Citation(2015) 27 SAcLJ 626
Published date01 December 2015
AuthorAllan BEEVER Professor Of Law, Auckland University Of Technology.
Date01 December 2015

Tort lawyers have become used to the notion that, though focused on wrongs and remedies, the law can fruitfully be analysed in terms of the primary rights that underlie its actions. However, this article argues that these rights are frequently misidentified. By way of example, the article shows that it is mistaken or at least misleading to speak of a right to reputation or bodily integrity as underlying the torts of defamation or trespass to the person respectively. The article also suggests an alternative way of understanding the rights to which tort law responds, a suggestion that in turn serves to uncover the fundamental significance of tort law.

I. Introduction

1 Modern tort law portrays itself to its students in two main ways. Most obviously, it presents a rather long list of actions — battery, assault, false imprisonment, negligence, defamation, conspiracy and so on — and criteria for determining when those actions are available. In this way, tort law casts itself as a law of wrongs: a law detailing when defendants are said to have committed the named legal wrongs against plaintiffs. Many also maintain that the law presents itself as or as part of society's response to loss. In fact, however, this is not strictly so. There is nothing in the legal actions themselves that requires this interpretation. Nevertheless, during the course of the last century, this became the received view. Thus, at the beginning of the current century, Lord Bingham was able to state without argument that “the overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another”.1 For convenience, this can be referred to as the loss model.2

2 An important trend in recent tort law scholarship has been to shift attention from these faces of the law to focus on more implicit dimensions. There has been a tendency in particular to concentrate on the rights tort law implicitly recognises. As tort law acknowledges a set of wrongs that defendants commit against plaintiffs, it must also indirectly recognise a set of rights that plaintiffs hold against defendants.

Focusing on this implicit dimension of the law has been enlightening, because it has enabled solutions to seemingly intractable problems to come to light — most notably to the problem of the recovery of economic loss in the law of negligence.3

3 Importantly, this shift in emphasis from the actions themselves to the rights that underlie them has led to first a questioning of and now a rejection of the loss model. This has occurred because the rights underlying the law do not appear to be focused on the prevention of loss per se. Of course, this view does not deny that tort law compensates for loss, but it understands compensation differently from the loss model. Instead of regarding loss as recoverable in tort because individuals have a general entitlement to be free from hurt, the new understanding holds that loss is recoverable because it is the result of the violation of the plaintiff's rights; and it is the rights, not the loss itself, with which the law is directly concerned. According to this understanding, tort law is not correctly viewed as society's response to social cost; the loss model is in error.

4 This article is not a defence of this new way of thinking about tort law or an attack on the loss model. It begins with the acceptance that the loss model has been defeated. With that in mind, however, the article has two main aims. The first is to show that the dismantling of the loss model remains incomplete. Ironically, despite the fact that the focus on rights led to the rejection of the loss model, that model has inappropriately influenced understandings of the rights in question. As indicated above, these rights are implicit. They are the logical consequences of tort law's recognition of its list of wrongs. In determining their content, then, one would be influenced by one's understanding of what tort law is doing in general. Specifically, if one thinks that tort law is primarily concerned with loss, then one would tend to identify rights that also have an intimate connection with loss.4 This is what has occurred. Rights were identified before the loss model

was abandoned; thus, the model influenced the identification. As will be seen in the following,5 this has distorted our understanding of the law.

5 The second main aim is to begin to reveal tort law's genuine focus. If the law is not primarily concerned with loss, what is it concerned with?6 A definitive answer to this question cannot be provided here but general suggestions can be made. The result is a far more morally attractive picture of the law of tort than that suggested by the loss model. Thus, the importance of tort law is revealed and clarified.

6 The article focuses on two areas of the law: the torts of defamation and the law of trespass to the person. It does so because there is a relatively clear consensus on the rights protected by these torts. But this article argues that these purported rights either do not exist or are mere implications of more fundamental rights, rights that more clearly delineate the nature of the actions in question.

II. The law of defamation

7 It is not uncommon to assert that the law of defamation is a mess.7 How bad things are is a matter of debate. However, there is one thing that most commentators can agree on as clear and well established: the law protects a right to reputation. Unfortunately, however, there is no such thing.

8 What is a reputation? The Oxford English Dictionary defines reputation as “The condition, quality, or fact of being highly regarded or esteemed; credit, fame, distinction; respectability, good report”. As this helps to reveal, one's reputation is the product of the opinions of others. However, it must be clear that there can be no right to this, at least not in jurisdictions that respect freedom of thought. Even if A's despite of B is entirely unwarranted, B has no entitlement to have A's mind changed. There is no right to another's opinions of B. That must mean that there is no right to reputation either.

9 It might be said in reply that “the right to reputation” is really shorthand for the idea that individuals are entitled not to have their reputations unfairly attacked, or some such notion. On this view, then, the right in question is not really a right to a reputation but a right not to have one's reputation unfairly damaged. However, this suggestion raises important questions. One that may immediately come to mind is: What constitutes an attack on a reputation that is unfair? But there is an even more basic question: What does it mean to attack a reputation? This question must be asked because “attacking a reputation” is a metaphor. A reputation is not a thing that can be attacked in any literal fashion. What is meant, then, when one speaks of attacking a person's reputation?

10 Imagine a case in which A intentionally publishes a defamatory statement about B to C in an effort to discredit B. If it is said that A attacks B's reputation in this case, what does this mean? What A does is say something to C designed negatively to affect C's opinion of B, but of course that opinion is not what the law of defamation is trying to protect, not literally. If that were so, as the opinion is C's not B's, it would be C and not B who would have a cause of action against A (and the tort would be deceit or something of the kind). If B's reputation is constituted by the opinions that C (and others) have about him, then only C, not B, could have a right to B's reputation. The wrong A does B is not changing C's opinion of B simpliciter. B has no right to that whatsoever.

11 Beginning investigation of the law of defamation with the notion that the tort protects a right to reputation is a bad start. Why, then, has it been thought that this is where analysis should begin? The answer is that this picture is suggested by the loss model. In a case of defamation, the loss that the plaintiff suffers is characteristically a loss of reputation. Hence, the influence of the loss model has led to the view that the right protected by the law of defamation must be a right to reputation. However, if the loss model is abandoned, this conclusion should be abandoned too.

12 If the law of defamation is not concerned with a right to reputation, what is it concerned with? It is not possible to answer this question definitively here, but the following8 is intended as a suggestion as to how the basis of the law of defamation might be reconceptualised, a suggestion that will be useful also where the law of trespass to the person is concerned, as will be discussed below. Let us begin with a paradigm case.

13 Imagine that I claim on national television that you are a paedophile. Naturally, you are likely to be distressed by this. However, what exactly is the nature of the wrong that I do you? You do not want people to think ill of you; but if that were your complaint, then your grievance would be with the people who believe what I told them and not with me.

14 One might maintain that your complaint is rightly directed at me because I cause people to believe that you are a paedophile, but causation cannot provide the answer here, as the people who believe me likewise cause the relevant beliefs and yet are not wrongdoers. Perhaps the notion is that, unlike others, I wrongfully cause the beliefs, but this is unhelpful. If “wrongful” here refers to fault, then this cannot be the key to understanding the issues in question as the tort of defamation is not fault based. On the other hand, if wrongdoing in this context does not require fault, then it is unclear why the third parties are not also wrongdoers.

15 Fundamentally, the problem is that a reputation is constituted by beliefs and beliefs themselves cannot be characterised as wrongful. Even if they are arrived at on a false basis, beliefs are protected by...

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