Review: Rights, Reductionism and Tort Law

Reviewed Work(s): Torts and Rights by R. Stevens

Review by: John Murphy
Source: Oxford Journal of Legal Studies , Summer, 2008, Vol. 28, No. 2 (Summer, 2008),
pp. 393-407
Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/20185377

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Oxford Journal of Legal Studies, Vol. 28, No. 2 (2008), pp. 393-407
doi: 10.1093/ojls/gqn004
Published Advance Access April 23, 2008

Rights, Reductionism and Tort Law

JOHN MURPHY+

1. Introduction
No one could ever accuse tort law of being under-theorized. Corrective justice
theorists, lawyer-economists, critical legal theorists and feminists have all con
tributed to the literature, even though it is only the first two groups that have
really attempted to explain, justify or set goals for this subject as a whole.1
What neither the justice theorists nor the lawyer-economists seem seriously to
question, however, is whether tort law is a suitable candidate for such
theorization in the first place. The very fact that doctrinal tort lawyers cannot
even agree as to such fundamental things as the subject's scope,2 its proper title
(tort or torts?) and its relation to other branches of private law,3 provides a
significant basis for doubt in this respect. And the fact that neither the justice
theorists nor the lawyer-economists can claim anything like universal accep
tance of their respective accounts provides still further cause for scepticism
about the manageability of the task, especially when one bears in mind the
historical fact that tort law has been largely cobbled together over several
centuries by a great many different (and differently minded) judges in a some
times ad hoc fashion.4 The idea that they were all somehow motivated by a
desire to apply, modify or develop the law in a way that was consistent with
some kind of overarching norm or principle seems highly implausible.

* A review of R. Stevens, Torts and Rights (Oxford University Press, Oxford, 2007).
+ Law School, University of Manchester. Email: john.murphyl07@ntlworld.com. I am grateful to Julie
Dickson, Francesco Giglio, William Lucy, Stephen Waddams and Christian Witting for their helpful comments
on a draft of this article. The usual caveat applies.
1 For an excellent general survey of tort law theory, see P. Cane, 'The Anatomy of Private Law Theory: A 25th
Anniversary Essay' (2005) 25 OJLS 203-217.
2 For example, some authors would consider the misuse of private information to be a new (or at least)
emerging tort while others would deny this; and some would consider there now to be only two economic torts
(inducing breach of contract and the unlawful means tort) while others would contend that simple conspiracy and
two-party intimidation still enjoy independent existence.
3 For an excellent study of these relations, see S. Waddams, Dimensions of Private Law: Categories and Concepts
in Anglo-American Legal Reasoning (Cambridge University Press, Cambridge, 2003).
4 Two very famous examples of the ad hoc creation of tort rules are the rule in Wilkinson v Downton [1897]
2 QB 57 and the rule in Rylands v Fletcher (1868) 1 LR 3 HL 330.
? The Author 2008. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org

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394 Oxford Journal of Legal Studies VOL. 28

Yet notwithstanding these obstacles, Robert Stevens has produced, in Torts

and Rights, an attempted reductionist account of the way in which the structure
of tort law can best be understood. (By reductionist account, I mean one that
seeks to identify a single norm, goal, principle or feature that explains or
underpins the disparate causes of action that comprise tort law and which often
appear to have little in common with one another.5) For Stevens, tort law has
structural unity. He sees it is as a body of law 'concerned with the secondary
obligations generated by the infringement of primary rights'.6 This article is
a response to that book. It considers the merits, plausibility and utility of
attempting to understand tort law in the way that Stevens suggests. But first,
a number of prefatory remarks are in order.
In adopting his conception of tort law, Stevens is chiefly concerned to
distance himself from what he sees as the dominant, rival conception which
views tort law as a set of rules that operates where D has been at fault in
causing loss to C. This latter approach?which Stevens dubs the 'loss-based
model'?is viewed as inadequate for a number of reasons, prime among which
are that it possesses inadequate normative and explanatory force. He suggests,
for example, that the loss-based model is unable to supply a credible expla
nation of any tort that is actionable per se because, '[i]f the law of torts is
concerned with loss, there is no room for an award of damages without proof of
loss'.7 He also considers disclaimers of responsibility in what are sometimes
called 'extended Hedley-Byrn?* cases to be 'a mystery' according to the loss
based model which neglects to focus on the right created by the assumption of
responsibility.8 According to Stevens, the general law of tort pays no regard to
an attempt to exclude liability by the simple expedient of disclaiming liability in
advance: 'if a driver places a large neon sign on the roof of his car stating that
he accepts no responsibility towards those he carelessly crashes into, this will
not avail him against his victims'.9 What he urges, instead, is that we should
view the disclaimer as merely making clear the absence of any assumption of

