Torts and Rights

Abstract

Abstract The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as we find it in the common law. A rival (mis-) conception — exemplified judicially by the decision of the House of Lords in Anns v Merton and academically by Oliver Wendell Holmes' The Common Law, is that the law of tort (singular) is concerned with compensating those who suffer loss because of the fault of another. In order to make good the book's major theoretical claim, the detail of legal doctrine, as found within all common law jurisdictions, is carefully examined. Rather than examine each individual tort, as would be done by a textbook, the concepts central to this and other areas of law are subject to scrutiny. The internal map of the law of torts, and where torts belong within the law more generally, is redrawn. The so-called ‘tort of negligence’ must be abandoned as an organising idea. Further, the common law rights we have, one against another, are sourced in our moral, human, or natural rights, not in the pursuit of any social policy or goal. Finally, by comparing the common law with civilian jurisdictions profound structural differences are disclosed, with consequent differences in the outcome of disputes.

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