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  • Peter Jaffey (a1)


This article elaborates upon and defends the distinction between “primary duty” claims and “primary liability” claims in private law introduced in a previous article. In particular, I discuss the relevance of the distinction to the debates over fault and strict liability and “duty skepticism” and to the relationship between primary and remedial rights. I argue that the tendency to assume that all claims in private law arise from a breach of duty is a source of error and confusion. As a prelude to the discussion, I set out an analysis of a claim or remedial right in private law as a Hohfeldian power correlated with a remedial liability. I also consider whether primary-liability claims can be formulated in terms of the legal relations found in Wesley Hohfeld's scheme, and I make some general comments about Hohfeldian analysis.



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1. Jaffey, Peter, Duties and Liabilities in Private Law, 12 Legal Theory137 (2006).

2. 109 Minn. 456, 124 N.W. 221 (1910).

3. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, (David Campbell & Philip A. Thomas eds., 2001); Nigel E Simmonds, Introduction, in Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, (David Campbell & Philip A. Thomas eds., 2001).

4. It is often given as the standard example, for example in the introduction by Simmonds, supra note 3.

5. This argument is advanced in Jaffey, P., Hohfeld's Power-Liability/Right-Duty Distinction in the Law of Restitution, 17 Can. J.L. & Jurisprudence295 (2004). The same way of explaining the remedial relation was previously proposed in Zipursky, Benjamin C., Civil Recourse, Not Corrective Justice, 91 Geo. L.J.695, 718–721 (2002–2003).

6. Neil McCormick, Children's Rights: A Test-Case for Theories of Right, in Legal Right and Social Democracy: Essays in Legal and Political Philosophy (1982), at 161–162. A number of responses to McCormick have appeared; see, e.g., M.H. Kramer, Rights without Trimmings, in M.H. Kramer, N.E. Simmonds & H. Steiner, A Debate over Rights: Philosophical Enquiries (1998), at 27–28.

7. If D is bankrupt, the value of the debt declines, whereas in these cases the problem is that D cannot pay the debt at the moment, even though he has the necessary wealth.

8. Cf. infra note 28.

9. Arthur Ripstein, Philosophy of Tort Law, in The Oxford Handbook of Jurisprudence and Legal Philosophy (Jules Coleman & Scott Shapiro eds., 2002), at 671.

10. It is, in fact, customary to refer to a remedial liability rather than a duty in this situation, though I place no great store by that.

11. Or, for some purposes, it is the combination of the remedial power referred to in the text and the distinct power to take proceedings. The remedial power referred to in the text is in effect the power to execute judgment, C's exercise of which is subject to his taking legal proceedings in which the conditions for a valid claim are established.

12. Raz, Joseph, Legal Rights, Oxford J. Legal Stud. 4 (1984) 1, 14–15.

13. The expression is used in Halpin, Andrew, Rights, Duties, Liabilities, and Hohfeld, 13 Legal Theory23 (2007), following Hohfeld, supra note 3, at 21–27.

14. See, e.g., Halpin id. at nn. 7 and 34; see also Kramer, supra note 6, at 104.

15. Also, if C's conduct is characterized as the exercise of a power, it is not in virtue of being a breach of duty that it gives rise to the claim, so the supposed primary right-duty relation is redundant.

16. This seems to be Kramer's position; see Kramer, supra note 6, at, 22.

17. Hohfeld, supra note 3, at 21–27.

18. I take it that a principle along these lines is widely accepted, although of course there are difficulties surrounding it that I do not pursue here. It is particularly associated with H.L.A. Hart, Punishment and Responsibility (1968).

19. This does not mean, of course, that an agent should be judged according to her own moral standards rather than the law's. Also, subjective fault with respect to a legal standard does not imply that the conduct is immoral, because one can be subjectively at fault with respect to a legal standard that is misguided.

20. See, e.g., Larry A. Alexander, The Philosophy of Criminal Law, in The Oxford Handbook of Jurisprudence and Legal Philosophy 822–831 (Jules Coleman & Scott Shapiro eds., 2002).

21. Peter Cane, Responsibility in Law and Morality (2002), at 105; David G. Owen, Philosophical Foundations of Fault in Tort Law, in Philosophical Foundations of Tort Law (David G. Owen ed., 1995).

22. (1868) L.R. 3 H.L. 330.

