some Neo-Darwinian Decision Rules for Altruism: Weighing Cues for
Inclusive Fitness as a Function of the Biological Importance of the Decision, 67 J.
P
ERSONALITY
&
S
OC
.
P
SYCHOL
. 773 (1994)). A group of researchers who questioned people about who they would
rescue from a burning building found “[t]hat women were helped a little more often than men; that
the young were helped more often than the old; that closer kin . . . were helped more often than
remoter kin . . .; and that any tendency to help ‘acquaintances’ was slight.” Laura Betzig,
Introduction: People Are Animals, in H
UMAN
N
ATURE
,
supra note 56, at 1, 3.
58. See, e.g., Kermyt G. Anderson, Relatedness and Investment in Children in South Africa,
16 H
UM
.
N
ATURE
1, 2 (2005). Hamilton’s rule offered the basic insight into kin selection. It “is that
natural selection favors mechanisms for altruism when c < rb[.] In this formula, c is the cost to the
actor, r is the degree of genetic relatedness between actor and recipient, and b is the benefit to the
recipient.” B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 224. For the opinion that the
costs and benefits of kin altruism are poorly studied, see P
AUL
R.
E
HRLICH
,
H
UMAN
N
ATURES
:
G
ENES
,
C
ULTURES
,
AND THE
H
UMAN
P
ROSPECT
312 (2000); S
HAW
&
W
ONG
,
supra note 49, at 39-
40. “Indeed, careful psychological experiments suggest that much of human helping behavior is
divorced from any real prospect of reproductive or other reward.” E
HRLICH
, supra. But this may be
due to the fact that altruistic tendencies accrued in ancestral environments when most encountered
conspecifics were relatives, see infra notes 68 and 147, or because of other evolutionary misfires,
see infra note 135 and accompanying text.
59. Of the 116 acts of heroism recognized by the Carnegie Hero Fund Commission between
1989 and 1995 that resulted in the death of the rescuer, thirty-two percent of them were attempts to
rescue biological relatives. See Ronald C. Johnson, Attributes of Carnegie Medalists Performing
Acts of Heroism and of the Recipients of These Acts, 17 E
THOLOGY
&
S
OCIOBIOLOGY
355, 357
(1996).
60. “If altruism has a basis in kinship selection, then rescuers should be more likely to risk
their lives for younger rather than for older biological relatives.” Id. at 360. “This is the case [among
Carnegie heroes], with 52 younger versus 6 older biological relatives rescued, but may be
explainable in terms of the greater needs of younger relatives (usually young children) rather than
greater willingness to take risks on the part of the rescuer.” Id. Beckstrom refers to “a study in
which grandparents were asked ‘who you would save’ and were then required to choose between
children and grandchildren. Children (related by one-half) were preferred until they were beyond
the reproductive age, at which point there was a tendency to prefer grandchildren (related by one-
186 HOFSTRA LAW REVIEW [Vol. 35:171
doctrine would also favor the rescue of those who are supportive of the
rescuer’s, or her kin’s, reproductive success. Greater refinement would
factor in other considerations that pertain to the rescuee’s mating and
aid-giving prospects, some of them morally distasteful, such as her
attractiveness, personality, intelligence, virtue, education, wealth, and
social status.
61
Yet we should not expect the law to draw lines with such
subtlety especially in light of some of our espoused community values,
which include egalitarianism and unselfishness. But even if the law fails
in principle to take into account the nuances of the rescuer’s interests
under kin selection, we would expect the rescuer to do so, consciously or
otherwise; for natural selection is unkind to those who neglect their
genetic interests. Consequently, the facts of the actual cases under the
rescue doctrine should reflect the evolutionary forces of kin selection to
the extent that other, nonparallel factors are absent. One of these
possible other factors, reciprocal altruism, is taken up next.
2. Reciprocal Altruism
Evolutionarily beneficial risk taking also reaches beyond kin.
Reciprocal altruism is the notion that reproductive success can be
improved by mutual support, even among nonrelatives.
62
For example,
fourth).” J
OHN
H.
B
ECKSTROM
,
S
OCIOBIOLOGY AND THE
L
AW
:
T
HE
B
IOLOGY OF
A
LTRUISM IN THE
C
OURTROOM OF THE
F
UTURE
112 (1985) (citing D
ANIEL
G.
F
REEDMAN
,
H
UMAN
S
OCIOBIOLOGY
115 (1979)). Even the perception of risk is affected by various factors, some of which produce an
evolutionary advantage. “For example, if children are at risk, then the perception of risk is higher
than an analyst would calculate.” Peter Strahlendorf, Traditional Legal Concepts from an
Evolutionary Perspective, in T
HE
S
ENSE OF
J
USTICE
:
B
IOLOGICAL
F
OUNDATIONS OF
L
AW
128, 147
(Roger D. Masters & Margaret Gruter eds., 1992). “A study of fantasy dilemmas . . . found results
indicating that when decisions involve life or death they are made to benefit close kin ahead of
distant kin, young over old, healthy over sick, wealthy over poor, and premenopausal over
postmenopausal females.” L
EWIS
P
ETRINOVICH
,
H
UMAN
E
VOLUTION
,
R
EPRODUCTION
,
AND
M
ORALITY
174 (1995). In non-life-threatening situations, propriety dominates kin selection, since
“the young and old are helped rather than those of intermediate age, the sick rather than the healthy,
poor rather than wealthy, and females rather than males.” Id. at 174-75.
61. The characteristics of males that are attractive to females, and vice versa, are discussed in
greater detail the section on sexual selection. See discussion infra Part II.B.3.
62. The notion does not refer to strong altruism since the “altruistic” party expects to receive a
reciprocal benefit. In the seminal article on reciprocal altruism, Trivers defines “altruistic
behavior . . . as behavior that benefits another organism, not closely related, while being apparently
detrimental to the organism performing the behavior, benefit and detriment being defined in terms
of contribution to inclusive fitness.” Robert L. Trivers, The Evolution of Reciprocal Altruism, 46 Q.
R
EV
.
B
IOLOGY
35, 35 (1971) [hereinafter Trivers, Reciprocal Altruism]. “Approximate synonyms
for reciprocal altruism include cooperation, reciprocation, and social exchange.” B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 254. See B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
, supra note 34, at 102-06;
B
ADCOCK
,
P
ROBLEM OF
A
LTRUISM
,
supra note 51, at 37-
47; T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 361-94; Sarah F. Brosnan & Frans B.M. de
Waal, A Proximate Perspective on Reciprocal Altruism, 13 H
UM
.
N
ATURE
129 (2002)
(distinguishing three types of reciprocity with increasing cognitive complexity: symmetry-based,
2006] AN EVOLUTIONARY PERSPECTIVE 187
the farmer who raises a bumper crop one year may improve her long
term prospects by giving the excess to less fortunate neighbors in the
expectation that they will reciprocate when their situations are
reversed.
63
In historical times, a contract could legalize this expectation,
but reciprocal altruism does not require the long arm of the law.
Informal cooperation will do, but, as in the prisoner’s dilemma, the risk
of defection is a major hurdle.
64
There are three preconditions for reciprocal altruism.
65
First, giving
must be somewhat costly and receiving must be beneficial. If our farmer
above has such a bumper crop that some of it will just spoil anyway, or
the neighbors also have all they need, giving them the excess is not
altruistic. Second, there must be a lapse of time between the two acts.
Otherwise, the mutual behavior is merely concurrent cooperation or
attitudinal and calculated reciprocity); Trivers, Reciprocal Altruism, supra, at 35. Some are
offended by the implications of reciprocal altruism. See, e.g., O
ZINGA
,
supra note 40, at 10
(“Reciprocal altruism is simply another way in which the significance of human sharing behavior is
denigrated.”). Ozinga has the same view of altruism driven by kin selection. See id. at 12 (“the
argument of small minds”). But de Tocqueville found Americans to be proud of their enlightened
self-interested behavior. “The Americans . . . enjoy explaining almost every act of their lives on the
principle of self-interest properly understood. It gives them pleasure to point out how an enlightened
self-love continually leads them to help one other . . . .” 2 A
LEXIS DE
T
OCQUEVILLE
,
D
EMOCRACY
IN
A
MERICA
146 (Henry Reeve trans., 1st Schocken ed. 1961) (1834), quoted in J
ON
E
LSTER
,
A
LCHEMIES OF THE
M
IND
:
R
ATIONALITY AND THE
E
MOTIONS
359 (1999).
63. Reciprocal altruism has been found among certain vampire bats that must feed on blood
every sixty hours or so. Those that are needy are fed by even unrelated neighbors in the caves to
which they retire. See B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 257-59 (“[T]he closer
the association between the bats—the more often they were sighted together—the more likely they
were to give blood to each other.”); C
RONIN
,
supra note 30, at 258 (“[I]n such transactions [among
female vampire bats], there is plenty of scope for Tit-for-Tat-like cooperation.”);
L
OW
,
supra note
38, at 152-53 (“Perhaps this system is facilitated by the fact that the same physical amount of blood
makes a smaller ‘hours-to-starvation’ difference to a well-fed bat compared to a hungry bat: the cost
of helping is low, and the benefit to being helped is great.”); T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra
note 40, at 363-66.
Reciprocity has also been found among baboons, chimpanzees, ravens, and blue
jays. See, e.g., B
USS
, E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 259-61; T
RIVERS
, S
OCIAL
E
VOLUTION
,
supra note 40, at 368-82; Craig B. Stanford, The Ape’s Gift: Meat-Eating, Meat-
Sharing, and Human Evolution, in T
REE OF
O
RIGIN
:
W
HAT
P
RIMATE
B
EHAVIOR
C
AN
T
ELL
U
S
A
BOUT
H
UMAN
S
OCIAL
E
VOLUTION
95, 113 (Frans B.M. de Waal ed., 2001); S. Milius, Trust That
Bird?: A Bit of Future-Think Lets Jays Cooperate, S
CI
.
N
EWS
, Dec. 14, 2002, at 373. But beyond
these instances, “three decades of intense research have produced almost no clear examples of
reciprocity in animals . . . .” G
EOFFREY
M
ILLER
,
T
HE
M
ATING
M
IND
301 (2000). See Brosnan & de
Waal, supra note 62, at 132 (“Examples of reciprocity are scarce among nonhuman animals because
demonstrating it is difficult.”). For explanations, see Peter Hammerstein, Why Is Reciprocity So
Rare in Social Animals? A Protestant Appeal, in G
ENETIC AND
C
ULTURAL
E
VOLUTION OF
C
OOPERATION
83 (Peter Hammerstein ed., 2003).
64. “The prisoner’s dilemma mimics reciprocal altruism . . . .” T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 390. For the application of game theory to the evolution of social exchange,
including reciprocal altruism, see Leda Cosmides & John Tooby, Cognitive Adaptations for Social
Exchange, in A
DAPTED
M
IND
,
supra note 39, at 163, 170-79.
65. See
DE
W
AAL
,
G
OOD
N
ATURED
,
supra note 39, at 24.
188 HOFSTRA LAW REVIEW [Vol. 35:171
trade, which does not require the actor to trust the other to reciprocate
later. Third, the giving must be conditioned on later receiving, if needed.
Simply donating some of the bumper crop to a needy person may be
altruistic in a strong sense, but it is not reciprocal altruism.
66
These three preconditions require sophisticated cognitive abilities
to facilitate the cooperative understandings and avoid cheating.
“Humans must be able to recognize other individuals; remember the
history of interactions with them; communicate values, desires, and
needs to others; recognize them in others; and represent the costs and
benefits of a variety of items of exchange.”
67
Frequent interactions
help.
68
What is more, “[i]f reciprocal altruism is selected for, and
cheating selected against, then the former should be associated with
feeling good and the latter with feeling bad; cheating should also be
associated with feeling afraid since cheaters will, if caught, be
punished.”
69
The reciprocation for the original act need be neither symmetrical
66. “Reciprocal altruism differs from other patterns of cooperation in that it is fraught with
risk, depends on trust, and requires that individuals whose contributions fall short be shunned or
punished, lest the whole system collapse.” Id.
67. B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 264 (citing Cosmides & Tooby,
supra note 64, at 163); see R
ICHARD
D.
A
LEXANDER
,
T
HE
B
IOLOGY OF
M
ORAL
S
YSTEMS
95 (1987)
[hereinafter A
LEXANDER
,
B
IOLOGY
]
(“Systems of indirect reciprocity as expressed in humans
require memory, consistency across time, the application of precedents, and persistent and widely
communicated concepts of right and wrong. They become, automatically, what I am here calling
moral systems.”) (citation omitted); Henk de Vos & Evelien Zeggelink, Reciprocal Altruism in
Human Social Evolution: The Viability of Reciprocal Altruism with a Preference for “Old-Helping-
Partners”, 18 E
VOLUTION
&
H
UM
.
B
EHAV
. 261, 262-63 (1997) (listing capacities and conditions
for reciprocal altruism). See generally Cosmides & Tooby, supra note 64. In one of many
supporting studies, de Waal presents evidence “that the reciprocal exchange of social services
among chimpanzees (Pan troglodytes) rests on cognitive abilities that allow current behavior to be
contingent upon a history of interaction.” Frans B.M. de Waal, The Chimpanzee’s Service Economy:
Food for Grooming, 18 E
VOLUTION
&
H
UM
.
B
EHAV
. 375, 375 (1997).
68. See
DE
W
AAL
,
G
OOD
N
ATURED
,
supra note 39, at 24 (“Reciprocal altruism does not work
for individuals who rarely meet or who have trouble keeping track of who has done what for whom:
it requires good memories and stable relationships, such as are found in the primates.”); T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, 361 (“Where individuals interact infrequently, this narrow
strategy [of cheating] is expected to predominate, but where interactions are frequent, a cheater will
suffer lost future altruism if altruists respond to non-reciprocation by withholding future aid.”).
