In torts as elsewhere in private law we use the concepts of right and

duty both to reach and to present conclusions on legal liability.

Unless we think these terms are meaningless, and hence superfluous, it

is helpful to ask what they do mean and how they should be used.  If

there are cases where our intuitions say liability is clear but which

pose problems for either our understanding or the application of these

concepts of right and duty, then I'd say that they provide an ideal

occasion to consider how these concepts work.  We may then be better

equipped when faced with cases where our intuitions are less clear or

not so widely shared.

This, I think, is the case here.  We typically say that liability in

negligence arises where and because the defendant has breached a duty of

care s/he owed to the claimant (and this causes the claimant harm or

loss).  However, I think there is a problem fitting within this analysis

cases where the claimant's harm results from conduct occurring prior to

his/her conception (possibly also where it is simply pre-birth).  I

don't think we can say duties can be owed to the "unconceived" if we are

not also to say that these (at the time) "non-people" can also hold

rights - at least so long as we are using the terms "right" and "duty"

as correlatives in the way Hohfeld used them.  Rob's argument is that

rights and duties can be correlative in this sense, even where they

don't co-exist at the same point in time - this then allows us to square

these "problem" cases with the traditional negligence analysis.  I think

this misunderstands what rights and duties are in the Hohfeldian sense;

namely not distinct elements but rather two aspects of - even two ways

of describing - a single legal relation(ship) between two individuals.

The relationship between rights and duties (or at least of the relations

each describes) is one of unity.  One doesn't follow from or give rise

to the other.  To say that A owes to B a duty (not) to do X is to say

that B has a right that A (not) do X.

Now one may ask why we should concern ourselves with the intricacies of

Hohfeld.  Certainly we can use the language of rights and duties in

other (useful) ways.  But I think its importance here is not just

Hohfeld's general point about being clear in what we're saying when we

use the term "right" and avoiding faulty reasoning.  Rather, the key

point is that a private law action is an assertion of a (Hohfeldian)

right-duty relationship - the claimant is asserting that the defendant

owes him/her a duty (not) to do X (or, to say the same thing, that s/he

has a right that the defendant (not) do X) and is asking the court to

see this is given effect.  As such, we might think that an examination

of the parties pre-claim, pre-harm right-duty relationship would be a

useful thing to focus on.  Of course, we can still analyse such claims

using "right" and "duty" in different senses, but then more work needs

to be done to show how these "non-Hohfeldian" rights and duties support

a particular claim, and hence a particular (Hohfeldian) right-duty

relationship.

Here's another possibility.  When we bring claims after suffering harm

as a result of another's carelessness, the right we are asserting is not

a right (and correlative duty) that the defendant take care to see that

we are not harmed when he was engaged in the relevant conduct (making

baby food, designing bridges), but a distinct right (and correlative

duty) that the defendant, for example, compensate us for the losses

caused by his failure to take care when doing this.  That's not to say

that when making the baby food, designing the bridge etc the defendant

didn't owe such a duty of care.  That may have been the case, but it's

now too late to demand that the defendant does indeed take care.  The

claim is distinct.  Such rights to compensation don't arise in all cases

where we are harmed by another's carelessness.  Traditionally we say

that they arise only where the claimant had a right that the defendant

take care in the first place - or in other words, only where the

defendant owed the claimant a duty of care.  However, maybe these cases

involving the "unconceived" show that there may be instances where

duties to compensate for carelessly caused harm arise even where there

was no duty to the claimant (though such a duty may have been owed to

others) to take care in the first place.

Charlie.

-----Original Message-----

From: Jones, Michael [mailto:M.A.Jones@liverpool.ac.uk]

Sent: 20 January 2009 00:51

To: Benjamin Zipursky; Jason Neyers

Cc: Obligations list

Subject: RE: ODG: Duties to the unborn

Ben's point is so self-evidently correct, for the life of me I just

cannot see why people are getting so wound up about the conceptual

problem of whether someone exists at the point of breach.  It's the

damage that matters - a legal system that denied a remedy to a child

disabled by pre-birth negligence because it couldn't cope with the

conceptual problem that has been discussed over the last week or so on

this forum would not be a shining example of 21st century (or even 20th

century) jurisprudence.  

It may be reassuring to tie up all the conceptual loose ends, but

sometimes the result is more important than the route by which one

arrives at the destination.  I'm not trying to provoke another flurry of

posts - its just that sometimes I think you can have too much theory and

lose sight of the basics ...

Michael

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Michael A. Jones

Professor of Common Law

Liverpool Law School

University of Liverpool

Liverpool

L69 3BX

Phone: (0)151 794 2821

Fax:     (0)151 794 2829

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