Nicholas McBride, ‘Rights and the Basis of Tort Law’

This is the first in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).

In this paper, I try to clear up certain confusions that have entered into the writings of academics who argue – like me – that liabilities to pay damages in tort arise out of someone’s rights being violated. These confusions arise out of ambiguities in the term ‘right’, which make it necessary to clarify what kinds of rights we are talking about as having been violated when a tort has been committed. I argue that the commission of a tort always involves the violation of a right that someone act in a particular way, and that it is unhelpful to think of a tort as involving the violation of a right to some protected liberty or interest. I go on to set out a ‘balanced’ approach for determining what rights we have against other people that they act in particular ways, which involves weighing the interests of the right holder against the person who would be burdened with the right, and takes into account any social interests that might be harmed by the existence of that right, and argue that the law adopts such a ‘balanced’ approach in determining what rights we have against other people.

I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.

McBride, Nicholas, Rights and the Basis of Tort Law (August 20, 2014). Nolan and Roberton (eds), Rights and Private Law (Hart Publishing, 2011).

First posted 2014-08-23 09:29:03

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