Frequency of interaction also reduces the complication of drawing “interest” during a time lag
before reciprocation. “For longer intervals, in order to be repaid precisely, the initial altruist must
receive more in return than he himself gave.” Trivers, Reciprocal Altruism, supra note 62, at 46.
69. M
ARC
D.
H
AUSER
,
W
ILD
M
INDS
:
W
HAT
A
NIMALS
R
EALLY
T
HINK
237 (2000). Because of
this need for sophisticated cognitive skills, Hauser notes that not many animals have the
wherewithal, and puzzles remain. See id. at 238-39. But Axelrod asserts that even bacteria have the
needed abilities. See R
OBERT
A
XELROD
,
T
HE
E
VOLUTION OF
C
OOPERATION
174 (1984) [hereinafter
A
XELROD
,
E
VOLUTION
] (After listing the preconditions for reciprocal altruism, Axelrod notes that
“these requirements for recognition and recall are not as strong as they might seem. Even bacteria
can fulfill them . . . .”).
2006] AN EVOLUTIONARY PERSPECTIVE 189
nor direct. The practice will not collapse simply because, say, a person
rescued from drowning may not be in a position to later save her rescuer
from drowning.
70
First, this rescuee could later reciprocate by, perhaps,
saving the rescuer from starvation. Second, the rescuee need not
personally aid the rescuer at all if another person undertakes the task out
of gratitude or with the expectation that logs might roll.
71
Reciprocal
altruism can work indirectly: the drowning rescuee, say, feeding a
starving person, who pushes an inattentive person off railroad tracks,
who gives another person emergency first aid, who pulls the original
rescuer, or her child, from a house fire.
72
A common practice of mutual
aid sustains reciprocal altruism. This indirect reciprocity, however, is
subject to cheating, especially among those who interact infrequently
when risks are substantial, and thus is difficult to evolve.
73
Under these
conditions, “expensive helping behaviors may occur only or primarily
70. Cf. R
OSE
,
supra note 33, at
202 (questioning the likelihood of the rescuee being in a
position to later save the rescuer from drowning).
71. Even if the rescuer perishes during the rescue, “through his close kin, [he] may be
compensated . . . . An individual who dies saving a friend, for example, may have altruistic acts
performed by the friend to the benefit of his offspring.” Trivers, Reciprocal Altruism, supra note 62,
at 52.
72. See A
LEXANDER
,
B
IOLOGY
,
supra note 67, at 84 (reciprocal benefits to relatives);
B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
, supra note 34, at
105-06 (“Multi-party interactions”);
L
OW
,
supra note 38, at 152 (“A helps B at some cost, B helps C, C helps A, and so on.”); Trivers,
Reciprocal Altruism, supra note 62, at 39. A mathematical model of cooperation based on indirect
reciprocity has found it to be stable despite the threat of defectors if individuals adequately monitor
the prior cooperative behavior of others. See B
ADCOCK
, E
VOLUTIONARY
P
SYCHOLOGY
,
supra note
34, at 100-02. “Systems of indirect reciprocity may be institutionalized in social roles as divisions of
labor . . . . In effect, people may implicitly negotiate deals in which they routinely make certain
kinds of contributions to their groups in exchange for contributions others make to them.” Dennis L.
Krebs, The Evolution of Moral Behaviors, in H
ANDBOOK
,
supra note 34, at 337, 345.
73. “Indirect systems, however, are hard to evolve, for at any moment, the balance of costs
and benefits is likely to be uneven (A has helped B, at some cost; B has not yet helped anyone). If
individuals interact only rarely or occasionally, such indirect reciprocity is extremely vulnerable to
cheating: perhaps you help me, but we may never again interact and I never reciprocate.” L
OW
,
supra note 38, at 152. Both points are puzzling. First, one would think that opting into a practice of
reciprocal altruism, direct or indirect, is like buying an insurance policy against future emergencies.
Simply because one never collects on the policy does not mean one does not get what was paid for,
i.e., the security of knowing one is more likely to be rescued if needed. See J
OHN
R
AWLS
,
A
T
HEORY OF
J
USTICE
338 (1971) (observing that Kant suggested that the ground for proposing the
duty of mutual aid is that, “[w]hile on particular occasions we are required to do things not in our
own interests, we are likely to gain on balance at least over the longer run under normal
circumstances”); Ken Binmore, A Utilitarian Theory of Political Legitimacy, in E
CONOMICS
,
V
ALUES
,
AND
O
RGANIZATION
101, 116 (Avner Ben-Ner & Louis Putterman eds., 1998) (“[T]ribes
that implicitly internalized [the failure to see the insurance contract aspect of reciprocal altruism]
would eventually lose the evolutionary race.”). Second, even if particular individuals interact only
rarely, it would seem that indirect reciprocal altruism would work so long as rescuees would later
aid others in distress. But this last proviso is a sticking point. One of the main inducements to
deliver aid when needed may be negative social sanctions, which a prior rescuee who is a stranger
may not face.
190 HOFSTRA LAW REVIEW [Vol. 35:171
among kin, or individuals may mirror the behavior of others, for
example, in a tit-for-tat manner: I’ll start by cooperating, but if you
default, I will, too.”
74
As for all cooperative endeavors, freeriding is a risk. And as studies
of the prisoner’s dilemma make clear, cooperation for the duration of an
extended interaction runs up against the urges of immediate, self-
interested behavior.
75
“Yes, Jill rescued me from drowning last year, but
I would rather not put myself at risk by attempting to save her now from
drowning, especially since no one else is around to see.” “While Bea,
who kept me going last year when my own crop failed, herself raised a
poor crop this season, I sure want to use my own excess production this
year to buy a new tractor, so I’ll make excuses and only give her a
little.”
76
74. L
OW
,
supra note 38, at 153; see also R
OBERT
W
RIGHT
,
T
HE
M
ORAL
A
NIMAL
:
T
HE
N
EW
S
CIENCE OF
E
VOLUTIONARY
P
SYCHOLOGY
200-02 (1994). Hence, it has been argued that “simple,
clear-cut, direct behavioral reciprocity is probably far rarer in the real world than we realized.”
L
OW
, supra note 38, at 153. Even a tit-for-tat strategy, though generally a very robust one, is
vulnerable to such things as mistakes and imperfect information. See A
XELROD
,
E
VOLUTION
,
supra
note 69, at 175-77; L
OW
, supra, at 153. Memory of prior interactions between the two parties can
solve these problems, but this does not help indirect reciprocal altruism. See id. In the end, mainly
“[k]in, short-term mutualists, [and] long-term repeated interactors are likely to cooperate.” Id. at
154. See Robert M. Sapolsky, Cheaters and Chumps: Game Theorists Offer a Surprising Insight
into the Evolution of Fair Play, N
AT
.
H
IST
.,
June 2002, at 20, 24 (“So game theory shows that at
least three things facilitate the emergence of cooperation: playing with relatives or pseudorelatives
[i.e., those who feel related], repeated rounds with the same individual, and open-book play [in
which players know of their opponent’s prior gaming behavior].”). The Goulds argue that a tit-for-
tat culture could evolve once two individuals likely to interact frequently adopt the strategy. “By
focusing their interactions on one another, they acquire more fitness than their selfish colleagues. As
a result, the genes that program reciprocal altruism will spread and may take over the group and
spread from there to the population at large.” G
OULD
&
G
OULD
,
supra note 34, at 246.
Once the decision is made to help another, then one must decide how much help to give,
or in the context of the rescue doctrine, how much risk to take. Consistent with the predictions of
reciprocal altruism (and kin selection), among the Carnegie medal winners between 1989 and 1995,
“[d]eaths were more likely to occur in rescuers of persons they knew than of those they did not
know.” Johnson, supra note 59, at 355.
75. “What the Prisoner’s Dilemma captures so well is the tension between the advantages of
selfishness in the short run versus the need to elicit cooperation from the other player to be
successful in the longer run.” R
OBERT
A
XELROD
,
T
HE
C
OMPLEXITY OF
C
OOPERATION
:
A
GENT
-
BASED
M
ODELS OF
C
OMPETITION AND
C
OLLABORATION
6 (1997) [hereinafter A
XELROD
,
C
OMPLEXITY
].
See generally W
ILLIAM
P
OUNDSTONE
,
P
RISONER
’
S
D
ILEMMA
(1992).
76. Trivers distinguishes between gross cheating, in which “the cheater fails to reciprocate at
all and the altruist suffers the cost of whatever altruism has been dispensed without compensating
benefits,” and subtle cheating, which “involves reciprocating but always attempting to give less than
one was given, or more precisely, to give less than the partner would give if the situation were
reversed.” T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 387.
When multiple exchanges involving
diverse goods in varying circumstances take place over a long period, “the problem of computing
the relevant totals, detecting imbalances, and deciding whether they are due to chance or to small-
scale cheating is a difficult one.” Id. See Trivers, Reciprocal Altruism, supra note 62, at 46 (using
similar language). Because “[t]he human altruistic system is a sensitive, unstable one . . . a degree of
2006] AN EVOLUTIONARY PERSPECTIVE 191
Prime mechanisms to combat freeriding tendencies are norms,
social mores, religious and moral feelings, and emotions in general.
77
Those who fail to reciprocate may experience shame or guilt,
78
or suffer
ostracism or moralistic aggression from indignant onlookers.
79
Gratitude,
sympathy and personal satisfaction are also among those emotions that
effectively reduce the cost of reciprocation.
80
Still, the norms, emotions, and practices of mutual aid are not
enough to assure reciprocal altruism. Various other factors come into
play. The stranger who is just passing through is unlikely to be in a
position to reciprocate to anyone in the community, even if she is so
disposed because, say, the rescue generates warm emotions in her.
81
The
person with limited resources, physical or material, may be unable to
cheating is adaptive, [and] natural selection will rapidly favor a complex psychological system in
each individual regulating both his own altruistic and cheating tendencies and his responses to these
tendencies in others.” Id. at 48. See William Michael Brown & Chris Moore, Is Prospective Altruist-
Detection an Evolved Solution to the Adaptive Problem of Subtle Cheating in Cooperative
Ventures?: Supportive Evidence Using the Wason Selection Task, 21 E
VOLUTION
&
H
UM
.
B
EHAV
.
25, 25 (2000) (“[I]t is argued that non-kin altruism may be an evolutionarily stable strategy if
altruists can detect one another and form mutually beneficial social support networks.”).
77. See, e.g., J
ON
E
LSTER
,
N
UTS AND
B
OLTS FOR THE
S
OCIAL
S
CIENCES
113 (1989)
(discussing emotions); J
OHN
M
AYNARD
S
MITH
,
T
HE
T
HEORY OF
E
VOLUTION
199 (3d ed. 1975)
(discussing norms); Robert H. Frank, Economics, in S
OCIOBIOLOGICAL
I
MAGINATION
,
supra note
49, at 91, 96-102 (discussing emotions); Trivers, Reciprocal Altruism, supra note 62, at 52
(discussing norms). For a more detailed discussion of the normative and emotional mechanisms
behind reciprocal altruism, see Bailey Kuklin, The Morality of Evolutionarily Self-Interested
Rescues (unpublished manuscript, on file with the Hofstra Law Review).
78. See, e.g., B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 34, at 104; A
NTONIO
R.
D
AMASIO
,
D
ESCARTES
’
E
RROR
:
E
MOTION
,
R
EASON AND THE
H
UMAN
B
RAIN
176 (1994); E
LSTER
,
supra note 77, at 113; V
ICTOR
S.
J
OHNSTON
,
W
HY
W
E
F
EEL
:
T
HE
S
CIENCE OF
H
UMAN
E
MOTIONS
84 (1999); S
TEVEN
P
INKER
,
H
OW THE
M
IND
W
ORKS
404 (1997); Trivers, Reciprocal Altruism,
supra note 62, at 50.
79. See, e.g., A
XELROD
,
C
OMPLEXITY
,
supra note 75, at 55; B
ADCOCK
,
P
ROBLEM OF
A
LTRUISM
,
supra note 51, at 39; Robert Boyd & Peter J. Richerson, Punishment Allows the
Evolution of Cooperation (or Anything Else) in Sizable Groups, 13 E
THOLOGY
&
S
OCIOBIOLOGY
171 (1992); Michael E. Price et al., Punitive Sentiment As an Anti-free Rider Psychological Device,
23 E
VOLUTION
&
H
UM
.
B
EHAV
. 203, 206 (2002); Trivers, Reciprocal Altruism, supra note 62, at
49.
80. See, e.g., B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
, supra note 34, at 104; P
INKER
,
supra
note 78, at 404; T
RIVERS
,
S
OCIAL
E
VOLUTION
, supra note
40,
at 388-89; Robert H. Frank,
Regulating Sexual Behavior: Richard Posner’s Sex and Reason, in L
AW AND
E
VOLUTIONARY
B
IOLOGY
149, 156 (Lawrence A. Frolik ed., 1999).
81. While the inducement to help a person in peril because one likes her is absent for
strangers, “[s]election may also favor helping strangers or disliked individuals when they are in
particularly dire circumstances.” Trivers, Reciprocal Altruism, supra note 62, at 48. “Since humans
respond to acts of altruism with feelings of friendship that lead to reciprocity, one such mechanism
might be the performing of altruistic acts toward strangers, or even enemies, in order to induce
friendship.” Id. at 52. On the other hand, the impulse to save strangers may simply “be explained as
‘misfirings’ of the disposition to behaviour of the broadly ‘reciprocal altruist’ kind . . . .” F
LORIAN
VON
S
CHILCHER
&
N
EIL
T
ENNANT
,
P
HILOSOPHY
,
E
VOLUTION AND
H
UMAN
N
ATURE
144 (1984).
192 HOFSTRA LAW REVIEW [Vol. 35:171
reciprocate.
82
The elderly and infirm may have a shortened window of
opportunity.
83
On the other hand, the person with a history of altruistic
behavior is more likely to reciprocate,
84
as are friends and
acquaintances.
85
The same may hold true for the prominent social,
business or political leader, or any person who trades on her reputation.
