Torts, Rights, and Right-Wing Ideology

Abstract

Recent years have seen a resurgence of rights-based theories of tort law. These accounts are often presented by their proponents as reflecting the true nature of tort law, which they claim has been corrupted by the infiltration of alien and distorting ideas. Though such ideas have been challenged for the extent to which these faithfully explain contemporary tort law, they have not been examined for their political ideology. I do so in this essay by focusing on two books defending such a rights-based account of tort law. I show that both of them, while purporting to present an account of tort law based purely on observation of legal practice and an analysis of legal concepts, are in fact defending an ideologically right-wing explanation of tort law. After demonstrating how these books defend and criticise various doctrines on the basis of such an ideology, I consider and reject the objection that whatever political bias there may be in these arguments, it is not of the authors’ but rather something found in the law itself. I conclude that whether or not any rights-based version of tort law is desirable, it should not be presented as an account of what tort law is, but rather as part of a political theory about the appropriate relationships between individuals and the state.