Tort Law and Human Flourishing

Pitel, Neyers and Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing, 2013)

University of Cambridge Faculty of Law Research Paper No. 55/2014

32 Pages Posted: 22 Aug 2014 Last revised: 18 Sep 2014

See all articles by Nicholas McBride

Nicholas McBride

University of Cambridge - Faculty of Law

Date Written: August 20, 2014

Abstract

This is the second 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 argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having 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.

Keywords: tort, tort law, negligence, nuisance, jurisprudence, rights, human flourishing, Finnis

JEL Classification: K10, K13

Suggested Citation

McBride, Nicholas, Tort Law and Human Flourishing (August 20, 2014). Pitel, Neyers and Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing, 2013), University of Cambridge Faculty of Law Research Paper No. 55/2014, Available at SSRN: https://ssrn.com/abstract=2483708

Nicholas McBride (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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