Well, here we part company. It is perfectly possible to breach duties which

are not owed to specific others, with an attachment sanctioned by the law.

So in the context of the failed assassination there is a wrong: a crime. But

there is no tort. Private law has nothing to say about this.

A tort is a breach of a duty to someone else. Sometimes the wrong is only

actionable upon proof of consequential loss, but the loss is always suffered

after the breach of the duty (ie after the wrong). If I get drunk and drive

the wrong way around a roundabout, narrowly missing a school bus full of

children, I have committed no civil wrong at all. Put another way, there is

no breach of a duty owed to anyone else. This is so even though I can

foresee that negligently acting in this way could injure all of the

children.

It is perfectly possible to conceive of rights that others do not behave in

certain ways, which are not dependent upon injury to oneself. The right not

to be injured just isn't like this.

R

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

From: C.E.Webb@lse.ac.uk [mailto:C.E.Webb@lse.ac.uk]

Sent: 20 January 2009 17:25

To: robert.stevens@ucl.ac.uk; obligations@uwo.ca

Subject: RE: ODG: Duties and rights

Rob wrote:

"It may also be noted that the manufacturer has not breached his duty at the

time of manufacture. A breach of duty is a wrong. There is no wrong until

someone's rights have been infringed."

I don't think this is right.  In fact I think it reveals the sort of error

we can be led into if we're not careful in how we use the language of

"rights".

Sometimes we use the language of rights to describe the interests which the

law seeks to protect or effectuate.  So I have a right/interest in my bodily

integrity, reputation, property etc.  At other times we use the language of

rights to describe the demands I may make of others in their dealings with

me.  Here I have a right that you not hit me, not defame me and so on.  In

general we might say that these interest-rights provide reasons for the

recognition of these concrete claim-rights (though such claim-rights may

also be supported in other ways).  Only these concrete claim-rights are

truly correlative to duties.

Now let's say I have a right that you take reasonable care not to physically

harm me.  This (Hohfeldian) claim-right correlates to a duty on your part to

take care not to harm me.  You breach this duty if you fail to act in the

way the duty requires - namely if you fail to take reasonable care.  It

makes no difference that no harm in fact results from your actions.  (Or

rather it makes no difference to the question of whether you have breached

your duty - it does matter to the question of what, if anything, I can then

recover from you.)  Of course, we can say in such situations that my

interest-right in my bodily integrity hasn't been infringed.  I escape your

carelessness unscathed.  But that is not the right I am asserting.  My

(claim-)right that you take care not to harm me has indeed been infringed,

your duty to take care has been breached.

This simply follows from the formulation of the right-duty relationship.

The conclusion that there is no breach unless and until harm has been

caused/an interest has been infringed can be supported only if we

reformulate that relationship.  So, rather than saying that you have a duty

to take care not to harm me, we might say instead that your duty is simply

not to harm me carelessly.  But this would involve a significant change to

the content of the right-duty.  Moreover I think it would be a change for

the worse.  If we think of duties as seeking to direct conduct - telling the

defendant how s/he is or is not to behave - then I think we have good reason

to encourage people actually to take care, not simply to see that nobody is

harmed when we are careless.

Take an extreme example.  Say I try and fail to assassinate you.  I think by

attempting to kill you I have breached a duty.  I think the law would be

defective if it didn't recognise such a duty.  I think that when I am

loading the gun, pointing it at you, preparing to pull the trigger, the law

tells me that I shouldn't be doing this, that you have a right that I not do

this.  Indeed, I think there is a good argument that I breach the very same

duty where I do shoot you.  Whether my shot is successful or unsuccessful,

the law is seeking to direct my conduct in exactly the same way - namely,

don't shoot.

Charlie.

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