86
The young and the venturesome may even want to face the risks of a
future rescue. In sum, a wide range of responses to the call for reciprocal
altruism can be expected, with certain identifiable qualities of each
person affecting her probable amenability.
Perhaps the persons most likely to engage in rescues because of a
heightened expectation of reciprocation would be, all else being equal,
fellow householders and near neighbors. The rescuee is more likely to be
around to reciprocate, if needed. Normative sanctions are probably
strongest and most effective with regard to locals. At the same time,
fellow householders and near neighbors, especially in ancestral
82. See T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 362 (“Of course, any asymmetries
among the individuals in their ability to affect each other will decrease the possibilities for altruistic
exchanges.”).
83. See id. at 388-89. With each of these examples, I generalize, sometimes grossly. For
example, though the elderly may not be in a position to reciprocate, their descendants might be. For
a family or community that reveres the elderly, the rescue of an older person may be more likely to
trigger indirect reciprocation than the rescue of a young person. On the other hand, the elderly and
infirm have less to gain from altruistic acts, and also less to lose by reciprocating. See Trivers,
Reciprocal Altruism, supra note 62, at 46.
84. Yet one must not forget the “fundamental attribution error” (“FAE”), which occurs
“[w]hen people infer that the actor’s behavior and mental state correspond to a degree that is
logically unwarranted by the situation . . . .” Paul W. Andrews, The Psychology of Social Chess and
the Evolution of Attribution Mechanisms: Explaining the Fundamental Attribution Error, 22
E
VOLUTION
&
H
UM
.
B
EHAV
. 11, 13 (2001). “Because it appears as if people generalize from the
actor’s behavior and ignore the situational context in which behavior occurs, the FAE is often
described as a tendency to underattribute the cause of behavior to situations and overattribute it to
dispositional traits.” Id.; see
also R
ICHARD
N
ISBETT
&
L
EE
R
OSS
,
H
UMAN
I
NFERENCE
:
S
TRATEGIES
AND
S
HORTCOMINGS OF
S
OCIAL
J
UDGMENT
30-32 (1980); Lee Ross & Craig A. Anderson,
Shortcomings in the Attribution Process: On the Origins and Maintenance of Erroneous Social
Assessments, in J
UDGMENT
U
NDER
U
NCERTAINTY
:
H
EURISTICS AND
B
IASES
129, 135 (Daniel
Kahneman et al. eds., 1982).
85. “Altruism would be expected to be more frequent in a milieu in which an individual’s acts
of altruism were known to the other people in that milieu.” Johnson, supra note 59, at 360. “The
majority of altruistic acts receiving [Carnegie hero] awards are performed by rural or small-town
residents [where this conduct is more likely to be known and reciprocated by others], as would be
expected from reciprocal altruism theory.” Id. at 360-61.
86. See A
LEXANDER
,
B
IOLOGY
,
supra note 67, at 85 (“Indirect reciprocity involves reputation
and status, and results in everyone in a social group continually being assessed and reassessed by
interactants, past and potential, on the basis of their interactions with others.”); B
ARKOW
,
supra note
40, at 54 (“If I have the reputation of aiding others, there is a considerable chance that someone will
eventually aid me . . . .”); Richard D. Alexander, Biological Considerations in the Analysis of
Morality, in E
VOLUTIONARY
E
THICS
162, 179 (Matthew H. Nitecki & Doris V. Nitecki eds., 1993)
(discussing reputational benefits of beneficence).
2006] AN EVOLUTIONARY PERSPECTIVE 193
environments, may well be relatives.
87
If so, reciprocal altruism and kin
selection would reinforce one another.
88
To reconnoiter, insofar as reciprocal altruism, or cooperation more
generally, is beneficial to a community, courts should be generous in
protecting rescuers irrespective of who the various parties happen to be.
Even the rescue of strangers unlikely to reciprocate may be salutary to
the community overall by furthering a broad practice of cooperation and
mutual support, and encouraging alliances with other groups.
Nonetheless, the actual cases under the rescue doctrine should reflect the
interests of the rescuers, which may differ from the community at large.
While the community may gain from expanding the practice of
undertaking rescues, the individual rescuer (and her kin) must absorb
many of the losses that result from harms to the rescuer and failures to
reciprocate. Even when the rescuer successfully recovers for injuries
under the rescue doctrine, she still must bear the opportunity and
transaction costs of the litigation. For the rescuer, these potential losses
would probably outweigh the benefits to her from the diffuse gains to the
community. So under reciprocal altruism, one would expect that rescuers
would usually direct their efforts to those who are more likely to
stimulate reciprocation, direct or indirect, to them or their kin. But
before we complete the tally of evolutionary benefits to rescuers, we
must account for the urges of the genes pursuant to sexual selection.
3. Sexual Selection
Another evolutionary component that affects behavior is, as Darwin
87. Anthropological studies have found that help to others and the expectation of
reciprocation for gift giving correlate to the degree of relationship to the recipient. See R
ICHARD
J
OYCE
,
T
HE
E
VOLUTION OF
M
ORALITY
46 (2006).
88. “This kin altruism or nepotism can be viewed as a special case of reciprocal altruism, with
costs reduced in accordance with genetic closeness.” J
OHNSTON
,
supra note 78, at 86. “Indeed,
given the favorable benefit-to-cost ratio that is inherent in kin altruism, it likely served as the
stepping-stone necessary for acquiring and refining the feelings needed for effective use of
reciprocal altruism.” Id. See B
ARKOW
,
supra note 40, at 55-57 (arguing, contrary to Trivers, that
reciprocal altruism needed kin selection for an “initial kick” to get started); Krebs, supra note 72, at
337, 357 (“[S]ystems of reciprocity may have needed the benefits of kin selection to kick start
them.”). If both kin selection and reciprocal altruism have operated, “[o]ne might expect, for
example, a lowered demand for reciprocity from kin than from nonkin, and there is evidence to
support this. The demand that kin show some reciprocity suggests, however, that reciprocal-
altruistic selection has acted even on relations between close kin.” Trivers, Reciprocal Altruism,
supra note 62, at 46 (citations omitted). Because the mental mechanisms behind altruistic behavior
may have been selected in an ancestral environment of family and close comrades, which is no
longer our exclusive environment, human dispositions for reciprocal altruism today might be
evolutionarily too strong. See Avner Ben-Ner & Louis Putterman, Values and Institutions in
Economic Analysis, in E
CONOMICS
,
V
ALUES
,
AND
O
RGANIZATION
,
supra note 73, at 3, 32; Charles
Crawford, The Theory of Evolution in the Study of Human Behavior: An Introduction and Overview,
in H
ANDBOOK
,
supra note 34, at 3, 26 [hereinafter Crawford, Theory of Evolution].
194 HOFSTRA LAW REVIEW [Vol. 35:171
called it, “sexual selection.”
89
This stems from the competition among
conspecifics for resources. In this regard, sexual organisms compete for
mating opportunities.
90
The competition among conspecifics of the same sex occurs
because males and females supply different resources to the reproductive
process.
91
Females usually contribute the more valuable resources.
92
First of all, they provide eggs, which are high in nutrients, while males
supply sperm, which are low. In fact, the very definition of male and
female turns on which one produces the more valuable input to
fertilization.
93
Second, among mammals, the greater initial investment of
females extends to internal fertilization and gestation, and thereafter to
lactation.
94
Finally, for humans, it seems that historically and
prehistorically, nurturing has also been largely left to females.
89. See D
ARWIN
,
T
HE
D
ESCENT OF
M
AN
,
in T
HE
O
RIGIN OF
S
PECIES
&
T
HE
D
ESCENT OF
M
AN
,
supra note 29, pt. II, ch. VIII. Darwin saw “that there are two kinds of selection, one for
general viability leading to survival and the maintenance or improvement of adaptedness, and this
he called ‘natural selection,’ and another that leads to greater reproductive success, and this he
called ‘sexual selection.’” E
RNST
M
AYR
,
O
NE
L
ONG
A
RGUMENT
:
C
HARLES
D
ARWIN AND THE
G
ENESIS OF
M
ODERN
E
VOLUTIONARY
T
HOUGHT
164 (1991). “From a gene survival viewpoint,
there is really no difference between natural and sexual selection, since any such behavior or
structure will be favored over generations only if it contributes to the survival of the genes of those
who posses it.” J
OHNSTON
,
supra note 78, at 149.
For theories as to why sexual reproduction began, see A
VISE
,
supra note 38, at 126-29;
G
OULD
&
G
OULD
,
supra note 34, at 6-69; T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 315-30;
W
ILLIAMS
,
P
LAN AND
P
URPOSE
,
supra note 47, at 79-96.
90. Sexual selection “has two forms: intersexual selection (often typified by female choice of
males) and intrasexual selection (often typified by the male-male competition for access to
females).” D
ONALD
E.
B
ROWN
,
H
UMAN
U
NIVERSALS
103 (1991); see also D
AVID
M.
B
USS
,
T
HE
E
VOLUTION OF
D
ESIRE
:
S
TRATEGIES OF
H
UMAN
M
ATING
3 (1994) [hereinafter B
USS
,
E
VOLUTION
OF
D
ESIRE
];
G
OULD
&
G
OULD
,
supra note 34, at 86; L
OW
,
supra note 38, at 22-23; Crawford,
Theory of Evolution, supra note 88, at 10.
91. The seminal paper on “parental investment theory” is by Trivers. See Robert L. Trivers,
Parental Investment and Sexual Selection, in S
EXUAL
S
ELECTION AND THE
D
ESCENT OF
M
AN
1871-
1971, at 136 (Bernard Campbell ed., 1972). “Each sex . . . is governed by individual reproductive
advantage, sometimes in conflict with that of the other, and sex differences have evolved because of
an underlying difference in the work each invests—or fails to invest—in the raising of offspring.”
T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 301. For challenges to this view, see A
NNE
F
AUSTO
-S
TERLING
,
M
YTHS OF
G
ENDER
:
B
IOLOGICAL
T
HEORIES
A
BOUT
W
OMEN AND
M
EN
179-204
(2d ed. 1992).
92. “These asymmetries between the sexes tend to produce two outcomes: (1) greater male-
male than female-female competition for mates and (2) greater female than male ‘choice’ among
willing mates.” Jones & Goldsmith, supra note 24, at 430. “Trivers’ supply-and-demand logic
explained why, in most species, males court and females choose.” M
ILLER
,
supra note 63, at 86.
Nevertheless, “[m]ales seem to devote at least as much energy [as females] to producing offspring,
but this effort is more often expended in fighting and displaying than in large zygotes and care of
the young.” G
OULD
&
G
OULD
,
S
EXUAL
S
ELECTION
supra note 34, at 239.
93. See, e.g., B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 19; G
OULD
&
G
OULD
, supra
note 34, at 69; M
ILLER
,
supra note 63, at 85.
94. See B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 19-20.
2006] AN EVOLUTIONARY PERSPECTIVE 195
The sex that invests less in reproduction competes, as for other
scarce resources, for the one that invests more.
95
The degree of disparity
in resource commitment affects the competition and behavior. Among
humans—a largely “pair-bonding” species
96
—males generally invest
much in their offspring, though not as much as women.
97
One reason
men invest so much is that women will not mate with them otherwise.
98
Even so, males may gain much evolutionarily, and lose little beyond the
risks of disease and social sanctions, by casual mating beyond the
primary relationship.
99
On the contrary, women usually have little to
gain from indifferent promiscuity since their investment requirements
severely limit their number of offspring. Obtaining matings is usually
not a problem for females; raising their children to be successful
breeders is. Hence, males are disposed to seek quantity in matings while
the females seek quality.
100
This mating game, in which males and
95. See, e.g., David M. Buss, The Psychology of Human Mate Selection: Exploring the
Complexity of the Strategic Repertoire, in H
ANDBOOK
,
supra note 34, at 405, 410-11 [hereinafter
Buss, Human Mate Selection]. Because “[s]exual competition is demonstrably more intense among
males than among females . . .; as a general consequence the entire life strategy of males is a higher-
risk, higher-stakes adventure than that of females.” R
ICHARD
D.
A
LEXANDER
,
D
ARWINISM AND
H
UMAN
A
FFAIRS
241 (1979) [hereinafter A
LEXANDER
,
H
UMAN
A
FFAIRS
].
Numerous studies have
shown that men are greater risk-takers than women. See B
ADCOCK
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 34, at 14; Christopher R. Badcock, PsychoDarwinism: The New Synthesis of Darwin and
Freud, in H
ANDBOOK
,
supra note 34, at 457, 464 [hereinafter Badcock, PsychoDarwinism].
96. For “pair-bonding” species, in which the male and female investments in producing and
raising offspring are comparable, as for some fish and birds, “male-female bonds are long-lasting,
physical and behavioral distinction between the sexes is small, male competition for females is low,
and differences among males in reproductive success are small.” M
ELVIN
K
ONNER
,
W
HY THE
R
ECKLESS
S
URVIVE
:
A
ND
O
THER
S
ECRETS OF
H
UMAN
N
ATURE
7 (1990). These four qualities tend
towards the opposite poles for species in which the male investment is low, as where they do little
else than supply sperm. See G
OULD
&
G
OULD
,
supra note 34, at 146-49; L
OW
,
supra note 38, at 50-
51. For the general varieties of mating strategies, see G
OULD
&
G
OULD
, supra, at 137-73; L
OW
,
supra, at 47-51. For an argument that humans may not be entirely a pair-bonding species, see
C
ARTWRIGHT
,
supra note 42, at 102-03; M
ILLER
,
supra note 63, at 224-25.
97. Anthropologists report that “[w]omen have done more child care than men in every
human society on record.” K
ONNER
,
supra note 96, at 7.
98. The adaptive benefits for a man who will commit to marriage are: “(1) increased odds of
succeeding in attracting a mate; (2) increased ability to attract a more desirable mate; (3) increased
paternity certainty; (4) increased survival of his children; and (5) increased reproductive success of
children accrued through paternal investment.” B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27,
at 133. More generally, “[e]volution has favored women who prefer men who possess attributes that
confer benefits and who dislike men who possess attributes that impose costs.” B
USS
,
E
VOLUTION
OF
D
ESIRE
,
supra note 90, at 21.