5 For example, some torts are actionable per se, while others require proof of loss; some torts require proof of
intention, while others require mere negligence; some protect only a single interest (e.g. personal property), while
others are wide-ranging in the interests they protect. Recognizing that tort can be seen as a loose affiliation of
various causes of action created by the common law courts over a long period of time, Hepple and Matthews
preface their case-book on torts with the following quotation from the French moralist and essayist Montaigne:
'I have gathered a posie of other men's flowers and nothing but the thread that binds them is my own': (for the
current edition see Hepple, Howarth and Matthews, Tort: Cases and Materials (Oxford University Press, Oxford,
2000), 1.
6 R. Stevens, Torts and Rights (Oxford University Press, Oxford, 2007), 2 (hereafter TAR). Elsewhere, Stevens
changes his emphasis; so instead of the commission of a wrong being viewed as an event that generates a
secondary obligation, it is instead seen as triggering a secondary right: TAR, 59. (He does likewise at pp 60,
287 and 291.) The change in emphasis will, of course, count for nothing if one accepts uncritically the
Hohfeldian scheme of correlativity; but not all do: see, for example, N. MacCormick, 'Children's Rights: A Test
Case for Theories of Right' (1976) 32 Archiv f?r Rechts und Sozialphilosophie 305-17.
7 TAR, 84.
8 Ibid, 34.
9 Ibid. Compare this example, however, with the potential effect of disclaimers in the context of the statutory
torts created by the 1957 and 1984 Occupiers' Liability Acts.

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summer 2008 Rights, Reductionism and Tort Law 395
responsibility (and therefore the absence of any right). On this analysis, every
thing becomes clear.
These are but two examples of where a rights-based analysis seems preferable
to the loss-based model. But they are by no means the only ones. Indeed,
throughout the book, Stevens convincingly highlights one instance after another
where the loss-based model either seems to make little sense, or else gives rise
to unnecessary complexity10 or manifest incoherence11 in the law. It is against
the backdrop of these inadequacies of the loss-based model that Stevens views
his central project as being an endeavour to show the 'importance and truth
of conceiving of torts as the infringement of primary rights'.12 But these are
two very ambitious goals.
As regards the former?the importance of Stevens' study?there can be
no denying that his rights-based approach contains a significant number of
valuable insights.13 For example, it provides a number of interesting criticisms
concerning the deficiencies inherent in the economic analysis of tort law;14 a
range of novel observations about the arbitrariness of the Wagon Mound test
for remoteness of damage;15 a set of perceptive remarks about why it is inapt
to attempt to apply the Law Reform (Contributory Negligence) Act 1945 to
certain contractual duties that seemingly correspond to tortious obligations;16
a number of astute observations about the inadequacies and inconsistencies
of the present law governing occupiers' liability;17 and a superb defence of
the largely discredited 'master's tort' approach to understanding vicarious
liability.18
On the other hand, the proclaimed truth of Stevens' account is far more
difficult to establish. To begin with, there are two very obvious terminological
problems with it: the first concerns his choice of Hohfeldian correlatives, while
the second relates to his preferred notion of 'substitutive damages'. More
seriously, however, his study appears susceptible to the familiar problem that
arises in connection with most if not all reductionist theories of tort law:
namely, how to convince the reader that the account he proffers possesses

10 For example, in relation to the negligence liability of public authorities. For Stevens, the matter is better
dealt with on the basis of asking (a) whether C's right has been infringed and (b) whether the public authority in
question had a (Hohfeldian) privilege to do as it did: TAR, ch 10. This, for Stevens, avoids both unnecessary
engagement with the dubious justiciability criteria that the courts have developed in this context, certain
obfuscatory and misplaced notions (such as 'policy', 'operation' and 'ultra vires'), and the invocation of
ungrounded policy criteria that are reducible to little more than ill-informed judicial hunches: TAR, 228-36.
11 For example, take the muddled case law on 'types of loss' in relation to the Wagon Mound remoteness test:
see Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] 1 AC 388 and
Overseas Tankship (UK) Ltd v. Miller Steamship Co Ltd (The Wagon Mound No 2) [1967] 1 AC 617.
12 TAR, 3.
13 As to its practical importance, see section 3 below.
14 TAR, 94-97.
15 Ibid, 156.
16 Ibid, 204-5.
17 Ibid, 208-17.
18 Ibid, 259-67.

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 396 Oxford Journal of Legal Studies VOL. 28

sufficient explanatory force to be a credible description of the whole subject

when it clearly fails to accommodate some well-established tort law doctrines.
Of course, in making this criticism it is important to bear in mind what it is
reasonable to expect of this book. In particular it is vital to appreciate that,
while we might expect a standard tort law textbook to describe in detail the
contents and contours of all the familiar tort doctrines, Stevens has set out to
produce a very different kind of book. His aim is emphatically not to supply a
textbook-like, 'basic account' of the law; but rather to provide one that is
'foundational, trying to make clear the structure of the law'.19 As such, it would
be wrong to judge the merits, credibility and utility of this study on the basis of
its ability to explain each and every one of tort law's doctrines. But at the same
time it is fair to say that if the number and significance of the familiar features
that it overlooks or fails adequately to explain begin to mount up, then the
credibility of the general thesis does start to look questionable. Furthermore,
whether or not he regards it as such, Stevens' task cannot simply be confined to
showing that his rights-based account is more compelling than the loss-based
model he so clearly opposes. He must also, I would suggest, anticipate that his
rather novel, reductionist understanding of tort law will inevitably be compared
with other theoretical accounts.20 And simply identifying various flaws with
these rival accounts, or describing them as 'wrong-headed',21 is clearly not
enough. To show merely that theory A is bad or flawed is not simultaneously to
prove that theory B is better or beyond objections of its own. Nor does it prove
that theory B is superior to other prominent theories C or D.
In the next section, then, I examine the extent to which it is, as Stevens
claims, true that tort law is fundamentally concerned with the secondary rights
and obligations that are generated by the infringement of primary rights.
In doing so, I shall consider not just the two terminological problems that
Stevens' account faces, but also the more substantial questions of whether Torts
and Rights provides a compelling account of the bulk of the law as we find it
(or generally take it to be). Before proceeding to these matters, however,
one final introductory point ought to be made. It relates to the way in which
Stevens' account differs from other reductionist approaches. As he explains:

