Rights and Responsibility in the Law of Torts
John C. P. Goldberg
Harvard Law School
Benjamin C. Zipursky
Fordham University School of Law
D. Nolan & A. Robertson (eds.), Rights and Private Law, pp. 251-274, (2012)
Fordham Law Legal Studies Research Paper No. 2076341
Harvard Public Law Working Paper No. 12-25
An adequate understanding of tort law requires distinguishing four senses in which “rights” figure in tort. First and most obviously, tort law imposes duties on actors to refrain from injuring others that are correlative to rights not to be injured in the ways proscribed by tort law. Second, tort law confers on one who suffers a violation of the right of non-injury a right of action, i.e., a legal power to hold the tortfeasor liable. Third, the legal power conferred on tort victims is grounded in a duty owed by the state to its citizens and their corresponding right to an avenue of civil recourse against those who have wronged them. Finally, the victim’s right against the state to law for the recourse of wrongs derives in part from the natural right – or, more precisely, the natural privilege – of individuals to make certain demands of those who have wronged them. By distinguishing among the kinds of rights involved in tort law, and explaining how they connect to one another, civil recourse theory explains more satisfactorily than other theories the particular sense in which tort is a law of rights and responsibilities.
Number of Pages in PDF File: 24
Keywords: Civil Recourse, Coleman, Corrective Justice, Epstein, Fletcher, Hohfeld, Perry, Privilege, Recourse, Reciprocity, Redress, Relational Duties, Responsibility, Rights of Action, Ripstein, Rights, Torts, Tort Law, WrongsAccepted Paper Series
Date posted: June 19, 2012 ; Last revised: October 20, 2012
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