Do You Save Your Mother Or Your Girlfriend On The Chinese Bar Exam?

In America, a moral quandary about saving your mother or your girlfriend from a burning building would be an adequate paper topic in a freshman ethics course. Most people would get Bs on that paper. The person who writes, “Women are not damsels to be saved by the patriarchy and are quite capable of escaping on their own two feet,” would get an A and probably get the professor fired. Sophie’s Choice-type questions are typical in the university bubble of theoretical musings.

The question would be inappropriate on a standardized test, like the Multistate Bar Exam, because there is no right answer. The law doesn’t care if you save either person or nobody at all, so long as you didn’t start the fire or prevent anybody else from getting out. There’s no clear moral choice either. I don’t know who I’d save, but luckily I’ll never have to make that choice because I’m not a superhero trapped in a Sam Raimi movie.

In China, apparently, there is a right answer. And so the question was on this year’s National Judicial Examination. The Chinese NJE is like the bar exam for Chinese judges, only it’s really hard and, like, in Chinese I’m guessing. This year, they asked prospective jurists who they would save.

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Then, the Chinese Ministry of Justice posted the correct answer. From BBC:

[E]xam writers are duty-bound to save their mothers. It would be a “crime of non-action” to choose romantic love over filial duty.

In our common law system, we generally don’t criminally punish people for a failure to act. Moral duties, including duties owed to one’s family (be they blood relatives or recognized by the authority of Kim Davis), are not enforceable unless codified under a specific contract or statute.

In fact, generally speaking, our “good samaritan” laws are there to protect people who try to help, but actually make things worse.

I say “generally” because the giant exception would be the duty to care for your children. If you, for instance, simply stop feeding your child, your crime of omission can still result in criminal penalties.

Beyond that, go nuts. One of the things that makes America great is that you are not legally bound to give a crap about anybody else.

Evidently, China is different in that regard. The duty to one’s family is a legal concept, not merely a moral precept. I imagine that the “mom or girlfriend” choice is a pretty easy one for a Chinese jurist to make. But I wonder if the question is more tricky if it’s “mother or wife.” I think I don’t want to hear China’s answer on “father or mother” or “brother or sister.”

While it seems ridiculous for Chinese law to provide a definitive answer to who you should save from a burning building, it starts from the assumption that you should save someone, if you can. That’s the critical difference between Chinese law and American law.

And I’m not sure that the American answer is any better than the Chinese answer.

Also on Above the Law: The Flori-duh Version of Good Samaritans