Violation of a Right and Tort Law

Abstract The chapter examines the role which violation of a right plays in German, English, and French tort law. It focuses on the choices made by legislators and judges in the three jurisdictions and, in the case of English law, on the scholarly attempts to reframe tort law questions by reference to rights. The chapter identifies three distinct functions of violation of a right in general tort law: structural, doctrinal, and rhetorical. It discusses each jurisdiction individually to establish which of the three functions are present and how they manifest. In relation to German law, the inquiry focuses on the role of rights in expanding liability for negligence, the development of stricter liability within a fault-based liability context, and the recovery of damages without proof of loss. In relation to English tort law, the chapter considers the structural absence of violation of a right and the reasons for this absence; it also argues that the doctrinal presence of rights can explain substantial awards in the absence of loss, the limited recovery of pure economic loss in negligence, and the preservation of strict liability actionable-per-se torts. In relation to French tort law, the chapter identifies only a localized doctrinal use of rights, the structural and rhetorical functions being currently absent from the debate. The chapter compares the way the three legal systems understand tort law rights and reflects on the conceptual and institutional factors that contribute to the emergence of rights-based reasoning in a tort law system.