99. “If there is any chance the female can raise the young, either alone or with the help of
others, it would be to the male’s advantage to copulate with her.” R
OBERT
T
RIVERS
, Parental
Investment and Reproductive Success, in N
ATURAL
S
ELECTION AND
S
OCIAL
T
HEORY
56, 74 (2002).
“By this reasoning one would expect males of monogamous species to retain some psychological
traits consistent with promiscuous habits.” Id.
100. See, e.g., M
ILLER
,
supra note 63, at 86. “Because women in our evolutionary past risked
enormous investment as a consequence of having sex, evolution favored women who were highly
196 HOFSTRA LAW REVIEW [Vol. 35:171
females choose one another on the basis of differing criteria, is the
essence of sexual selection.
101
Even though men and women have somewhat different
reproductive interests and strategies,
102
the traits they seek in a mate very
largely overlap. In modern times, the characteristics of a mate generally
preferred by females are, in order: kindness and understanding;
intelligence; exciting personality; good health; adaptability; physical
attractiveness; creativity; good earning capacity; college graduate; desire
for children; good heredity; good housekeeper; and, religious
orientation. Men’s general preferences are the same, except they rate
physical attractiveness as third rather than sixth, and good earning
capacity as eleventh rather than eighth.
103
But there are sufficient
differences in their mating interests and strategies to lead to variant
preferences of concern here. This divergence will draw most of the
attention.
Men are disposed to prefer young, healthy mates to increase their
selective about their mates.” B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 20. Historically
females have not all bred near their reproductive capacity, and therefore also seek more than just
genetic quality. See S
ARAH
B.
H
RDY
,
T
HE
W
OMAN
T
HAT
N
EVER
E
VOLVED
131-32 (1981). For
doubts about ancestral mating patterns, see Sarah Blaffer Hrdy, Raising Darwin’s Consciousness:
Female Sexuality and the Prehominid Origins of Patriarchy, 8 H
UM
.
N
ATURE
1 (1997).
101. “Given the power of sexual selection, under which each sex competes for access to
desirable mates of the other sex, it would be astonishing to find that men and women were
psychologically identical in aspects of mating about which they have faced different problems of
reproduction for millions of years.” B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 211; see also
C
RONIN
,
supra note 30, at 113-249. For discussions of the biological origins of the differences in
the mating strategies of males and females, see B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27,
at 97-186;
T
IMOTHY
H.
G
OLDSMITH
,
T
HE
B
IOLOGICAL
R
OOTS OF
H
UMAN
N
ATURE
:
F
ORGING
L
INKS
B
ETWEEN
E
VOLUTION AND
B
EHAVIOR
47-69 (1991); L
OW
,
supra note 38, at 37-44; Kingsley R.
Browne, An Evolutionary Perspective on Sexual Harassment: Seeking Roots in Biology Rather
Than Ideology, 8 J.
C
ONTEMP
.
L
EGAL
I
SSUES
5, 12-22 (1997) [hereinafter Browne, Evolutionary
Perspective].
102. While each sex uses different strategies to obtain resources for survival and reproduction,
“how each sex accomplishes these ends relies not only (and not obviously) on differences in genes,
but on differences in environment.” L
OW
,
supra note 38, at xiv. For general discussions of the
differing mating wants of men and women, see, for example, B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra
note 90; L
OW
,
supra note 38; M
ILLER
,
supra note 63.
103. G
OULD
&
G
OULD
,
supra note 34, at 258; Buss, Human Mate Selection, supra note 95, at
419-21; see also M
ILLER
,
supra note 63, at 330 (“When people are asked to rate personality features
as positive or negative, the agreeableness feature [which is empirically associated with compassion,
lovingness, sincerity, trustworthiness, and altruism] always tops the charts.”);
T
HIESSEN
,
supra note
54, at 326 (noting that the overlap in preferences of men and women is nearly total, both preferring
kindness, understanding, intelligence, exciting personality, good health, and adaptability). Though
Williams doubts that “advanced mental capabilities have ever been directly favored by selection,”
G
EORGE
C.
W
ILLIAMS
,
A
DAPTATION AND
N
ATURAL
S
ELECTION
:
A
C
RITIQUE OF
S
OME
C
URRENT
E
VOLUTIONARY
T
HOUGHT
14 (1966), Miller contends that mental capabilities have “evolve[d]
through sexual selection” as fitness indicators. M
ILLER
, supra note 63, at 104. See generally id. at
99-176, 341-425.
2006] AN EVOLUTIONARY PERSPECTIVE 197
prospects for productive children.
104
Strong indicators of youth and
health are beauty and vivacity.
105
Men also want mates who are
committed to them,
106
will be good mothers, and have good genes to
pass along to their children.
107
Some risky rescues by women may reveal traits men seek in a mate.
Directly demonstrating youthfulness in rescue situations is hard to
envisage, but demonstrating fitness, which is generally associated with
youthfulness, is easier, as where the rescue, even if not dangerous, is
arduous.
108
As for the other qualities in a mate sought by men,
commitment and good mothering may be intimated by some rescues,
especially when the rescuee is kin or a friend. Good genes, like youth
and health, are suggested by arduous rescues, or by tricky ones that
require intelligence and ingenuity. Finally, whatever renown is achieved
by the rescue may improve social and financial prospects for the female
rescuer. With respect to the quality of daring in itself, in certain
circumstances and environments, perhaps ancestral ones, bold women
104. See, e.g.,
B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 133-45; B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 49-58.
105. See B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 139. Attractiveness is also an
indicator of good genes in both women and men. See, e.g., B.C. Jones et al., Facial Symmetry and
Judgements of Apparent Health: Support for a “Good Genes” Explanation of the Attractiveness-
Symmetry Relationship, 22 E
VOLUTION
&
H
UM
.
B
EHAV
. 417 (2001) [hereinafter Jones et al., Facial
Symmetry].
106. To protect their parental investments in their mates’ children, men want assurance that the
children are their own, and not another’s. This has led to men’s general preference for chaste
females, and perhaps even to marriage. See B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at
148-52. It has also led to men’s proprietary claims over their wives. See, e.g., Margo Wilson &
Martin Daly, The Man Who Mistook His Wife for a Chattel, in A
DAPTED
M
IND
,
supra note 39, at
289. To partially anticipate the next paragraph, in many studies “males, more so than females,
indicate that a partner’s sexual infidelity is relatively more distressing than a partner’s emotional
infidelity. Females, more so than males, indicate that a partner’s emotional infidelity is more
distressing than a partner’s sexual infidelity.” David C. Geary et al., Estrogens and Relationship
Jealousy, 12 H
UM
.
N
ATURE
299, 300 (2001).
107. Along with the two problems of “identifying women of high reproductive value and
ensuring paternity certainty,” men confront the problems of “selecting women likely to commit to
them, identifying women who will be good mothers, and perhaps even identifying women with
good genes (this latter suggestion is, at the current time, highly speculative).” Buss, Human Mate
Selection, supra note 95, at 416. See B
ARKOW
,
supra note 40, at 357 (noting that it is advantageous
for men in seeking a long-term mate to “act as if they were calculating the various weights of (1) the
female’s youth and health (reproductive potential); (2) the quality of her genes (judged
phenotypically); (3) the confidence in future paternity she inspires (her reputation); and (4) her
ability to produce and control resources for parental investment”). For the meanings of “good
genes,” see C
RONIN
, supra note 30, at 191-201, and for challenges to the “good genes” models, see
W
ILLIAMS
,
N
ATURAL
S
ELECTION
,
supra note 34, at 106-11.
108. For example, among the “reliable guides to age and hence reproductive capability” of
females are “behavioral features (e.g., sprightly and graceful gait, high energy level, alacrity).”
David M. Buss, Mate Preference Mechanisms: Consequences for Partner Choice and Intrasexual
Competition, in A
DAPTED
M
IND
,
supra note 39, at 249, 250 [hereinafter Buss, Mate Preference].
198 HOFSTRA LAW REVIEW [Vol. 35:171
may better protect themselves, their offspring and their mates than the
meek and weak. In other situations, heroic women may simply put
themselves and their families at greater risk than those who retreat.
109
Because men are often more physically able than women to undertake a
typical risky rescue, perhaps it would be adaptive for women to defer to
available men when the occasion arises.
110
For casual matings alone, risky rescues may enhance women’s
opportunities even though men are not disposed to be very selective
about matings outside any primary relationship.
111
A woman’s
manifested abilities and fame from a daring rescue may entice more
desirable men to seek matings with her. In evolutionary terms, they
prefer her good genes and improved prospects for possible offspring.
Women usually want more from a man than a one-night stand.
112
They generally prefer a mate to simply a mating in order to assure the
prospects of their valuable eggs by obtaining substantial contributions
109. “It has . . . been argued that females, in general, have evolved a risk-aversive strategy,
placing a high value on protecting their own lives, because their offsprings’ survival is highly
dependent on their maternal care.” B
JORKLUND
&
P
ELLEGRINI
,
supra note 56, at 239. It may be
useful to distinguish the daring woman, who readily accepts opportunities to confront risks, from
the brave woman, who responds courageously when risks are thrust upon her or her family. The
latter may be more adaptive than the former. But the taste for risk may be adaptive if a woman can
pass any genetic propensity for daring deeds to her sons, or to her grandsons through her daughters.
110. Under the social role theory, “the male gender role promotes helping that is chivalrous
and heroic (e.g., in front of an audience, dangerous), the female gender role promotes help that is
nurturant and caring (e.g., in the form of emotional support, empathy, and self-sacrifice).” Samuel
E. Fiala et al., Lending a Helping Hand: The Effects of Gender Stereotypes and Gender on
Likelihood of Helping, 29 J.
A
PPLIED
S
OC
.
P
SYCHOL
. 2164, 2166 (1999). See Darren George et al.,
Gender-Related Patterns of Helping Among Friends, 22 P
SYCHOL
.
W
OMEN
Q. 685, 686 (1998).
When risk is absent from morally-compelling circumstances, “[i]t was found that across many
problem settings women spend more time helping, give higher quality help, and feel more empathy
and sympathy in response to their friends’ problems.” Id. at 685. One commentator compares the
explanatory powers of the social role theory and sexual selection, and concludes “that evolutionary
theory accounts much better for the overall pattern of sex differences and for their origins,” John
Archer, Sex Differences in Social Behavior: Are the Social Role and Evolutionary Explanations
Compatible?, 51 A
M
.
P
SYCHOLOGIST
909, 909 (1996), though one of the founders of the social role
theory remains unpersuaded, see Alice H. Eagly, Sex Differences in Social Behavior: Comparing
Social Role Theory and Evolutionary Psychology, 52 A
M
.
P
SYCHOLOGIST
1380, 1380-81 (1997).
111. “[W]omen maintain high standards in the short-term mating context, in contrast to men,
whose standards plummet.” Buss, Human Mate Selection, supra note 95, at 424. For men’s short-
term mating psychology, see id. at 412-14, and for what men seek in short-term mating, see id. at
423-24.
112. Women’s reproductive advantages through long-term mating are: “immediate material
advantage to the woman and her children, enhanced reproductive advantage for her children through
acquired social and economic benefits, and genetic reproductive advantage for her children if
variations in the qualities that lead to resource acquisition are partially heritable.” Id. at 416.
“Genetic models of female mate choice can be broken down into four groups: direct benefit, good
gene, runaway selection, and sensory bias models.” L
EE
A
LAN
D
UGATKIN
,
T
HE
I
MITATION
F
ACTOR
:
E
VOLUTION
B
EYOND THE
G
ENE
32 (2000). For explication, see id. at 32-48.
2006] AN EVOLUTIONARY PERSPECTIVE 199
from the male after conception.
113
David Buss identifies five adaptive
problems for women seeking a mate and their hypothesized solutions.
First, in “[s]electing a mate who is able to invest,” they prefer “[g]ood
financial prospects, [s]ocial status, [o]lder age,
[a]mbition/industriousness, [and] [s]ize, strength, [and] athletic
ability.”
114
Second, in “[s]electing a mate who is willing to invest,” they
prefer “[d]ependability and stability, [l]ove and commitment cues, [and]
[p]ositive interactions with children.”
115
Third, in “[s]electing a mate
who is able to physically protect self and children,” they prefer “[s]ize
(height), [s]trength, [b]ravery, [and] [a]thletic ability.”
116
Fourth, in
“[s]electing a mate who will show good parenting skills,” they prefer
“[d]ependability, [e]motional stability, kindness, [and] [p]ositive
interactions with children.”
117
Fifth, in “[s]electing a mate who is
compatible,” they prefer “[s]imilar values, [s]imilar ages, [and] [s]imilar
personalities.”
118
Just as for men’s wants in a mate, good health is also a
preferred trait.
119
A man’s attractiveness and youth, in themselves, are of
no substantial value to a woman.
120
As predicted, other than for good
113. “It is noteworthy that female adultery and male failure to provide resources historically
have been grounds for divorce in many cultures, while the reverse is far less frequent.” Buss, Mate
Preference, supra note 108, at 253.
114. B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 105 (because Buss presents these
data in the form of a table, punctuation has been added). For example, studies have found “that high
income men report greater frequency of sex than all others do. . . . [and] have more biological
children than do low-income men . . . .” Rosemary L. Hopcroft, Sex, Status, and Reproductive
Success in the Contemporary United States, 27 E
VOLUTION
&
H
UM
.
B
EHAV
.
104,
104
(2006).
115. B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 105.
116. Id. Notice that male physical prowess is preferred for the first reason as well as this third
reason.
117. Id.
118. Id.
119. While Buss does not list good health as a trait in his chart of women’s adaptive mating
problems and solutions, he discusses its importance and provides five reasons for its fitness value,
including the reduction in risk of debilitation, death, contagion, and poor genes for offspring. See id.
at 118-20. In particular, “[o]ne of [a female’s] demands is for a male who is disease-resistant, a
male able to provide her offspring with good genes.” T
HIESSEN
,
supra note 54, at 123.