23. See, e.g., Cane, supra note 21, at 82.

24. See Tony Honoré, Responsibility and Fault (1999), at 16, and esp. ch. 2, Responsibility and Luck, originally published in 104 Law Q. Rev. 530 (1988). If D is incapable of reaching the stipulated standard, he can be at fault for failing to take account of his own weaknesses in engaging in an activity he cannot perform safely, though he may not be capable of judging his own weaknesses; id. at 21. Even if the standard is such that everyone can reach it, although with differing levels of difficulty, on the subjective approach it is not the failure to meet the standard itself that is wrongful, but the failure to take steps to achieve it; one would expect the burden of compliance rather than the standard to be uniform.

25. See, e.g., Cane, supra note 21, ch. 3; Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law (David G. Owen ed., 1995), at 259; Arthur Ripstein, Equality, Responsibility and the Law (1999), ch. 3; Goldberg, John C.P. & Zipursky, Benjamin C., Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 Fordham L. Rev.1563 (2006).

26. Ripstein criticizes Perry for trying to combine the choice theory with strict liability in the form of an objective standard; Ripstein, supra note 25, at 97–104 discussing Perry, Stephen R., The Moral Foundations of Tort Law, 77 Iowa L. Rev.444 (1992).

27. Cane, supra note 21, ch. 3; Ripstein rejects the subjectivist approach in criminal law as well as tort law; Ripstein, supra note 25, ch. 6. Conversely, some writers reject the objective standard in tort; see Beke, Paul A., The Objective Standard in Weinrib's Theory of Negligence: An Incoherence, 49 U. Toronto Fac. L. Rev.262 (1991).

28. However, there can be a duty to investigate the possible consequences of acting, so that D can, in effect, be at fault with respect to the harmful consequences of an act that he did not know about if he would have discovered them by making the inquiries he should have made. This extension of the scope of the duty can be expressed in terms of a doctrine of “constructive knowledge”; see Peter Jaffey, Private Law and Property Claims (2007), ch. 7.

29. Cf. Cane, supra note 21; Ripstein, supra note 25.

30. Honoré, supra note 24.

31. Id. at 9.

32. Id. at 29.

33. Id. at 25–26.

34. Id. at 9. He also says that taking decisions in everyday life is like betting on the outcome of our acts; Id. at 25–26.

35. Id. at 26.

36. For example, this is the approach of Gardner, who explicitly argues in defense of strict-liability duties, including duties to achieve a result that may be impossible; John Gardner, Obligations and Outcomes in the Law of Torts in Relating to Responsibility: Essays for Tony Honoré on His Eightieth Birthday (John Gardner & Peter Cane eds., 2001).

37. Other risk-allocation arguments, such as the argument for “enterprise liability,” may be consistent with the choice theory in this respect as well.

38. The choice theory of responsibility is often discussed in connection with the concept of moral luck, in particular “resultant” or “consequential” moral luck. There is said to be moral luck where it is justified to blame someone for the consequences of an act that was beyond his control, or to inflict punishment on him in respect of an act and its consequences where the act was beyond his control, or where the severity of the punishment was out of proportion to his subjective fault in relation to those consequences. In civil law, again there appears to be a case of moral luck where it is justified for D to incur liability in respect of the consequences of an act or event outside her control or where the liability is out of proportion to her subjective fault. The argument against strict-liability duties is an argument against consequential moral luck, but the argument does not apply in the same way to primary-liability claims, which do not involve holding D to blame or treating him as morally responsible for wrongdoing, and the absence of a requirement of fault does not mean that moral luck is necessarily involved. For a general discussion of moral luck, see Dana K. Nelkin, Moral Luck, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2008),

39. Holmes, Oliver Wendell Jr., The Path of the Law, 10 Harv. L. Rev.457 (1897).

40. See Goldberg & Zipursky, supra note 25. See also Perry, supra note 26; McBride, Nicholas J., Duties of Care—Do They Really Exist?, 24 Oxford J. Legal Stud.417 (2004).

41. Including the case where an equivalent duty is owed by one to many or many to one.

42. Goldberg & Zipursky, supra note 25, refer to this as the “guidance rules” approach. It would generally be taken to cover corrective justice approaches to tort law as well. “Corrective justice” lays the emphasis on the “duty of repair” rather than the bilateral character of the law, which is better conveyed by “commutative justice” or “transactional justice.”

43. See Jules Coleman, The Practice of Principle (2001), 13–24 at 18.

44. Id. at 16, 35. It amounts to a version of the now-discredited “sanction theory of duty”; see Goldberg & Zipursky, supra note 25, at 1572; P.M.S. Hacker, Sanction Theories of Duty, in Oxford Essays in Jurisprudence (2d ser., A.W.B. Simpson ed., 1973).

