Torts and Rights by Robert Stevens
| Published date | 01 July 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00710.x |
| Author | Peter Cane |
| Date | 01 July 2008 |
REVIEWS
Robert Stevens, Torts and Rights,Oxford: Oxford University Press, 2007,
xxxix þ361 pp, hb d40.
In this rich, complex and very ambitious book, Robert Stevens argues that a
‘rights model’ of tort law not only provides a better interpretive accou nt of tort
law ‘as we ¢nd it’ but also is ‘superior, at least within the system of adjudication
which exists i n the common law world’ (306). According to the rights model, a
tort is a species of wrong, a wrong is a breach of duty and a breach of duty is
the infringement of a right. In other words, Steve ns understands ‘rights’ in
Hohfeldian terms as claim rights: a tort is a breach of duty and, correlatively, the
infringement of a right. Such rights are ‘primary’, and are to be distinguished
from ‘secondary’ rights. Secondary rights are correlative to the ‘obligations
generated by the infringement of primary rights’ (2). Crudely, secondary
obligations (and their correlative rights) are remedial.
According to Stevens, primary rights are‘speci¢c claim rights’ (4). He does not
explain what he means by ‘speci¢c’; but it turns out to be very important in his
scheme. It is, apparently, the basis on which Stevens implicitly denies that breach
of a duty to take care not to injure another constitutes infringement of aprimary
right not to be injured by a failure of due care. Unlike property and contractual
rights, and the right ‘to go where I choose’ (5), for instance, the r ight not to be
negligently injured, which is correlative to the duty to take care, is not‘speci¢c’.
Indeed, although Stevens does not say so explici tly, it may be that in his scheme,
such a right would not even be ‘primary’: ‘when we refer to the car driver’s duty
of care, this is merely a form of shorthand for the potentially large number of
primary rights whichwould be infringed if he was to fail to do so’ (291).
According to Steve ns, there are only ‘some exceptional torts which do not
require the infringement of an antecedent primary right’ (349, emphasis added).
Under the rights model, tort law ‘is concerned with the secondary obligations
generated by the infringement of primary r ights’ (2). The law of torts is not a
‘free-standing subject’ (320, 325) with a normative or social agenda of its own,
but a mechanism for vindicating primar y rights, which arise independently of
tort law. The only rights to which tort law, as such, gives rise are secondary, reme-
dial rights. The law of torts is a service industry in law’s empire, not part of the
productive economy.
Stevens contrasts the r ights-based model of tort law with a ‘loss model’.‘French
law comes closest to adopting the loss . . . mode l’ (342) and it ‘dominates’ (1) the
tort of negligence as analysed in Caparo Industries plc v Dickman [1990] 2 AC 605.
According to the loss model (Stevens says) there is a presumption in favour of
liability for negligently in£icted loss, which must be rebuttedto justify ‘no recov-
ery’ (2); and the function of the duty of care in the tort of negligence is to de¢ne
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (4) 641^661
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