The rights-based theory of the law of torts indicates that the correct way to classify
the law of torts is according to the primary right which is infringed. The law of torts
is parasitic. This indicates that there is little underlying unity to the subject.
The primary rights which are capable of being violated so as to generate secondary
rights, are generated in a variety of ways for different reasons.22

19 Ibid, vii.
20 The two most obvious candidates are, loosely, those subscribed to by lawyer-economists and those
subscribed to by corrective justice theorists.
21 TAR, 326. While Stevens considers that 'attempts to construct unitary theories to explain the law of torts'
meet this description, he does go on to explain that all he really believes to be beyond theorization in this way is
the diverse range of rights that we have and which are protected by tort law.
22 Ibid, 299.

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 summer 2008 Rights, Reductionism and Tort Law 397
Thus, although Stevens offers us a reductionist theory of sorts?one that seeks
to evince some kind of structural unity within the law of torts?it is nonetheless
one that denies the existence of any universal norms. It is most definitely not an
attempt to unearth some kind of Grundnorm that explains all the rights that we
have and all the rights which tort law protects.

2. Torts and the Centrality of Rights

A. Two Terminological Problems

Right from the outset, Stevens invites us consider the rights that form the
backbone to his understanding of tort law as Hohfeldian claim-rights.23 For
him, the primary rights that tort law responds to fall into this category, but
so, too, do the 'secondary rights' that arise when these primary rights have
been tortiously infringed. This second contention, however, is untenable. This
is because the relationship brought about by the tortious infringement of a
primary right is not what Hohfeld would have considered to be a correlative
right/duty relationship. He would have called it a power/liability relation. If you
punch me on the nose, I do not have a claim-right against you for damages,
and you have no duty to pay damages. Rather, I have a mere Hohfeldian power
to sue you. And it is just the same if you steal my watch, trespass on my land or
commit any other tort. Until such time as a court rules in my favour, you are
subject to no more than a Hohfeldian 'liability'. For Hohfeld, the power/
liability correlation referred to contingent rights and duties.24 If D commits
a tort against C, C has, at that time, no more than the power to sue D.25 He
need not sue D; and until he successfully does sue D, D is, strictly speaking,
under no duty whatever to make amends to C.26 So, despite Stevens' keenness
to invoke the language of Hohfeldian rights and duties, he is regularly unfaith
ful to it. The result is that a substantial part?perhaps even the majority?of his
book is actually about Hohfeldian powers and liabilities.
Stevens' second terminological problem centres upon his insistence that
damages for the infringement of primary rights should be seen as substitutive
for the right infringed. As he puts it, 'the secondary right to damages is

23 Ibid, 4.
24 See W.N. Hohfeld, 'Fundamental Legal Conceptions as Applied in Judicial Reasoning' (1913-1914) 23 Yale
LJ 16-59.
25 As Hohfeld explained: '[t]he nearest synonym for [a power] in any ordinary case seems to be
"ability"... [and] [t]he term "right", so frequently and loosely used in the present connection, is an unfortunate
term for the purpose': Hohfeld (n 24) 45.
26 This very point has been noted by others who have considered the point: see, e.g. P. Jaffey, 'Hohfeld's
Power-Liability/Right-Duty Distinction in the Law of Restitution' (2004) XVII Can JL & Juris 295-313,
297-299; B.C. Zipursky, 'Philosophy of Private Law' in J. Coleman and S. Shapiro (eds), The Oxford Handbook
of Jurisprudence and Philosophy of Law (Oxford University Press, Oxford 2002) 633 and 'Civil Recourse,
Not Corrective Justice' (2003) 91 Georgetown LJ 695-756, 720.

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398 Oxford Journal of Legal Studies VOL. 28

