Francois Du Bois, ‘Harassment: A Wrong Without a Right?’

The statutory tort of harassment has emerged as a wrong of astonishing versatility, often providing claimants with a way round the strict requirements of the common law torts as well as the more targeted rules contained in anti-discrimination legislation. This is no accident. The Protection from Harassment Act 1997 (PHA) was enacted with the specific purpose of creating a wrong that could be committed regardless of whether an existing right was being infringed, attacked or even threatened. Yet the central feature of the common law of torts has long been that he wrongfulness of an act turns on whether it has infringed an interest sufficiently important to be the object of an individual right. Does this modern home-grown equivalent of the Roman delict of iniuria therefore compromise the integrity of tort law?

This paper shows that harassment law, as crafted jointly by Parliament and the courts, distinguishes among harms on the basis of whether they result from a targeted reprehensible flouting of ‘civility rules’. Only courses of action that pass this test constitute harassment. It argues that this represents a viable alternative to the standard rights-based approach of the common law torts. Harassment is concerned with duties of manner, a species of duties which not only can be distinguished from rights-based duties, but in this instance also should be kept separate from rights. The rights-based approach ensures that the common law of tort complies with the Harm Principle, but this is not the only way in which compliance can be secured. Robert Audi’s discussion of a ‘wrong within a right’ helps both to highlight why it is vital to maintain the distinctive conceptual content of the notion of a right and to illustrate the possibility of wrongs which do not consist in violations of rights. The PHA’s core concern is the manner in which people exercise what one might call their residual general right to freedom of action and self-actualization – the freedom that is left over after due account has been taken of the obligations imposed by the rights of others. The civility rules by means of which the courts pursue this concern are, like the duties of friendship, special claims generated by a relationship involving mutual commitment and concern. They reflect justified expectations arising from the bonds of ‘civic friendship’ about the manner in which members of society are to exercise this residual general right. A violation of such expectations is wrong even though it takes place ‘within’ this right.

This relationship between harassment and civility rules affirms the parallel with the Roman delict of iniuria. The paper concludes that this connection with the civilian tradition is interesting in its own right, but also, and importantly, means that the PHA is a valuable element in the approximation of English and Scots law to the protection of dignity as foreseen in the Principles of European Tort Law and the Draft Common Frame of Reference.

Du Bois, Francois, Harassment: A Wrong Without a Right? (January 9, 2013). Eric Descheemaeker & Helen Scott (eds.) Iniuria and the Common Law (Oxford, Hart Publishing: 2013), Forthcoming.

First posted 2013-08-14 07:03:47

Leave a Reply