120. But, “[g]enetic quality . . . must be inferred from an organism’s phenotype since it can’t
be assessed directly. Attraction, therefore, may be an adaptive preference for phenotypes that imply
high genetic quality.” Paul Wehr et al., Stabilizing and Directional Selection on Facial
Paedomorphosis, 12 H
UM
.
N
ATURE
383, 384 (2001). “The hypothesis is that high attractiveness in a
male is a signal to the female of disease resistance.” T
HIESSEN
,
supra note 54, at 126. For support,
see, for example, Jones et al., Facial Symmetry, supra note 105, at 417. “If female tastes were also
heritable, as they probably would be, a female choosing a mate who appealed to her would
effectively be choosing genes for her sons, which would make them appealing to the next
generation of females.” Badcock, PsychoDarwinsim, supra note 95, at 472. See also B
ARKOW
,
supra note 40, at 58-59; C
RONIN
,
supra note 30, at 201-04; R
ICHARD
D
AWKINS
,
T
HE
B
LIND
W
ATCHMAKER
:
W
HY THE
E
VIDENCE OF
E
VOLUTION
R
EVEALS A
U
NIVERSE
W
ITHOUT
D
ESIGN
195-
220 (1987). This has been called the “sexy son” theory. See B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra
note 90, at 91; M
ATT
R
IDLEY
,
T
HE
R
ED
Q
UEEN
:
S
EX AND THE
E
VOLUTION OF
H
UMAN
N
ATURE
142-
200 HOFSTRA LAW REVIEW [Vol. 35:171
health, studies confirm that women prefer these qualities in a mate more
so than do men.
121
Some of the traits preferred by women in a mate may be revealed or
enhanced by men in the context of the rescue doctrine. A person
undertaking a risky rescue may display strength, athleticism, bravery,
122
health, and perhaps, kindness, and even positive interactions with
children, if a child is the rescuee or indirectly benefits from the rescue.
123
When the rescuee is a loved-one, relative or friend, the rescue effort
could also demonstrate dependability, love and commitment. Any
community approbation from the rescue raises social status,
124
which
43 (1993); Daniel J. Kruger et al., Proper and Dark Heroes as Dads and Cads, 14 H
UM
.
N
ATURE
305, 307 (2003).
Women generally prefer men older than themselves (but not old, which has offsetting
risks) because age is associated with increased resources, maturity, stability and reliability. See
B
USS
, E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 111-14.
121. See, e.g., B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, ch. 2, at 19-48 (“What Women
Want”); B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 104-30 (discussing women’s
preferences in mates). In recent times, the qualities preferred in a man may be changing in some
societies. A study of personal advertisements found that around half the women sought family
commitment and deemphasized wealth and status. “This seems to be pointing to a shift in what
women of reproductive age need for successful reproduction in modern economies. Where it was
once resources, it is now increasingly the social input into the business of rearing children: help with
child-care, a contribution to the socializing of the children.” R
OBIN
D
UNBAR
,
G
ROOMING
,
G
OSSIP
,
AND THE
E
VOLUTION OF
L
ANGUAGE
187 (1996). Men, however, have not gotten the message. They
still mainly promote their wealth and status. See id.
122. Notice that bravery or daring in a man may offer multiple benefits to a mate. First, it
indicates that the man is more likely to stand up against outside forces to protect the woman and her
children. Second, especially in the days of hunting and gathering, it may exhibit the likelihood of
being a better provider. See Susan Kelly & R.I.M. Dunbar, Who Dares, Wins: Heroism Versus
Altruism in Women’s Mate Choice, 12 H
UM
.
N
ATURE
89, 100 (2001). For example, among the Ache
of Paraguay, “‘showoff’ men who are more successful hunters receive more attention from group
members and fare better reproductively; more women are willing to mate with them.” L
OW
,
supra
note 38, at 115. It has been found in some traditional societies that “[t]he best hunters enjoy social
respect and increased sexual favors, either by acquiring more wives or by receiving attention from
the wives of other men.” Kelly & Dunbar, supra. Finally, since daring is a quality that is difficult to
fake, it signals to women a strong genetic constitution and other useful qualities, i.e., “good genes,”
that would be beneficial to their offspring. Under the “handicap principle,” for a signal to be
reliable, it must be costly, as is bravery, for otherwise it could be deceptive. See A
MOTZ
Z
AHAVI
&
A
VISHAG
Z
AHAVI
,
T
HE
H
ANDICAP
P
RINCIPLE
:
A
M
ISSING
P
IECE OF
D
ARWIN
’
S
P
UZZLE
,
at
xiv, 40,
59-60, 229-30 (1997). “[S]exual selection is a subset of the process we call signal selection.” Id. at
91; see also id. at 149-50. Altruism is costly signaling. See id. at 225-27. For other theories akin to
the handicap principle and recent evidence, see C
ARTWRIGHT
,
supra note 42, at 145-47; G
OULD
&
G
OULD
,
supra note 34, at 192-95; Robert M. Sapolsky, What Do Females Want?, N
AT
.
H
IST
.,
Dec.
2001-Jan. 2002, at 18.
123. Similarly, “many have suggested that acts of altruism may function as displays of
cooperative intent that observers may use in making decisions about social partner choice.”
Andrews, supra note 84, at 23.
124. Notice that anonymous rescues will not be reinforced by sexual selection. The daring
must be known to draw the beneficial attention of others. But then, why are there so many
anonymous gift donors? “A London socialite once remarked to me that she knew many anonymous
2006] AN EVOLUTIONARY PERSPECTIVE 201
may result in improved financial prospects as well.
125
For a woman
seeking a mate, what’s not to like in a rescuer?
126
For a woman seeking a mating, there also is something to like in a
rescuer, mainly, his good genes. Insofar as the displayed qualities sought
by a woman in a mate are heritable, she would also prefer them in a
mating in order to pass them along to her descendants, assuming, that is,
that the disposition was not for foolish risks that would lower the fitness
donors. They were well known within their social circle—the set of people whose opinion matters—
even though their names may not have been splashed across the newspapers.” M
ILLER
,
supra note
63, at 323. But cf. O
LINER
&
O
LINER
,
supra note 40, at 1 (noting that some of the rescuers of Jews
refused to identify themselves after the war “because they did not want public recognition for doing
what they thought was their simple human duty”). On the other hand, Monroe “found no one at all
in any of [his] samples who said they act altruistically in order to win the approval of someone, even
an important role model,” nor “with the expectation of any delayed reward or reciprocal benefit.”
M
ONROE
,
supra note 14, at 150, 152. Nevertheless, any genetic disposition for this behavior will be
selected under evolutionary principles irrespective of conscious motivation. See, e.g., Elliott Sober
& David Sloan Wilson, A Critical Review of Philosophical Work on the Units of Selection Problem,
in P
HILOSOPHY OF
B
IOLOGY
,
supra note 39, at 198, 199 (“[A]ltruism and selfishness are defined by
the fitness effects of a behaviour; they have nothing essentially to do with psychological motives.”);
Elliott Sober, What Is Evolutionary Altruism?, in P
HILOSOPHY OF
B
IOLOGY
, supra note 39, at 459,
460-62 (distinguishing “vernacular altruism”, which requires conscious motives, from “evolutionary
altruism,” which does not); David Sloan Wilson, On the Relationship Between Evolutionary and
Psychological Definitions of Altruism and Selfishness, in P
HILOSOPHY OF
B
IOLOGY
, supra note 39,
at 479-80 (“[B]ehaviours that are altruistic in the evolutionary sense can be psychologically either
selfish or altruistic.”). Similarly, for a status-signaling theory of gift-giving, see E
RIC
A.
P
OSNER
,
L
AW AND
S
OCIAL
N
ORMS
55-62 (2000).
125. For an analysis of the encouragement of cooperation by granting status as a social reward
mechanism, see Chaim Fershtman & Yoram Weiss, Why Do We Care What Others Think About
Us?, in E
CONOMICS
,
V
ALUES
,
AND
O
RGANIZATION
,
supra note 73, at 133. “[S]ocially minded
preferences are evolutionarily stable only if social rewards are neither excessive nor negligible.” Id.
at 149.
126. Well, for one thing, the rescue attempt may demonstrate rashness. For example, “[w]hen
Harry Ramos died while trying to help an incapacitated stranger, named Victor, escape from the
burning World Trade Center, the world turned him into a hero. His wife, Migdalia, was angry.”
Mary Williams Walsh, Impulse to Help Allows a Wife to Understand, N.Y.
T
IMES
, Dec. 10, 2001, at
B1. “[S]he was left alone with two children, a half-built house, a six-figure mortgage, a flood of
bills and questions that would not go away about why her husband put a stranger ahead of his
family.” Id. While at her mother’s apartment just three weeks later, “a fire broke out. She found
herself running into a smoke-filled stairway, intent on saving her mother’s elderly neighbor.
Suddenly, she understood why her husband had done as he did.” Id. It was not from cool reason. See
id. As exemplified by this tale, even if not rash, “[b]rave, risk-prone men may be subject to a higher
mortality rate than risk-averse males.” Kelly & Dunbar, supra note 122, at 101. “This risk is
reflected in the ratings: the brave, whether professional or voluntary, were less highly rated as long-
term partners than as short-term liaisons or friends, which might reflect female awareness of the
increased risk involved in allying herself with a risk-prone mate.” Id. In a recent study, “[b]oth
females and males preferred heroic physical risk takers as mates, with the preference being stronger
for females. Contrary to predictions, for nonheroic physical risks (such as risky sports), both males
and females preferred risk avoiders over risk takers as mates.” G. William Farthing, Attitudes
Toward Heroic and Nonheroic Physical Risk Takers as Mates and as Friends, 26 E
VOLUTION
&
H
UM
.
B
EHAV
. 171, 171 (2005).
202 HOFSTRA LAW REVIEW [Vol. 35:171
of her posterity.
127
Even when she has a mate, she may seek an outside
mating to overcome her own mate’s inferior genes or infertility, accrue
resources, obtain protection, or replace her mate.
128
A daring rescue may
manifest, or bring in its train, some of the preferred traits.
In the list above of qualities sought by women in men, there is no
mention of altruism, though kindness, love, commitment and
dependability may overlap it to some extent. Women seek daring men,
not altruistic ones. In one supporting study, “[b]ravery in a male was
shown to be the stronger factor influencing female choice of short-term
partners, long-term partners, and male friends, with altruism playing a
lesser part in their choice.”
129
But one would think that women would
127. Male descendants with a fit penchant for risky rescues would be “sexy sons,” attractive to
women. See supra note 120.
128. Thus, even for a woman, a one-night stand may have benefits. A woman can increase her
long-term reproductive success by casual mating with a man with better genes than her husband, if
she can assure support of the children, as by deceiving her husband into raising the offspring as his
own or obtaining maintenance from the cuckolder. See, e.g., B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra
note 90, at 90-91. But cf. Donald Symons, The Double Standard, in E
THICS
105, 107-08 (Peter
Singer ed., 1994) (“Adultery may also function to increase the genetic quality of a woman’s
offspring, but this probably is a minor (or rare) function, since it seems unlikely that the detectable
genetic differences among males are often great enough to repay the investment of time, energy, and
risk that adultery entails.”). For additional adaptive benefits to women of short-term mating, see
B
ARKOW
,
supra note 40, at 338-39 (1989) (better genes, genetic diversity, reproduction if mate is
infertile, resource accrual, protection, mate replacement if disabled); B
USS
,
E
VOLUTIONARY
P
SYCHOLOGY
,
supra note 27, at 176-82 (resource accrual, better genes, mate switching, mating
skills acquisition, mate manipulation); Buss, Human Mate Selection, supra note 95, at 417-18, 424-
25. See generally T
RIVERS
,
S
OCIAL
E
VOLUTION
,
supra note 40, at 330-60. For support that women
do seek matings outside their marriages, see B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 191-
94; see also N
ANCY
L.
S
EGAL
,
E
NTWINED
L
IVES
:
T
WINS AND
W
HAT
T
HEY
T
ELL
U
S
A
BOUT
H
UMAN
B
EHAVIOR
39
(1999)
(“Nonpaternity rates are estimated to be between 5 and 30%, so a substantial
minority of children are not related to presumed fathers.”).
129. Kelly & Dunbar, supra note 122, at 89. “Altruism was deemed important in long-term
relationships and friendships, but for short-term liaisons, non-altruists were preferred to altruists.”
Id. The authors of this study, after considering whether this female choice is impelled by kin
selection, reciprocal altruism or other drives, surmise that “if heroic acts bring greater reproductive
success to the actor, then a . . . less noble explanation for the evolution of heroic behavior may be
that heroism, even in the absence of altruism, is attractive to women because it acts as a marker for
good quality genes.” Id. at 91. Along with marking good genes, bravery advances the female’s
protection and provisioning. See id. at 100-01.
Interestingly, for the Christians who risked their lives to rescue Jews from the Nazis, “a
zest for adventure and the workings of chance both were important in the initiation of rescue
behavior.” Perry London, The Rescuers: Motivational Hypotheses About Christians Who Saved
Jews from the Nazis, in A
LTRUISM AND
H
ELPING
B
EHAVIOR
:
S
OCIAL
P
SYCHOLOGICAL
S
TUDIES OF
S
OME
A
NTECEDENTS AND
C
ONSEQUENCES
241, 249 (J. Macaulay & L. Berkowitz eds., 1970)
[hereinafter H
ELPING
B
EHAVIOR
].