awarded as a "next best" substitute for the primary right'. His purpose in
making this point is to demonstrate that such damages 'are not compensatory
for loss at all'.28 Thus conceptualized, damages in respect of torts actionable
per se become intelligible in a way that they are not according to the loss-based
model of tort law, for '[d]amages are awarded even if there is no loss to the
claimant'. But in what sense are the damages in such cases truly a substitute?
The normal idea of substitution involves the notion of X replacing Y (where
Y has now been lost). So, although Stevens would not insist that there must be
some form of tangible (or otherwise measurable) loss, it is hard to escape the
idea of loss so long as one insists on the language of substitution; that is, of one
thing taking the place of another. Perhaps a preferable term, and certainly one
proposed by Arthur Ripstein (who also subscribes to a rights-based conception
of tort law29), would seem to be that of reparative damages. These, according
to Ripstein, compensate neither the loss of the right nor any consequential loss.
Instead, they merely 'reinstate entitlements because wrongs do not change
them'; so that, '[i]f I wrongfully injure you, your right is not changed, and the
payment of damages restores to you the means you were entitled to all along'.30
And, likewise, 'the person who steals or converts the property of another does
not acquire good title in the object because the original owner retains it'.31 Our
primary rights may be damaged, but they are never actually lost or exchanged
in the way that the language of substitution suggests. If X trespasses on my
land and is required to pay damages, my rights as a landowner are not lost
vis-?-vis Y or Z, or even as against X himself on some future occasion.
But these are relatively minor matters. Stevens' election to use the language
of Hohfeldian rights and duties to describe what are strictly Hohfeldian powers
and liabilities, and his description of damages for the infringement of a right as
substitutive rather than restorative or reparative are really only terminological
flaws. The thrust of his general argument seems plain enough.32 The real test
of his thesis lies in its ability to persuade us not just that a rights-based account
is preferable to a loss-based account, but that it is a genuinely compelling
explanation of the structure of tort law in its own right.

B. Rights at the Centre of Tort Law?

It has been ably shown that corrective justice theorists and economic analysts of
tort law have more in common than they perhaps think, such as their shared

27 TAR, 60.
28 Ibid, 62.
29 See, e.g. A. Ripstein, 'Tort in a Liberal State' (2007) 1 J Tort L 1-41, 12-19.
30 Ibid, 13.
31 A. Ripstein, 'As if it Never Happened' (2007) 48 Will & Mar LR 1957-97.
32 We often speak of a 'right of action'. And Stevens, I think, means no more than this when he refers to the
secondary rights generated by the infringement of a primary right. Equally, I am unsure that he really considers
the right to have been lost when he speaks of substitutive damages: to subscribe to this understanding would
render it almost impossible to disentangle his rights-based model from the loss-based model he seeks to discredit.

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 summer 2008 Rights, Reductionism and Tort Law 399
belief that any theoretical explanation of tort law must, first, reflect its con
stituent doctrines and, in particular, the way in which they are shaped and
deployed by those who work with them.33 So, for example, in attempting to
ground 'the hypothesis that liability for negligence is designed to bring about an
efficient level of accidents and safety', Richard Posner 'read every published
accident opinion of an American appellate court' in the hope that this would
provide 'a representative view of the actual functioning of the negligence
system'.34 Similarly, the justice theorist Ernest Weinrib has suggested that, '[a]n
enquiry into the nature of tort law is not an exploration of uncharted territory,
but a visit to the familiar landmarks of our legal world'; and as such, '[t]he
point of departure for theorizing about tort law... is experience' since c[w]e can
understand only that which is familiar to us'.35
Stevens, too, is wedded to this starting position. He asserts at a very early
stage that 'the truth and significance of theoretical claims can only be made
good by examining a great deal of the substance of the law';36 and it is certainly
a notable feature of his book that the footnotes are overwhelmingly dominated
by references to case-law in general, and leading dicta in particular. As such,
there can be no denying that his account comprises a genuine endeavour to
reflect what Stevens repeatedly refers to as 'the law as we find it'. Yet whether in
truth it provides such a reflection of tort law as a whole is certainly contestable.
As already observed, showing that the rights-based model provides a more
convincing explanation of certain aspects of tort law than the loss-based model
is only part of his task. Likewise, identifying flaws in others' accounts?such as
Weinrib's famous inability to accommodate within his theory torts of strict
liability, or the lawyer-economists' inability to show that tort law is genuinely
concerned with the single instrumentalist goal of wealth maximisation37?is not
enough. If he is to convince us, then his rights-based account must be intel
lectually appealing in its own terms. What follows in the remainder of this
section, then, is an attempt to identify those aspects of tort law that Stevens'
account struggles or fails to accommodate: it is the single best way to evaluate
the extent to which his account really does reflect the 'law as we find it'.

(i) The rule in Rylands v Fletcher

Stevens' entire thesis about the structure of tort law is premised upon a
fundamental conception of the commission of a tort as '[a] breach of a duty
owed to someone else' where that 'breach of a duty... [is] an infringement of

33 See W. Lucy, 'Method and Fit: Two Problems for Contemporary Philosophies of Tort Law' (2007) 52
McGill LJ (forthcoming).
34 R.A. Posner, 'A Theory of Negligence' (1972) 1 JLS 29-96, 34-35.
35 E. Weinrib, 'Understanding Tort Law' (1989) 23 Val UL Rev 485-526, 490. See also J. Coleman, Risks and
Wrongs (Cambridge University Press, Cambridge, 1992) 8: 'the theorist begins with what she takes to be the set
of norms that would gain our reflective acceptance'.
36 TAR, vii.
37 See, e.g. R. Wright, 'Hand, Posner, and the Myth of the "Hand Formula" ' (2003) 4 Theoretical Inquiries L
145-274.

