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Rights and Responsibility in the Law of Torts

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

24 Pages Posted: 19 Jun 2012 Last revised: 20 Oct 2012

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: 2012

Abstract

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.

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, Wrongs

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Rights and Responsibility in the Law of Torts (2012). 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. Available at SSRN: https://ssrn.com/abstract=2076341

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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