The relevant structural personality characteristics of the rescuers
were: “(a) A spirit of adventurousness, (b) an intense identification with a parental model of moral
conduct, and (c) a sense of being socially marginal.” Id. at 245. The first trait seems more daring
than altruistic. Those with the third trait could increase their attractiveness by the demarginalization
that would normally come from a daring rescue, though probably not from rescuing Jews in Nazi
Germany. Because these rescues were not legitimized, and even were socially risky, the underlying
2006] AN EVOLUTIONARY PERSPECTIVE 203
still value altruism in a mate as well as daring. For the man who is
altruistic within the senses of kin selection and reciprocal altruism would
improve the prospects for his mate’s genes, along with his own.
130
To
the extent that altruism has a genetic component, a woman seeking a
mating would also value it for parallel reasons to pass to her
descendants. Even though the rescue of a stranger unlikely to reciprocate
goes beyond these two evolutionary forces, it still demonstrates the
attractive trait of daring and, perhaps, a strong form of altruism.
131
One sex is aware of the preferences of the other.
132
Each strives to
become more desirable. Care and hard work can help. So might deceit
conduct has been called “autonomous altruism” to distinguish it from the socially approved
“normative altruism.” See David Rosenhan, The Natural Socialization of Altruistic Autonomy, in
H
ELPING
B
EHAVIOR
,
supra, at 251, 252 (giving as additional examples the active southern
abolitionists and those who worked in leper colonies when leprosy was believed to be highly
communicable). Even London’s second trait may partially dissolve into the third since the
identification with a moralistic parent “seemed, in fact, to be more often positively related to social
marginality.” London, supra, at 249.
130. This may be why “altruism was considered more important in a partner for long-term
relationships and—especially—friendship than for short-term sexual liaisons.” Kelly & Dunbar,
supra note 122, at 98. The preference for altruism in long-term relationships would not relate to kin
selection, because for him it is his kin that are important, not her kin (unless they are kin in
common). Krebs points out that it is in a person’s interest to look for a mate with the disposition to
care for her mate and kin, not to care indiscriminately for everyone. See Krebs, supra note 72, at
351-52. “It is conceivable that eligible mates who are disposed to care indiscriminately could,
through such behaviors, elevate their status, and therefore their attractiveness as mates, but the
fitness losses to the partner incurred by a mate’s extrafamilial caring would virtually always seem to
outweigh the gains.” Id. at 352. I wonder if this is true in the context of the rescue doctrine. The
occasional, or one-time, rescue might well raise status and create familial benefits above potential
fitness losses. Furthermore, even somewhat indiscriminate care might achieve benefits through
reciprocal altruism.
131. Kin selection and reciprocal altruism struggle to explain altruistic acts towards strangers.
While they may still do the work, as where the practice of altruism became ensconced at a time
when most people encountered were kin or neighbors, today’s world of interacting strangers would
select against general altruism impelled by these two forces alone. Singer believes this would drive
out altruism towards strangers. See P
ETER
S
INGER
,
T
HE
E
XPANDING
C
IRCLE
:
E
THICS AND
S
OCIOBIOLOGY
139 (1981). He explains its existence as a result of the human capacity to reason
which may “bring[] with it an appreciation of the reasons for extending to strangers the concern we
feel for our kin and our friends . . . .” Id. See E
RNST
M
AYR
,
T
OWARD
A
N
EW
P
HILOSOPHY OF
B
IOLOGY
81-85 (1988) (discussing how reason and culture lead humans to extend altruism beyond
inclusive fitness). Sexual selection may counter such reasoning. As Miller bluntly puts it, “[h]uman
altruism is not an evolutionary paradox. It is a sexual ornament.” M
ILLER
,
supra note 63, at 339.
132. For example, “[m]en are clearly aware that bravery and the willingness to take risks are
qualities that women find attractive.” Kelly & Dunbar, supra note 122, at 101. One recent study
adds a caveat. In it, “both males and females accurately predicted the opposite sex’s preferences for
heroic risk takers as mates. However, males failed to predict females’ preferences for nonheroic
physical risk avoiders.” Farthing, supra note 126, at 171. For a woman, “[r]isk taking without some
practical purpose may be seen, in fact, as an undesirable trait for a mate because it undoubtedly
increases the likelihood that he will be seriously injured or killed and thus unable to continue
providing for and protecting the woman and her children.” Id. at 179-80. Perhaps males are
nonheroic physical risk takers to impress other men. “In other words, if physical risk taking by
204 HOFSTRA LAW REVIEW [Vol. 35:171
and packaging. Consider the stereotypical male braggart touting his
prowess, bravery and wherewithal, and quick with false avowals of love
and commitment. Consider the cosmetic and fashion industries.
133
These
evidence the different mating strategies of men and women.
134
In sum, why do men and women have these divergent mating
preferences, strategies, and personality dispositions? It is because those
who did so in the past left more descendants than those who did not.
These characteristics are selected adaptations.
135
Let me speculate on how the behavioral characteristics informed by
sexual selection would play out in the context of the rescue doctrine. The
quick and obvious conclusion is that the nature of the rescuers, the
rescuees, and the surrounding circumstances should reflect the
opportunities provided by the particular rescues to display or enhance
the qualities preferred by the other sex. Men would be drawn to rescues
that suggest, for example, daring, strength, athleticism, health, kindness,
dependability, love, and commitment, and that augment status and
wealth. Women would be interested in rescues that imply such qualities
as youth, health, commitment, good mothering, intelligence, and that
produce fame.
In musing on prototypical rescue situations, it seems that more of
the qualities sought by women in a mate or mating are associated with
males is a costly signal of their valuable traits, the signal is directed primarily to other males as
potential friends or coalition partners rather than to females as potential mates.” Id. at 177. It may
also deter other males from taking advantage. See id. at 180.
133. See Browne, Evolutionary Perspective, supra note 101, at 24 (citing a study showing that
“observers tend to find women who use cosmetics more attractive than those who do not”).
134. See E
DWARD
O.
W
ILSON
,
C
ONSILENCE
:
T
HE
U
NITY OF
K
NOWLEDGE
169 (1998) (“With
considerable success, the nuances of this concept [of mating strategy] have been used by scientists
to predict patterns of mate choice and courtship, relative degrees of sexual permissiveness, paternity
anxiety, treatment of women as resources, and polygyny . . . .”); William Irons, Anthropology, in
S
OCIOBIOLOGICAL
I
MAGINATION
,
supra note 49, at 71, 86-89 (offering anthropological support for
predictions of differing parental and mating strategies). For interesting discussions of the different
mating strategies, see A
DAPTED
M
IND
,
supra note 39, pt. III (“The Psychology of Mating and Sex”),
and for studies documenting the differing mating strategies of men and women, see, for example,
B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90; Buss, Mate Preference, supra note 108.
135. Let us not overemphasize the differences between men and women. “Males and females
are still more similar than different, sharing nearly every gene, enzyme, neuron, physical structure,
and motivation. There may be variations in how traits are expressed, but they remain similar, even
indistinguishable.” T
HIESSEN
,
supra note 54, at 326. “‘Tendencies,’ ‘inclinations,’ ‘statistical
variations,’ ‘probabilities,’ ‘overlaps,’ ‘averages,’ and ‘uncertainties’ are the descriptive terms of
most sexual differences.” Id. Stephen Jay Gould, one of the harshest critics of sociobiology, briefly
summarizes the behavioral effects “[f]rom this basic dichotomy of evolutionary purpose” between
men and women, and concludes that the basic argument is correct. S
TEPHEN
J
AY
G
OULD
, The Diet
of Worms and the Defenestration of Prague, in L
EONARDO
’
S
M
OUNTAIN OF
C
LAMS AND THE
D
IET
OF
W
ORMS
251, 263 (1998). But, he cautions, “[w]e can only speak of capacities, not of
requirements or even determining propensities.” Id. at 263-64. None of the evolutionary
psychologists cited in this Article would disagree.
2006] AN EVOLUTIONARY PERSPECTIVE 205
them than are those sought by men. If so, men would be more sexually
selected to engage in rescue attempts than would be women. Evidence
supports this.
136
One would also predict that men and women during their
reproductive years, especially the prime youthful years for obtaining
mates and matings, would be more drawn to daring acts, such as rescues,
than at other times in their life histories.
137
Because young men are less
likely to have some of the qualities sought by women, particularly
wealth and status, they tend to compensate with moxie.
138
The facts may
136. “[W]hen rescue is necessary, it is overwhelmingly men who rescue—particularly when
the rescue is risky.” Hyman, supra note 18, at 672. Of the 676 acts garnering Carnegie medals
between 1989 and 1995, “[a]bout 92 % of the acts of heroism were performed by males . . . .”
Johnson, supra note 59, at 355. See Strate, supra note 42, at 191-92 (“There is ample evidence that
men are more likely than others to engage in dangerous rescues. . . . Men more than women are
attracted to rescue occupations that demand courage . . . .”).
Interestingly, among Carnegie medal winners, “[a] higher proportion of women rescued
relatives or people they knew, and a higher proportion of males rescued people they did not know.”
Johnson, supra note 59, at 355. See Hyman, supra note 18, at 674 (noting that, unlike males,
“females were much more likely to rescue friends or family members than strangers.”). This
suggests that female rescuers are more driven than male rescuers by kin selection and reciprocal
altruism, rather than by sexual selection for which the identity of the rescuee is of less importance.
Furthermore, while studies consistently reveal that men are greater risk-takers than women, “one
respect where women were ready to take greater risks than men [was in] defense of their own
children.” Badcock, PsychoDarwinism, supra note 95, at 464. Browne makes much of this
observation in challenging the benefits of women in the military. See Kingsley R. Browne, Women
at War: An Evolutionary Perspective, 49 B
UFF
.
L.
R
EV
. 51, 80 (2001).
Yet, “[w]ith regard to bystanders, a large number of studies have found no differences
between men and women in rates of helping, but a few have found differences.” Mary R. Laner et
al., Bystander Attitudes Toward Victims of Violence: Who’s Worth Helping?, 22 D
EVIANT
B
EHAV
.
23, 27 (2001). The nature of the required help may explain differences. “Active, doing,
spontaneous, and anonymous acts are more likely to be carried out by men than by women. Women
are more likely to help than men (as a small number of studies have found) when helping is more
planned, formal, personal, and less likely to involve direct intervention.” Id. So again, the helper
under the rescue doctrine is more likely to be male.
137. “[N]on-risky rescues are disproportionately a ‘young person’s game’ and risky rescues
even more so.” Hyman, supra note 18, at 677.
138. “Ancestral subordinate males who had difficulty attracting mates because they lacked
social status and resources may have increased their fitness by increasing the riskiness of their
behavior to obtain these attributes.” Crawford, Theory of Evolution, supra note 88. “[Y]oung
males . . . show a striking sex bias in willingness to engage in behaviors that might be considered
genuinely brave, but also more generally those that any rational individual would consider to be
risky . . . .” Kelly & Dunbar, supra note 122, at 90. Beyond youth alone, “adaptive logic suggests
that the greater risk taking, and hence greater death rate, should occur among men who are at the
bottom of the mating pool and who therefore risk getting shut out entirely.” B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 201. “In short, men low in desirability, as indicated by being
unemployed, unmarried, and young, seem especially prone to risk taking . . . .” Id. See
A
LEXANDER
,
H
UMAN
A
FFAIRS
,
supra note 95, at 244 (“[O]ne expects alternative strategies, such as
behavior that can be considered under the general label of ‘machismo,’ or flash and braggadocio, to
be concentrated in individuals or groups whose likelihood of climbing the ladder of affluence
(‘using the system’ effectively) is lowest . . . .”); W
RIGHT
,
supra note 74, at 262 (“In some modern
206 HOFSTRA LAW REVIEW [Vol. 35:171
bear this out. “Men who are unemployed, unmarried, and young are
greatly overrepresented in risky activities . . . .”
139
For women, there is
no reason to compensate for youth. To the contrary, they wish to display
it.
Yet men and women beyond their main reproductive years can be
expected to engage in some types of daring rescues, perhaps even more
so than younger people. Kin selection, not sexual selection, suggests
this. Once a person’s abilities to produce further offspring or useful
resources for existing relatives diminish, there is more evolutionary
advantage for her to confront danger to rescue kin,
140
especially if they
are in their reproductive or resourceful years.
141
This is still not likely to
lead to many Spider-Gramps and Spider-Grannies. As people age, they
generally become less daring and less physically able.
142
Instead, what
might follow is that seniors who do undertake risky rescues are more
likely to skew their efforts toward relatives than are younger rescuers,
143
especially young males eager to impress.
To summarize, the altruism driven by kin selection, reciprocal
urban neighborhoods . . . [y]oung men who kill get respect—at least within the circle of young men
whose opinions they care about.”). See generally Paul H. Rubin & Chris W. Paul II, An
Evolutionary Model of Taste for Risk, 17 E
CON
.
I
NQUIRY
585 (1979) (presenting “a model which
explains risk seeking by adolescents and risk aversion by mature males as the result of an
evolutionary mechanism”). In the context of rescues, “[a] disproportionate number of Carnegie
Award recipients are individuals with relatively low income, unskilled occupations, or both.”
Hyman, supra note 18, at 678.
139. B
USS
,
E
VOLUTION OF
D
ESIRE
,
supra note 90, at 201 (citing Detroit’s homicide statistics
from 1972).
140. “‘[T]he behaviour of a post-reproductive animal may be expected to be entirely altruistic
[with respect to kin].’” W
RIGHT
,
supra note 74, at 173 (quoting W.D. Hamilton, The Genetical
Evolution of Social Behavior, 7 J.
T
HEORETICAL
B
IOLOGY
1, 21 (1964)). “Typically, self-sacrificing
mothers are found in highly inbred groups, or when mothers are near the end of their reproductive
careers.” S
ARAH
B
LAFFER
H
RDY
,
M
OTHER
N
ATURE
: A
H
ISTORY OF
M
OTHERS
,
I
NFANTS
,
AND
N
ATURAL
S
ELECTION
94 (1999). This parallels the “grandmother hypothesis,” under which post-
reproductive women have extended longevity because they provide valuable resources for their
descendants. See supra note 56. At the extreme are tales of elderly, nonproductive Inuit who
sacrifice themselves in truly desperate times. See Wikipedia, http://en.wikipedia.org/wiki/Inuit (last
visited Oct. 24, 2006) (discussing occasional “assisted suicide”); The Straight Dope Science
Advisory Board, Staff Report, Did Eskimos Put Their Elderly on Ice Floes to Die? (May 4, 2004),
http://www.straightdope.com/mailbag/meskimoicefloe.html (discussing “assisted” and “unassisted”
suicide).