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400 Oxford Journal of Legal Studies VOL. 28

a right they have against the tortfeasor'.38 As such, he insists, '[b]efore a

defendant can be characterized as a tortfeasor, the anterior question of whether
the claimant had a right against him must be answered'.39 So much, of course,
is to be expected in a rights-based account. But how can this understanding be
squared with the rule in Rylands v Fletcher} In cases in which that rule may be
invoked, there is, prior to the escape, nothing that D is legally obliged to do.
There is, in other words, no anterior duty on the part of D that correlates to
a claim-right on the part of C. Recognizing this absence of any anterior
claim-right, Jaffey has observed that '[a] claim under the rule in Rylands v
Fletcher... arises from a primary liability relation that allocates to D the risk of
loss to C without imposing on him a duty to prevent it'.40 Essentially the same
point has been made by a number of others, and was in fact expressed roughly
contemporaneously with the decision in Rylands v Fletcher by Oliver Wendell
Holmes who wrote that ' [when] modern courts hold a man liable for the escape
of water from a reservoir which he has built... they do not proceed upon the
ground that there is an element of culpability [i.e., breach of a duty]... but on
the principle that it is politic to make [reservoir builders]... take the risk on
their own shoulders'.41 This is surely correct. The rule in that famous case
merely instantiates a free-standing liability and it emerges quite independently
of any correlative right.
Now, one response to this criticism could be to deny that the rule in Rylands
v Fletcher actually forms part of the law of torts.42 But instead of adopting this
Procrustian approach43 to making the law as we find it fit the theory, Stevens
contents himself by making two arguably inconsistent claims. The first is that
the rule in Rylands v Fletcher is 'not a separate tort at all' but rather a 'species
of private nuisance'.44 The second is that it is simply an anomaly.45 But both
these claims are without firm foundations;46 and the second, in particular,
is difficult to square with the decision of the House of Lords in Transco
pic v Stockport MBC to the effect that the rule is by no means obsolete or
anomalous.47 As things stand then, Stevens' rights-based account is unable to
explain one of the most prominent threads within the tapestry of tort law.

38 TAR, 2.
39 Ibid.
40 P. Jaffey, 'Hohfeld and Liabilities in Private Law' (forthcoming). See also P. Jaffey, 'Duties and Liabilities in
Private Law' (2006) 12 L Theory 137-56.
41 O.W. Holmes, 'The Theory of Torts' (1872-73) 1 Am L Rev 652-63, 653. See also, C.K. Allen, Legal Duties
and Other Essays in Jurisprudence (Clarendon Press, Oxford 1931), 194.
42 For this approach, see N.J. McBride and R. Bagshaw, Tort Law (2nd edn, Longman, London, 2005), 31-2.
43 I have borrowed this graphic idea from Lucy (n 33). For a more charitable account of what theorists do, see
Cane (n 1) 207.
44 TAR, 113.
45 Ibid, 299.
46 See, D. Nolan, 'The Distinctiveness o? Rylands v Fletcher' (2005) 121 LQR 421 and J. Murphy, 'The Merits
of Rylands v Fletcher* (2003) 23 OJLS 643-69.
47 [2003] UKHL 61, [56] and [99] (Lords Hobhouse and Walker). For subsequent confirmation of the
rule's continued vitality, see Arscott v Coal Authority [2004] EWCA Civ 892, [29] (Laws LJ) and LMS
International Ltd v Styrene Packaging & Insulation Ltd [2005] EWHC 2065 (TCC).

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summer 2008 Rights, Reductionism and Tort Law 401
(ii) Misfeasance in a public office
In relation to misfeasance in a public office, which is never actionable per se,
Stevens is again faced with the problem of being able to identify any credible
antecedent right the infringement of which explains the existence of this rather
general tort. In Ashby v White,48 it was the right to vote that was infringed;
while in the recent case of Watkins v Secretary of State for the Home
Department49 it was the prisoner's right not to have his incoming confidential
letters opened by third parties that gave rise to the claim. These two rights have
no obvious connection with one another and Stevens concedes as much saying
that 'the difficulty with the tort of misfeasance in a public office is that it does
not relate to any particular right'.50 Much later, and in full recognition of the
difficulty that this tort presents for the overall explanatory power of his thesis,
Stevens claims simply that this tort is can exception to the rule that the
deliberate infliction of a loss, absent the violation of a right, is not actionable'.51
But there is no explanation of what exactly grounds the exception. And with
out any such justification, this tort?albeit one that is seldom invoked?tends
to suggest an instance in which the loss-based understanding of tort has the
upper hand.

(iii) Intentional infliction of economic harm by unlawful means

Another tort in respect of which it is impossible to identify any antecedent
right is the economic tort of intentionally causing loss by unlawful means which
was thoroughly reviewed and repackaged in the case of OBG Ltd v Allan.52
According to the majority in that case, the tort is typically committed against
C by D via some (would-be) civil wrong committed against a third party, X.
As such, the tort's primary point of focus is the infringement of X's, not C's,
antecedent right. Stevens recognizes this, yet sees the tort as one of the
recognized 'exceptions to the privity doctrine in the law of torts'.53 However,
unlike certain other exceptions that he identifies?such as those relating to
congenital disabilities, fatal accidents and latent damage?this exception to the
privity rule cannot be explained away by simple reference to the fact that it was
created by Parliament. The tort is entirely a creation of the courts and, as such,
cannot be accommodated within his rights-based conception of the common
law of torts.54 In an attempt to tackle this problem, Stevens contends that this
tort can still be justified?even though it forms an exception to the privity

48 (1703) Ld Raym 938.

