Risky Rescues and the Duty to Blow the Whistle

Abstract

This paper argues that while the idea of whistleblowing as a positive duty to do good or to prevent harm may be defendable, legislating that duty is not feasible. We develop our argument by identifying rights and duties involved in whistleblowing as two clusters: one of justice and one of benevolence.

Legislative arguments have evolved to cover the justice issues and the tendency exists of extending rights and duties into the realm of benevolence.

The paper considers the problematic assumptions and implications of whistleblowing as a positive duty, by examining the extent to which the Good Samaritan argument holds with regard to whistleblowing.

We argue that three criteria necessary for whistleblowing as a legally enforceable positive duty are not met, namely that we need to be able to (1) specify who should know what, (2) minimise the risk to the whistleblower, and (3) adequately deal with mistaken concerns being raised.

Keywords: duty, legislation, obligation, right, whistleblowing, whistleblowing policies

JEL Classification: J53, J59, M12, M14