141. See supra text accompanying note 60.
142. On the “Sensation Seeking Scale,” which measures the four dimensions of thrill and
adventure seeking, experience seeking, disinhibition, and boredom susceptibility, “[m]ales always
exceed females, and sensation seeking in general declines in both sexes with age.” K
ONNER
,
supra
note 96, at 132. “There is strongly suggestive evidence of a genetic predisposition . . . .” Id.
143. Posner, in a book often invoking evolutionary psychology, notes that “near the end of the
life cycle[] [a] person may, out of altruistic concern for family or comrades, or selfish concern for
his own reputation, or desire for posthumous fame or glory, sacrifice his life.” P
OSNER
,
supra note
56, at 58. Perhaps, “selfish” in a genetic sense, reputation, fame or glory may bring status to the kin.
2006] AN EVOLUTIONARY PERSPECTIVE 207
altruism and sexual selection satisfies only a weak definition of
“altruism.” These three forces of evolution, like all others, stem from the
selfish gene.
144
Genetic self-interest plays out in various ways that
depend on the circumstances, including the life history of the actor and
the object of the altruistic act. Because evolutionary self-interest can be
manifested in convoluted ways, it may be difficult to identify for
particular acts of altruism. There may even be none in some situations,
for predispositions were selected in ancestral environments much
different from the present ones. Behavioral dispositions may also be
operationally constrained by cognitive abilities that are nowadays
sometimes inadequate to discern self-interest, as where one cannot
directly sense kinship relationships. Furthermore, since a gene may have
multiple effects (“pleiotropy”), any gene selfishly selected for
evolutionary altruism may dispose the actor also to be altruistic when
there is no genetic benefit.
145
Moreover, predispositions can be
overridden or overdetermined by cultural norms that advance other
interests, such as those of the group, persons in power, or a deity.
146
But
one must not be too quick to abandon the search for self-interest.
147
It is
everywhere else in the living world. We should presume that it lurks in
the human one too.
148
Let us see if the actual rescue cases reveal it.
144. “This feature has caused critics to argue that the concept of altruism employed by
sociobiologists is not the same one used by ethicists and the general population.” Thompson, supra
note 41, at 32. See, e.g., V
ON
S
CHILCHER
&
T
ENNANT
,
supra note 81, at 143 (“The forms of
biological altruism defined by sociobiologists bear at best a troubled relationship to the altruism of
everyday moral parlance.”).
145. See B
OEHM
,
supra note 40, at 220 (“Thus, [as a ‘pleiotropic subsidy’] the same gene that
makes for parental investment and helping of other very close kin has a second effect: it also allows
nonkin, at least those with whom strong social bonds exist, to be treated generously.”).
146. See id. at 245-47 (“Value Systems That Favor Altruism”). Perhaps there are genetic
predispositions to follow community norms that sometimes override genetic predispositions to
pursue self-interest. See Trivers, Reciprocal Altruism, supra note 62, at 52.
Some are less sanguine about the possibility of strong altruism. “The pure disinterested
altruists among us—should any exist—form too insignificant a minority, despite the historical
potency of their accumulated actions, to call for special confirmation in the evolutionary order. Like
the necrophiliacs, the cannibals and the gifted idiots in our midst, they form a deviant residue.” V
ON
S
CHILCHER
&
T
ENNANT
,
supra note 81, at 154.
147. Conforming to Darwinian predictions based on kin selection and reciprocal altruism,
anthropologists have found in pre-literate societies that relatives are recipients of giving without the
expectation of reciprocity, nonrelatives who are regular interactors are expected to reciprocate, and
strangers are treated with suspicion, even hostility. See R
USE
,
T
AKING
D
ARWIN
,
supra note 34, at
233-34.
148. For example, two commentators write that “[p]eople often eschew egoistically satisfying
or maximizing behaviors in favor of those judged to be fair[,]” mustering these examples: “[P]eople
with greater power take less than they might in ultimatum bargaining games; people choose to work
for less pay in an organization where pay is distributed fairly; and, when people have control of
scarce resources, they do not sell those resources at their market price . . . .” Tom Tyler & Robyn M.
Dawes, Fairness in Groups: Comparing the Self-interest and Social Identity Perspectives, in
208 HOFSTRA LAW REVIEW [Vol. 35:171
III. T
HE
N
EW
Y
ORK
R
ESCUE
C
ASES
I examined the rescue cases from New York, all sixty-three of
them.
149
In twenty-two of these cases the rescuer was denied recovery
P
SYCHOLOGICAL
P
ERSPECTIVES ON
J
USTICE
87, 87 (Barbara A. Mellers & Jonathan Baron eds.,
1993) (citations omitted). Conversely, people will frequently refuse an “unfair” share even if it
means getting nothing. See Karl Sigmund et al., The Economics of Fair Play, S
CI
.
A
M
.,
Jan. 2002, at
83, 85 (proposing that in ancestral environments it was to one’s advantage not to be known as one
who would be satisfied with a low offer). Tyler and Dawes ascribe this supposedly non-self-
interested behavior to a person’s identification with a group (though this does not seem to address
completely their first and third examples): “Having taken on a self-identity linked to the group,
people voluntarily behave in ways that benefit the group.” Tyler & Dawes, supra, at 102. While
they refer to evolutionary theory, they find it inadequate, in light of expected variations in behavior,
to lead to the conclusion that group-centered behavior will “consistently be extinguished.” Id. at
103. But the dismissal of evolutionary explanations is too quick. The benefits of group solidarity
can be based on reciprocal altruism. Working for less in a fairly paying organization may also be
acceptable because one’s relative status, important for sexual selection, is properly recognized, that
is, one obtains appropriate “positional goods,” which are “goods that are sought after less because of
any absolute property they possess than because they compare favorably with others in their own
class.” R
OBERT
H.
F
RANK
,
C
HOOSING THE
R
IGHT
P
OND
:
H
UMAN
B
EHAVIOR AND THE
Q
UEST FOR
S
TATUS
7 (1985). See also id. at 51-55 (“Properties of the Internal Wage Structure”). Finally,
whether inside or outside a group, being known as an unfair person will decrease one’s
attractiveness under sexual selection. This analysis partially shows that “[a]lmost any item of human
social behavior can be explained in at least four different ways: in terms of evolution, physiological
mechanisms, individual experience and psychology, and cultural organization.” Jerome H. Barkow,
Sociobiology: Is This the New Theory of Human Nature?, in S
OCIOBIOLOGY
E
XAMINED
,
supra note
40, at 171, 181.
149. Hassanein v. Avianca Airlines, 872 F. Supp. 1183 (E.D.N.Y. 1995); Lafferty v.
Manhasset Med. Ctr. Hosp., 429 N.E.2d 789 (N.Y. 1981); Guarino v. Mine Safety Appliance Co.,
255 N.E.2d 173 (N.Y. 1969); Colon v. Margolis, 218 N.E.2d 300 (N.Y. 1966); People v. Young,
183 N.E.2d 319 (N.Y. 1962); Rague v. Staten Island Coach Co., 42 N.E.2d 488 (N.Y. 1942);
Fitzpatrick v. Int’l Ry. Co., 169 N.E. 112 (N.Y. 1929); Wagner v. Int’l Ry. Co., 133 N.E. 437 (N.Y.
1921); Waters v. William J. Taylor Co., 112 N.E. 727 (N.Y. 1916); Gibney v. State, 33 N.E. 142
(N.Y. 1893); Spooner v. Del., Lackawanna & W. RR. Co., 21 N.E. 696 (N.Y. 1889); Eckert v. Long
Island R.R., 43 N.Y. 502 (1871); Gifford v. Haller, 710 N.Y.S.2d 187 (App. Div. 2000); Villarin v.
Onobanjo, 714 N.Y.S.2d 90 (App. Div. 2000); Villoch v. Lindgren, 703 N.Y.S.2d 131 (App. Div.
2000); Butler v. County of Chautauqua, 689 N.Y.S.2d 577 (App. Div. 1999); Cannavale v. City of
N.Y., 683 N.Y.S.2d 528 (App. Div. 1999); Del Vecchio v. State, 667 N.Y.S.2d 401 (App. Div.
1998); George v. State, 674 N.Y.S.2d 742 (App. Div. 1998); Hanna v. Ford Motor Co., 675
N.Y.S.2d 125 (App. Div. 1998); Sullivan v. 673 First Ave. Assocs., 673 N.Y.S.2d 82 (App. Div.
1998); Tassone v. Johannemann, 648 N.Y.S.2d 708 (App. Div. 1996); Bottillo v. Poette, 544
N.Y.S.2d 47 (App. Div. 1989); Ha-Sidi v. S. Country Cent. Sch. Dist., 539 N.Y.S.2d 47 (App. Div.
1989); O’Keeffe v. State, 530 N.Y.S.2d 911 (App. Div. 1988); Roth v. City of N.Y., 516 N.Y.S.2d
36 (App. Div. 1987); Scott v. Mead, 517 N.Y.S.2d 320 (App. Div. 1987); Wignes v. Bottger, 518
N.Y.S.2d 936 (App. Div. 1987); Brogan v. Zummo, 459 N.Y.S.2d 293 (App. Div. 1983); Snyder v.
Kramer, 463 N.Y.S.2d 591 (App. Div. 1983); Moore v. Shah, 458 N.Y.S.2d 33 (App. Div. 1982);
Rodriguez v. N.Y. State Thruway Auth., 440 N.Y.S.2d 49 (App. Div. 1981); Rucker v. Andress,
327 N.Y.S.2d 91 (App. Div. 1971); Provenzo v. Sam, 280 N.Y.S.2d 308 (App. Div. 1967); Eufemia
v. Pacifico, 261 N.Y.S.2d 100 (App. Div. 1965); Lieberthal v. Engels, 177 N.Y.S.2d 463 (App. Div.
1958); Paul v. Flag Fish Co., 180 N.Y.S.2d 73 (App. Div. 1958); Alessi v. Kew Gardens
Luncheonette, Inc., 168 N.Y.S.2d 324 (App. Div. 1957); Luce v. Hartman, 168 N.Y.S.2d 501 (App.
Div. 1957); Hallett v. Stanley Stores Cleaners & Dyers, Inc., 94 N.Y.S.2d 622 (App. Div. 1950);
2006] AN EVOLUTIONARY PERSPECTIVE 209
because the rescue doctrine was found not to apply for various reasons,
including that it did not extend to the rescued property in question, or to
rescues of the general public, or where other laws applied, the rescuer
assumed the risk, or the rescuee was not in imminent peril.
150
These
cases are left in the chart below because they still mostly involve daring
behavior by the rescuer. Furthermore, sometimes the posture of the case
did not directly divulge whether the danger to the rescuer was high or
low, so some reading between the lines was required. As might be
expected, the case reports do not reveal nearly enough information to
draw strong conclusions about whether their facts are consistent with the
intricate predictions of the principles of evolutionary psychology. For
example, even when a family relationship between the rescuer and
rescuee is mentioned, a few cases did not reveal whether the connection
is by blood or marriage (e.g., uncle/niece, cousin/cousin). And since the
cases extend over a period of two centuries, it was not realistic to contact
the attorneys or other parties to fill in the missing data. With this caveat,
the relevant discernible information is below.
T
HE
N
EW
Y
ORK
R
ESCUE
C
ASES
Total cases: N=63
Cases granting recovery: N=41 [in brackets]
Carney v. Buyea, 65 N.Y.S.2d 902 (App. Div. 1946); Bernardine v. City of N.Y., 51 N.Y.S.2d 888
(App. Div. 1944); Cooper v. Brooklyn & Queens Transit Corp., 292 N.Y.S. 79 (App. Div. 1936);
Laufer v. Shapiro, 206 N.Y.S. 189 (App. Div. 1924); Smith v. Erie R.R. Co., 169 N.Y.S. 831 (App.
Div. 1918); Hollaran v. City of N.Y., 153 N.Y.S. 447 (App. Div. 1915); O’Brien v. Erie R.R. Co.,
123 N.Y.S. 1040 (App. Div. 1910); Manzella v. Rochester Ry. Co., 93 N.Y.S. 457 (App. Div.
1905); Muhs v. Fire Ins. Salvage Corps of Brooklyn, Long Island, 85 N.Y.S. 911 (App. Div. 1903);
Manthey v. Rauenbuehler, 75 N.Y.S. 714 (App. Div. 1902); Healy v. Vorndrain, 72 N.Y.S. 877
(App. Div. 1901); Hirschman v. Dry-Dock, E. Broadway & Battery R.R. Co., 61 N.Y.S. 304 (App.
Div. 1899); Sann v. H.W. Johns Mfg. Co., 44 N.Y.S. 641 (App. Div. 1897); Klejmont v. Sperber,
431 N.Y.S.2d 308 (Sup. Ct. 1980); Prior Aviation Serv., Inc. v. State, 418 N.Y.S.2d 872 (Ct. Cl.
1979); Sirianni v. Anna, 285 N.Y.S.2d 709 (Sup. Ct. 1967); Farber v. Bryce, 244 N.Y.S.2d 212
(Civ. Ct. 1963); Talbert v. Talbert, 199 N.Y.S.2d 212 (Sup. Ct. 1960); Landby v. New York, N.H.
& H. R.R. Co., 105 N.Y.S.2d 836 (Sup. Ct. 1950); Malone v. Liss, Inc., 162 N.Y.S.2d 637 (City Ct.
1957); Pope v. State, 96 N.Y.S.2d 708 (Ct. Cl. 1950); Breslin v. State, 72 N.Y.S.2d 62 (Ct. Cl.