49 [2006] UKHL 17.
50 TAR, 90.
51 Ibid, 242.
52 [2007] UKHL 21.
53 TAR, 174.
54 For a thoroughgoing analysis of the absence of any antecedent right on C's part, see J. Neyers, 'Rights-based
Justifications for Unlawful Interference with Economic Relations: Are there Any?' (2008) 28 LS (forthcoming).

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402 Oxford Journal of Legal Studies VOL. 28

doctrine?on the basis that it 'prevents D from using others as a means to his
own ends'.55
Now, while this may ostensibly appeal as a justification for the exception, it is
nonetheless susceptible to two criticisms. The first arises from the fact that the
justification simply begs the question of why the intermediary should not be
the person suing, rather than adequately answering the question of why the
claimant can sue. After all, using strikingly similar language, his explanation of
cases involving intimidation runs as follows: 'D is using X, or perhaps more
accurately the right of X, for his own ends in order to cause loss to C'.56 So, if
this explains why D intimidating X is a wrong, why does the cause of action lie
with C rather than with X? Bearing in mind that one of the proclaimed
advantages of Stevens' rights-based model over the loss-based model is that it
makes explicable torts actionable per se, it seems almost bizarre that he should
take such a flagrant abuse of X's right to be the justification of a cause of action
on the part of C, given that C is 'merely' the one that has suffered loss but had
no right infringed.57 It is even more bizarre when one factors in his contention
that there is no necessary reason why the tort should be confined to cases in
which economic harm has been suffered and that, in principle, it could be
applied to cases in which the victim suffers distress:58 for this is precisely what
one would expect the intimidated third party, X, to suffer.
The second criticism concerning Stevens' putative justification for the
unlawful means tort arises from the fact that it is reducible to one of Lord
Goff's policy justifications for the decision in White v Jones: namely that, unless
the claimants are permitted to sue in tort on policy grounds, 'the only persons
who might have a valid claim... have suffered no loss, and the only person
who has suffered a loss.. .has no claim'.59 The problem that Stevens faces here
is that, although his justification for the privity exception arises from precisely
similar concerns to those expressed by Lord Goff, he is elsewhere in the book
vehemently opposed to precisely this use of policy60?that is, 'the impulse to
do practical justice'.61 Indeed, so opposed is he to the invocation of policy
reasoning in tort that he devotes an entire chapter to the matter.62
Combined, these two criticisms place Stevens in a very awkward position.
Either his putative justification should be taken to illustrate the correctness of
treating the intermediary as the rightful person in whom the cause of action
should vest (in which case, as Neyers, has observed, there would be no violence
done to the privity principle63), or it supports an exception to the privity
55 TAR, 188.
56 Ibid, 190.
57 For similar, but rather briefer, criticism, see Neyers (n 54).
58 TAR, 189.
59 [1995] 2 AC 207, 260.
60 He criticizes this specific snippet from his Lordship's dictum: TAR, 179.
61 Ibid.
62 Ibid, ch 14.
63 Neyers (n 54).

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summer 2008 Rights, Reductionism and Tort Law 403
principle on exactly the kinds of policy grounds that Stevens is elsewhere
adamant that we should reject. In the end, his treatment of the unlawful means
tort is somewhat reminiscent of the kind of problem that sometimes occurs
with a newly laid carpet. At first sight it looks appealing to the eye, but
on closer inspection one notices an irritating little bump in the carpet. One tries
to flatten out the bump only for it to re-appear somewhere else in a slightly
different form. Thus is it so with Stevens' treatment of the unlawful means tort.
It fails to fit squarely within his rights-based thesis, so he attempts to iron out
the problem by suggesting a justification for the exceptional nature of this tort.
The justification he invokes, however, merely creates problems elsewhere:
it indicates a good reason why X (not Y) should be able to sue, and it amounts
to little more than 'the impulse to do practical justice' that he elsewhere
condemns. Furthermore, whichever way he proceeds, he cannot escape the fact
that this tort seems much easier to explain according to the loss-based model
than the rights-based model.

(iv) Assumptions of responsibility

Negligence cases said to be based on assumptions of responsibility are
controversial to say the least.64 But Stevens has no particular problem with
them. Rather, he sees them as falling comfortably within his account of tort law
because the 'objective manifestation' of a willingness to undertake responsibility
on D's part is seen as a right creating trigger.65 This, however, is a contestable
position to adopt.
His attempt to substantiate it rests upon analogies gleaned from other
areas of private law (i.e. equity and bailment66) where a simple assumption of
responsibility can indeed be shown to generate primary rights. These examples
are invoked by Stevens in order to illustrate not only that there is no magic in
the idea that a right can be created by a voluntarily assumption of responsi
bility, but also that there is no necessary normative significance attached
to detrimental reliance.67 Yet whilst it is true that estoppels, express trusts and
bailments can create rights by virtue of the simple manifestation of responsi
bility, it is also true that contract law firmly rejects the idea that gratuitous
undertakings create rights. So if?and this is a big if68?looking to other areas
of private law is an acceptable guide as to how tort law should proceed, what is
required is an accompanying account of just why the laws of equity and

64 See, e.g. K. Barker, 'Unreliable Assumptions in the Modern Law of Negligence' (1993) 109 LQR 461-84
and S. Whittaker, 'The Application of the Broad Principle in Hedley Byrne as between Parties to a Contract'
(1997) 17 LS 169-91.
65 TAR, 22-23.
66 Ibid, 10-11.
67 Ibid, 14.
68 For similar doubts about analogizing from one area of private law to another, see K. Barker, 'Wielding
Occam's Razor: Pruning Strategies for Economic Loss' (2006) 26 OJLS 289-302, 300 (and the citation therein,
at fh 73, of others who share these doubts).

