Torts and Rights

Citation

Stevens, R. (2009). Torts and Rights. Oxford University Press. Paperback; first published in hardback in 2007.

Chapter Summary

Torts and Rights is a single-argument monograph on the law of torts in 16 chapters. Its starting point, as the publisher puts it, is that the law of torts is concerned with the secondary obligations generated by the infringement of primary rights, and that this apparently simple proposition lets the reader understand the common-law law of torts. The book relies mainly on English materials, draws heavily on other common-law jurisdictions, and uses the core material familiar from any course in tort to support one thesis. Lord Hoffmann's foreword is among the front matter. The chapter titles, in order, are as follows.

Chapters 1–2: Introduction; Rights

The introduction opens the argument, and the second chapter, Rights, lays the groundwork for the model: tort law as the law of the secondary obligations that arise when a primary right is infringed.

Chapters 3–4: Loss; Remedies

Loss and Remedies address what a claimant must show and what follows once a right has been infringed, placing loss and remedial relief within the rights-based account.

Chapters 5–7: Fault; Remoteness; Causation

Three chapters take up familiar elements of tort liability: fault, remoteness and causation, discussed within the rights-based account.

Chapters 8–9: Privity; Concurrent Liability

These chapters take up privity and concurrent liability, the questions that arise where tort and contract meet.

Chapters 10–12: Attribution; Accessories; Public Bodies

Three chapters deal with attribution, accessories and public bodies: responsibility for the conduct of others, liability connected with another person's wrong, and the position of public bodies.

Chapters 13–16: Policy; Classification; Comparison; Conclusion

The closing chapters turn to policy, classification and comparison, and end with a conclusion. These are where the book places its model beside other ways of thinking about the law of torts.

Key Concepts

Chapters 1–4

• Primary and secondary obligations: the duty not to infringe a right, and the obligation that arises from infringing it.
• Rights: the primary rights whose infringement the law of torts addresses.
• Loss and remedies: how loss and remedial relief are treated within the rights-based account.

Chapters 5–9

• Fault, remoteness and causation: familiar elements of tort liability, discussed within the rights-based account.
• Privity and concurrent liability: the relationship of tort to contract.

Chapters 10–16

• Attribution and accessories: responsibility connected with the conduct of others.
• Public bodies: tort liability of public authorities.
• Policy and classification: the place of policy arguments and the way the subject is classified.

Critical Analysis

Strengths

• A single argument across the whole subject. The book develops one theoretical model and applies it to elements, defendants and remedies, so that it works as an overarching framework for rethinking the subject.
• Anchored in familiar material. The publisher stresses that it relies on the core material known to students and practitioners with a grasp of tort law, and its chapters carry recognisable titles: fault, remoteness, causation, public bodies.
• Comparative reach. It uses English cases but draws heavily on other common-law jurisdictions.
• Reception. Reviewers across the main journals responded to it. Peter Cane in the Modern Law Review wrote that it deserves a large audience, John Murphy in the Oxford Journal of Legal Studies called it packed with valuable insights, and Sarah Green in the Cambridge Law Journal wrote that few will be able to deny the coherence of the presentation.
• Accessible style. The publisher describes the style as provocative and accessible, and Philip Brodie in the Edinburgh Law Review recommended it for those who like their law with the spice of controversy.

Limitations

• Contestable thesis. Sarah Green's review notes that readers may not agree with all of the conclusions, and the book is partisan in the sense that it advances one theory.
• Not a practitioner's text. Brodie observes that it may not be the text for a practitioner who wants law pre-processed for use in court.
• Dated. The book first appeared in 2007, so it predates later decisions of the Supreme Court and the debates that followed.
• Not an introduction. The publisher's stated readership is academics, scholars and students of comparative law, torts and legal theory, and the argument proceeds from the core material of tort law, not from a first account of it.

Where It Fits in the Course

This is the theoretical monograph in the tort-law list. Horsey and Rackley's Tort Law, Nicholas McBride's Tort Law, Lunney's Tort Law: Text and Materials, Christian Witting's Street on Torts and the Markesinis and Deakin and Winfield and Jolowicz volumes are textbooks for readers meeting tort law, covering negligence and other torts. Peter Cane and James Goudkamp's Atiyah's Accidents, Compensation and the Law approaches tort as one compensation system among others, from a policy and contextual standpoint, and is a natural contrast to Stevens's rights-based account. Gatley on Libel and Slander is a specialist treatment of defamation. Stevens fits best after a standard tort textbook, when the question moves from what the rules are to how they fit together.

How to Use This Book

The book suits advanced undergraduates, postgraduates and researchers interested in private-law theory, who have completed a tort course and know negligence, causation and remedies.

A practical reading plan:

• Core: Chapter 1 and Chapter 2 for the model, then Chapters 3 and 4 on loss and remedies.
• Doctrinal chapters: Chapters 5 to 7 on fault, remoteness and causation, read beside a standard textbook account of each.
• Selective: Chapters 8 and 9 for privity and concurrent liability, and Chapter 12 for public bodies.
• Closing chapters: Chapters 13 to 16 on policy, classification and comparison, for the wider argument.
• Alongside: read the review literature, including the Cane, Neyers and Green reviews, and set Stevens against the compensation-based approach in Cane and Goudkamp.