1947); Seldin v. Nixon Realty Corp., 275 N.Y.S. 438 (City Ct. 1934).
150. Hassanein, 872 F. Supp. at 1188; Lafferty, 429 N.E.2d at 790; Young, 183 N.E.2d at 319;
Waters, 112 N.E. at 727; Cannavale, 683 N.Y.S.2d at 529; Del Vecchio, 667 N.Y.S.2d at 403;
George, 674 N.Y.S.2d at 744; Hanna, 675 N.Y.S.2d at 127; Tassone, 648 N.Y.S.2d at 708; Ha-Sidi,
539 N.Y.S.2d at 49; Wignes, 518 N.Y.S.2d at 938; Brogan, 459 N.Y.S.2d at 295; Moore, 458
N.Y.S.2d at 33-34; Provenzo, 280 N.Y.S.2d at 310; Eufemia, 261 N.Y.S.2d at 101; Alessi, 168
N.Y.S.2d at 325; Luce, 168 N.Y.S.2d at 506; Smith, 169 N.Y.S. at 834; Klejmont, 431 N.Y.S.2d at
309; Sirianni, 285 N.Y.S.2d at 712; Landby, 105 N.Y.S.2d at 838; Pope, 96 N.Y.S.2d at 715.
210 HOFSTRA LAW REVIEW [Vol. 35:171
Sex of Rescuer
Male 43 [30]
Female 16 [9]
Multiple 4 [2]
Male group 3 (8 total) [2 (6)]
Female group 0 [0]
Mixed group 1 (2 M, 1 F) [1 (2,1)]
Sex of Rescuee
Male 26 [21]
Female 9 [6]
Multiple 11 [8]
Male group 0 [0]
Female group 1 [1]
Mixed/general public 10 [7]
Unspecified 11 [6]
Property 6 [0]
Relationship between Rescuer and Rescuee
Family (blood or marriage) 14 [9]
Male Rescuer 8 [5]
Female Rescuer 6 [4]
Acquaintances/Co-Workers/Neighbors 16 [11]
Male Rescuer 13 [8]
Female Rescuer 3 [3]
Strangers 12 [7]
Male Rescuer 9 [6]
Female Rescuer 3 [1]
Unspecified 13 [12]
Property/General Public 8 [2]
Danger to Rescuer
Rescuer Died 14 [13]
Male 11 [10]
Female 3 [3]
Major Injury to Rescuer 23 [16]
Male 16 [11]
Female 7 [5]
Minor or No Injury to Rescuer 26 [13]
Male 20 [12]
Female 6 [1]
2006] AN EVOLUTIONARY PERSPECTIVE 211
The strongest finding is that, as predicted, males are more likely to
be rescuers than are females. Another one is, surprisingly, that
acquaintances, co-workers and neighbors are about as likely to be the
rescuees as are family members. This might be due, at least in part, to
the fact that in daily activities a person probably comes across more
familiar persons than kin and hence has more chances to rescue non-kin
than kin. But, as has been anticipated by evolutionary psychologists,
female rescuers are proportionately more likely to rescue kin than these
others.
151
Perhaps this skewing of male and female rescues is partially
due to their opportunities, as where men were historically more likely to
be around co-workers than were women, and women were more likely to
be around kin—and possibly neighbors—than men.
152
As predicted,
strangers are much less likely to be rescued even though, probably, one
crosses paths with more strangers than others. Interestingly, female
rescuers are about as likely as males to suffer death or major injury,
thereby suggesting that their attempted rescues are equally dangerous to
them.
IV. C
ONCLUSION
Risky rescues are encouraged by the law, honored by society, and
explicable in evolutionary terms. There is no question that the rescue
doctrine is well established in the law. Injured rescuers of those in peril
through tortious behavior have an independent, direct cause of action
against the tortfeasors, or even against rescuees who endanger
themselves through negligent behavior. Beyond the courtroom, society
often treats rescuers as altruistic heroes. Headlines regularly evince this.
That rescuers are altruists, however, is a viewpoint that seems to run
afoul of the notion of the selfish gene that largely grounds evolutionary
thinking. Under this notion, fitness is measured by reproductive success,
that is, by the extent to which one leaves one’s genes in the gene pool.
Altruism, on the other hand, traditionally refers to the willingness to
sacrifice personal interests for those of another person. Although it
might seem that any such genetically disposed selfless behavior would
be driven out of the gene pool, evolutionary psychologists have
developed various theories to account for it. I have considered the three
main ones: kin selection, reciprocal altruism, and sexual selection.
151. See supra note 136.
152. “To be sure, [the disparity between male and female rescuers] is likely affected by access
and opportunity.” Hyman, supra note 18, at 675. “However, the rescuer gender imbalance has been
quite stable throughout the entirety of the twentieth century—even as female participation in the
work force has increased dramatically.” Id.
212 HOFSTRA LAW REVIEW [Vol. 35:171
Each of the three evolutionary theories of altruism implies that
rescue efforts will be routed in particular directions. Under kin selection,
rescuers of relatives serve their own genetic self-interest through the
reproductive success of their rescued relatives. Since procreation is the
key, the rescue of a near relative without reproductive prospects is not as
beneficial as the rescue of a less near one, though with fewer genes in
common, with high prospects. In general, choices about whom to rescue,
how much effort to expend, and the degree of risk to confront turn on the
likelihood that the rescuee will enrich the gene pool with genes shared
with the rescuer.
Under reciprocal altruism, a risky rescue of even an unrelated
person may be genetically beneficial once one takes into account the
likelihood that the rescuee will later return the favor or the rescue will
induce others to do so. This may lead to conduct that seems curious or
unsettling, as where the rescue of a wealthy person is preferred to that of
a poor one, or the neighbor over the stranger, because the chosen rescuee
will be in a better position to reciprocate later.
Finally, under sexual selection, the prospective genetic payoff of a
rescue is measured by the likelihood that it will increase the rescuer’s
success in obtaining a better mate or matings. Here the interests of
females and males differ because females, as mammals, can produce
fewer offspring than can men. Men, would then probably benefit more
than women from displaying, by means of risky rescues, traits attractive
to those seeking matings, who are largely seeking “good” genes. When it
comes to mates, on the other hand, women are disposed to prefer men
who are better protectors and providers, while men desire women who
are fecund. In the context of the rescue doctrine, women would be drawn
to potential mates who display qualities associated with their
preferences, such as strength, daring and kindness, while men would be
attracted to women who reveal qualities associated with theirs, such as
youth and health. The actual rescues by men and women should
generally reflect the opportunities they provide to demonstrate the
desired qualities. Because the traits sought by women in a mate as well
as a mating seem more connected to risky rescues than vice versa, it is
expected that sexual selection will induce men to undertake risky rescues
more often than women.
A survey of the New York rescue cases uncovered facts consistent
with some of the broad predictions from evolutionary thinking, but too
little data to reveal nuances. Left out of most case accounts were
relevant data, such as the ages of the rescuers and rescuees, the marriage
status of the rescuer, the familiarity of the parties, and the attractiveness,
wealth or prominence of the rescuee. Nevertheless, arguably enough
2006] AN EVOLUTIONARY PERSPECTIVE 213
support for evolutionary principles in this context is apparent to consider
them for legal analysis.
One place that evolutionary thinking may help the law of rescues,
and other legal doctrines, is in formulating the applicable rights and
remedies in light of the purposes of the law. In pursuing this, I will
address only some of the prior lessons of evolutionary biology as
illustrative examples of the range of considerations. Rehearsing again
the diverse, tangled threads of evolutionary thinking seems unnecessary
to point out the applicability of its predictions to the law.
If, say, a purpose of rescue law is to compensate the rescuer for her
harms under a notion of corrective justice,
153
then the examination of
evolutionary effects may prove helpful. The version of corrective justice
that reigns in tort law is, basically, that if one person harms another
through blameworthy—negligent—conduct, then the agent is to
compensate the victim to the extent of the harm. In a broad sense, a
“harm” is a “setback to interest.”
154
Evolutionary analysis identifies
particular interests and their magnitude. For example, under kin
selection, a rescuer has a greater interest in close relatives than in more
distant ones, or to nonkin. Whereas, under reciprocal altruism, a rescuer
has a greater interest in fellow cooperators than in strangers. While
under established legal doctrine a court will not take these varying
interests into account in awarding damages to the rescuer, certainly they
are relevant in judging whether the rescuer was contributorily
negligent—i.e., acted reasonably—in undertaking a risky rescue. Since a
rescuer suffers greater harm from risks to kin than to strangers, it is
rational to take greater risks to rescue kin, and so forth. And as
foreseeability is an element of negligence,
155
these same considerations
affect how foreseeable it is to the agent that particular persons will
undertake risky rescues under the circumstances.
156
To the extent that a purpose of rescue law is, or should be, under a
version of distributive justice, to reward the rescuer for her merit or just
153. Weinrib is a leading champion of this position, not only for tort law but also for all private
law. See E
RNEST
J.
W
EINRIB
,
T
HE
I
DEA OF
P
RIVATE
L
AW
56-83 (1995).
154. J
OEL
F
EINBERG
,
H
ARM TO
O
THERS
:
T
HE
M
ORAL
L
IMITS OF THE
C
RIMINAL
L
AW
33
(1984). “If I have an interest, in this sense, in the Apex Chemical Company, I have a kind of stake
in its well-being.” Id. “In general, a person has a stake in X (whether X be a company, a career, or
some kind of ‘issue’ of events) when he stands to gain or lose depending on the nature or condition
of X.” Id. at 33-34. Of course, not all harms are found to be legally cognizable injuries.
155. See, e.g., D
OBBS
,
supra note 1, § 143, at 334; P
ROSSER AND
K
EETON ON THE
L
AW OF
T
ORTS
§ 31, at 169-70 (W. Page Keeton et al. eds., 5th ed. 1984).
156. Recall that courts are already generous in finding rescue attempts foreseeable. See supra
note 7 and accompanying text.
214 HOFSTRA LAW REVIEW [Vol. 35:171
deserts,
157
evolutionary thinking points in distinct directions.
158
Because
it seems less virtuous to act in one’s self-interest than otherwise, one’s
biological interest in kin diminishes the merit of undertaking risky
rescues of them. Similarly, it diminishes the merit of rescues with
respect to risks for fellow cooperators compared with strangers. Contrary
to the arguments above from corrective justice, pursuing this conception
of distributive justice points to less generosity to rescuers of kin than of
strangers.
Leaving the autonomy-centered principles of corrective and
distributive justice, different legal effects are suggested by the
consequentialism of social welfare goals. Insofar as the rescue doctrine
is to deter inefficient behavior by the tortfeasor, the relationship of the
rescuer and rescuee may seem largely irrelevant. Under the Hand
formula, unreasonably putting the rescuee and rescuer at risk turns on a
cost/benefit analysis from the agent’s viewpoint, not from the potential
victim’s.
159
For example, that a potential rescuer values kin more than
strangers does not affect the agent’s valuation of the benefits to her of
her act. It may, however, affect the agent’s calculation of the potential
costs of her conduct. She has reason to believe that the kin of those at
risk are more likely to undertake dangerous rescues than are strangers—
so that negligent conduct toward persons at a family reunion may cause
more injuries than similar conduct toward a crowd of mutual
strangers.
160
Thus, the careless behavior at a family reunion is more
likely to be inefficient, that is, detrimental to social welfare.
157. For the argument that this is currently not a purpose, see supra text accompanying notes
12-18.
158. There are at least six conceptions of personal desert. By way of example, I examine only
one of the prominent ones, “[t]o each according to his or her virtue.” See, e.g., Diana T. Meyers,
Introduction to E
CONOMIC
J
USTICE
:
P
RIVATE
R
IGHTS AND
P
UBLIC
R
ESPONSIBILITIES
1, 1-2
(Kenneth Kipnis & Diana T. Meyers eds., 1985). For more on the conceptions of desert, see C
H
.
P
ERELMAN
,
T
HE
I
DEA OF
J
USTICE AND THE
P
ROBLEM OF
A
RGUMENT
6-11 (John Petrie trans.,
1963); N
ICHOLAS
R
ESCHER
,
D
ISTRIBUTIVE
J
USTICE
:
A
C
ONSTRUCTIVE
C
RITIQUE OF THE
U
TILITARIAN
T
HEORY OF
D
ISTRIBUTION
73-83 (1966). See generally G
EORGE
S
HER
,
D
ESERT
(1987).
159. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). See generally
D
OBBS
,
supra note 1, § 145, at 340-43; P
ROSSER AND
K
EETON ON THE
L
AW OF
T
ORTS
,
supra note
155, § 31, at 171-73.
160. As seen in the tort doctrine, some courts apparently recognize this increased harm to
relatives by allowing recovery for the negligent infliction of emotional harm. Under this doctrine,
“[w]hen the defendant was negligent and emotional harm was foreseeable and caused in fact by his
negligence, most courts today do allow many recoveries for stand-alone emotional harm.” D
OBBS
,
supra note 1, § 308, at 836. But “[w]hen the plaintiff suffers emotional harm because a stranger
creates a risk or causes an injury to another person, almost all courts apply some kind of special rule
to limit the cases in which the bystander-plaintiff can recover.” Id. § 312, at 848. Under the leading
case of Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968), one of the factors, later made a requirement,
is that the injury or threat be to a close relative. See D
OBBS
, supra note 1, § 309, at 841.
2006] AN EVOLUTIONARY PERSPECTIVE 215
Finally, if recovery under the rescue doctrine is partially aimed at
inducing potential rescuers to increase social welfare by saving others,
then rescues of kin need less legal inducement than do those of
strangers. The workings of evolution have already created substantial
incentives for rescuing relatives. On the other hand, for dangerous
rescues of strangers, more generosity in finding the rescuer’s conduct
reasonable, or higher damage recoveries, must do some of the
incentivizing work that kin selection neglects.
To conclude, the last several decades have seen remarkable
advances in evolutionary psychology. It is time for the law to pay
attention to them.