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 404 Oxford Journal of Legal Studies VOL. 28

bailment provide better guidance than the law of contract. In order to do this,
what is needed is an examination of the underlying principles at play.
The simple assertion that '[a] contract minus consideration is a gratuitous
promise'69 offers no more than a contrast to the equity and bailment examples.
And, unlike Raz, for example, who argues that the Millian harm principle can
be invoked to explain why gratuitous promises that have not been relied upon
are not binding in contract,70 Stevens stops short of explaining why contract
law adopts the stance that it does, and why equity and bailment proceed
differently. So we are left wondering why it is that tort law should follow equity
and bailment rather than contract in relation to gratuitous assumptions of
responsibility? Furthermore, with no evidence of any clear judicial assertions
(in tort cases) to the effect that such assumptions generate primary rights in the
absence of any detrimental reliance, we may seriously question whether Stevens'
account really does explain or reflect 'the law as we find it'.71

(v) Defamation
As already seen, one of Stevens' central claims is that his rights-based model
provides a better explanation of torts actionable per se than the rival loss-based
model. It is for this reason that he wishes to place rights at the very core of any
attempt to understand tort law. But his explanation of why some torts are
actionable per se while others are not fares poorly when tested in the context of
the law of defamation. Plausibly enough Stevens argues that:
The division between wrongs actionable per se and those only actionable upon proof
of consequential loss should reflect a choice between those rights which are, and are
not, as a question of social fact sufficiently important to be deserving of protection
irrespective of the consequences of violation.72

In essence, this claim rests upon the idea that there is a more or less discernible
hierarchy of protected rights within tort law. This, in itself, is fairly
unobjectionable. But whether it truly explains why some torts are, and others
are not, actionable per se seems doubtful.
In the context of defamation law, whether one sues for libel or slander, the
right in issue is always the same: the right to reputation. Stevens acknowledges
this73 and even goes on to point out that this right is indivisible.74 On this
basis, and bearing in mind the contention that it is the importance of the right

69 TAR, 33.
70 See J. Raz, 'Promises in Morality and Law' (1982) 95 Harvard L Rev 916-38, 937.
71 Barker has identified two types of assumed responsibility: the 'strong version' (characterized classically by
Hedley Byrne v Heller [1964] AC 465) and the 'weaker version' (characterized by cases like Spring v Guardian
Assurance [1995] 2 AC 296). But in both versions there has been a constant judicial insistence upon showing
reliance: see Barker (n 68) 289-90.
72 TAR, 89.
73 Ibid, 8.
74 Ibid, 199.

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summer 2008 Rights, Reductionism and Tort Law 405
that determines whether any given tort is actionable per se, one would expect all
cases of defamation to be either actionable per se or not so actionable
(depending on the significance attached the right to reputation). Recognizing
the problem for his account, Stevens suggests that c[t]he treatment of slander
appears anomalous'.75 He even goes on to provide an historically rooted
explanation for the differential treatment of libel and slander: namely, the old
idea that a printed form of defamation is somehow more serious than mere
transient words. But even though Stevens is perfectly correct to argue that this
distinction is untenable in the modern era, it is by no means clear that his
general view of slander (i.e. that it is anomalous) commands universal appeal.
In the first place, the exceptional instances in which slander is actionable per se
were clearly to the fore when the Defamation Act 1952 was drafted. But
instead of making all slander actionable per se, the legislature took only a very
conservative step. It merely extended slightly the scope of one exceptional
category of slander which has always been actionable per se.76 Nothing further
was done to remove the perceived anomaly.
Secondly, even though the Faulks Committee actually recommended the
abolition of the distinction between libel and slander in the 1970s, nothing was
done. And while the enactment of the Defamation Act 1996 provided a third
opportunity to introduce consistency, the law on this matter was once again left
intact. It seems doubtful, then, whether the continuing distinction between the
two branches of defamation law can be wholly explained away on the basis of
an historical anomaly as Stevens seems to think. On the three occasions when
the law could have been changed, it was left intact. Accordingly, what the
rights-based account encounters here is another well-established area of tort
law that it fails to accommodate.

3. Practical Utility of the Rights-Based Model

As already noted, Stevens' reductionist account is of a different kind than other
leading tort law theories. It does, however, share with them the claim that it is
important for us to conceive of tort law in the suggested way.77 It is not spelt
out whether this importance is perceived to exist at the level of practice or
theory, but given the claims about the truth of his account, we may reasonably
suppose that Stevens perceives the importance of the rights-based model to
inhere in its practical utility.78 So does his account actually provide such
practical utility? Well, sometimes. There is no doubt that his approach is at its
most useful when it charts superbly a meaningful and sensible course through

75 Ibid, 88.
76 See the Defamation Act 1952, s 2.
77 TAR, 3.
78 Cf. Weinrib (n 35) 491: 'The practical relevance of theory is to point to what the positive law of torts
ought to be'.

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406 Oxford Journal of Legal Studies VOL. 28

the murky waters of public authority negligence liability. But if one were to take
the related question of negligence liability for economic loss?equally riddled
with policy considerations, hybrid tests and sometimes irreconcilable case law?
it fares markedly less well.
For Stevens, the c[t]he common law's starting position is that the infliction of
economic loss does not per se infringe any right of the claimant, and is not
therefore prima facie recoverable'.79 He supports this claim by reference to
three important 19th Century cases before asserting that '[o]n a rights-based
model it is not the ocean of no-liability which requires mapping, but the
isolated islands of rights'.80 In other words, rather than enumerate the many
spurious policy reasons making economic loss generally irrecoverable, he would
rather that we pinpoint the isolated incidents in which there is occasionally
a right that would support the recovery of a purely economic loss. What is
puzzling, though, is why, in the absence of any attempt to supply us with a
theoretical account of where and why rights worthy of tort's protection arise, he
considers this second form of legal cartography to be any easier. In the absence
of any such theory, why wouldn't we be more or less guessing whether the
courts would recognise an exceptional right to the protection of a purely
economic interest?
Another factor that seems to dilute the practical utility of Stevens' rights
based approach is the absence of any clearly enumerated hierarchy of rights.
Given that he recognizes cthe possibility that rights can conflict... [so that]
[o]ne person's right may override that of another, conferring a privilege which
would not otherwise exist',81 it is of only limited value to enunciate, as Stevens
does, a range of established situations in which a complete or, more usually,
qualified privilege will arise.82 What is required in order to give the rights-based
approach optimal utility is a more concrete means of knowing when right X will
trump right Y for any two given rights. The surest way of ensuring this would
have been to (attempt to) supply a clear explication of the hierarchy of rights
which tort law protects. But there is no such explication in this book; just the
occasional tentative suggestion as to where one right or another may sit within
this hierarchy.83 Indeed, it is with an air of resignation that Stevens suggests
that 'there is no mathematical formula or single yardstick for the ordering of
rights, nor can this ordering be deduced from a still deeper, but as yet unartic
ulated set of policies'.84 But in the absence of any such yardstick?even a rough

79 TAR, 21.
80 Ibid.
81 Ibid, 337.
82 Ibid, 102-7.
83 Admittedly, at p. 13 and p. 21 of TAR there is a declaration that the highest positions are occupied by our
rights to bodily integrity and property; and there is also, at p. 175, the claim that the right to life is 'the one right
one would have thought the law would protect above all others'. But there are far more rights than these which
are protected by tort law.
84 TAR, 337.

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summer 2008 Rights, Reductionism and Tort Law 407
and ready one?it is by no means self-evident that we are better off with a
rights-based understanding of the law of torts. It becomes just as unpredictable
(because of the absence of any metric against which to measure the significance
of conflicting rights) as the dominant loss-based approach (which permits the
courts to take into account a variety of policy considerations).

4. Conclusion
Perhaps rather too often for comfort, Stevens attempts to explain away certain
well-established tort doctrines on the basis that they are anomalous. A number
of prominent examples were given, but they comprised by no means an
exhaustive list.85 Thus, even though it is almost inevitable that some anomalies
will exist in a body of law that has been put together in the rather haphazard
way that tort law has, there must still come a point when the number and
significance of the anomalies identified by any one theory begin to raise
questions about the explanatory power and defensibility of that theory as a
whole. Of course, there is nothing wrong in attempting to advance a compelling
reductionist account of tort law. Indeed, there is generally a great deal to be
said for such an endeavour. And Stevens is certainly to be congratulated on his
worthy attempt. His book, as was noted at the outset, is packed with a host of
valuable insights and his theory is not obviously inferior to those propounded
by others. On the other hand, sight must not be lost of the fact that the virtues
of such reductionist theories seem never to be unaccompanied by a number of
salient problems that sooner or later call into question the overall value of the
theory as a whole. Accordingly, it seems wise to approach the rights-based
approach in this book (as well as other such projects) with the aphoristic advice
of Alfred North Whitehead in mind: that we should both c[s]eek simplicity, and
distrust it'.

85 For example, he also claims that the tort of simple conspiracy is anomalous {TAR, 251-2 and 298); and
admits that there is weighty evidence to show that the law on exemplary damages is concerned with deterrence
and appropriate punishment as opposed to the vindication of C's rights {TAR, 87); furthermore his attempt to
offer some justification for the presence of exemplary damages within tort law actually proceeds from an
understanding that confuses exemplary damages with aggravated damages by focusing upon the 'degrading'
conduct involved {TAR, 86). For a compelling account of why it is aggravated, not exemplary, damages that
cover this dignitary interest, see A. Beever, 'The Structure of Aggravated and Exemplary Damages' (2003)
23 OJLS 87-110.

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