45. Or a formulation in terms of public duties owed to the state or the community.

46. For a number of examples and some critical comment, see McBride, supra note 40, at 418.

47. This strand is presumably derived from the old forms of action and the division between law and equity.

48. The contract is not necessarily frustrated because the outcome may have been in contemplation.

49. Nicholas J. McBride & Roderick Bagshaw, Tort Law (2d ed. 2005), at 39 n. 15.

50. See, generally, Waldron, Jeremy, A Right to Do Wrong, 92 Ethics21 (1981); William A. Edmundson, An Introduction to Rights (2004), ch. 8. The discussion has generally been focused on moral rights. For an example from private law, see Kramer, supra note 6, at 15–16. The “right to do wrong” analysis may be applicable to the issue of “self-help,” where C tries to secure the performance of a duty owed to him by using force or threats instead of going to law. Here the issue is not simply whether D had a legal duty to C but whether self-help by C should be limited or excluded. An unusual type of case that sometimes appears in the literature is where D does not do what he has contracted with C to do because circumstances compel him to do something incompatible with it, for example, embark on a rescue. Here it has been said that D acts wrongfully and is liable to pay compensation but nevertheless was justified in not performing; or, as it has been put, D infringed C's right to performance but did not violate it; Judith Jarvis Thompson, The Realm of Rights (1990), at 122. Whether or not this is the right way of understanding this type of case, it is not the ordinary type of case referred to in the text in which specific performance is denied.

51. See, e.g., Raz, Joseph, Promises in Morality and Law, 95 Harv. L. Rev.916 (1982).

52. These lines of argument are, of course, associated with the idea of “efficient breach.”

53. In Jaffey, supra note 28, at 50, I suggest an approach to contract along these lines, in the form of a version of the reliance theory of contract. In general, the predominance of right-liability relations in contract is explicable in terms of the reliance theory of contract, another version of which is in Raz, supra note 51.

54. But see McBride, supra note 40, at 427, giving examples of injunctions awarded in tort cases in support of the recognition of duties in tort law.

55. A well-known example is Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (N.Y. 1970). This case has attracted attention in the discussion of property rules and liability rules, derived from Calabresi, Guido & Melamed, A. Douglas, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev.1089 (1972). I do not explore the connection between this distinction and the distinction between primary duties and primary liabilities.

56. Though there is, of course, controversy over the legitimacy of such responses in private law for other reasons.

57. Jaffey, supra note 1. There is a further issue in Vincent: the suggested approach explains the measure of the award in that case only if the deemed license-fee measure can in appropriate circumstances be compensation for loss.

58. It may be that ownership passes even though the transfer is invalid. See, further, Jaffey, supra note 28, at 97.

59. In the form of the strict liability tort of conversion.

60. This point is considered further in Jaffey, supra note 28, at 103–110.

61. A right-duty relation can also, of course, allocate risk, but not directly in the sense that the materialization of the risk itself generates a claim. Allocation of risk is not confined to cases of accidents and includes cases where D acts in the full knowledge that he will incur a liability, such as where he decides not to perform a contract. Halpin appears to assume that only the former can be described as being based on an allocation of risk; Halpin, supra note 13, at 37–38.

62. See text following note 13.

63. Thus one might suggest that Vincent should be explained in this way, as Halpin suggested in Halpin, supra note 13, 28.

64. In some cases there is a volitional act by D at some time before the claim arises. For example, where the rule in Rylands v. Fletcher applies, D commits a volitional act by bringing the potentially harmful thing onto his land, though no claim arises until later. This is how Halpin understands Vincent: in mooring his boat, D did not confer a claim on C; instead he exercised a power to change the legal relation between himself and C to a new relation by virtue of which a claim would arise subsequently in the event of damage: Halpin, supra note 13, at 28. The question then is how to characterize this new relation. According to Halpin, C has a conditional right to compensation for damage caused to the dock, the condition being the occurrence of damage. On this understanding, all the examples of what I describe as primary-liability claims, including the ones Halpin analyzes in terms of a power, can be formulated in the same way—as a conditional form of the remedial relation, the condition being the event that generates the claim. This is considered in the next section.

65. Jeremy Waldron, The Right to Private Property (1990), 117–24. Thomson, supra note 50, at 90.

66. Hohfeld's work is concerned exclusively with the classification of legal relations by form or modality. It does not attribute any significance to the distinctions between contract, tort, and property, which are a matter of the character of the moral justification for the body of law in question. It is this “formalist” or “conceptualist” aspect of his thinking that makes Hohfeld seem dated.

67. According to Kramer, Hohfeld's scheme is “not susceptible to moral objections or empirical refutation”; Kramer, supra note 6, at 22. However, Kramer's real concern here is correlativity. There is nothing in the nature of Hohfeld's scheme to preclude the possibility that a type of legal relation might be found in the case law that has been omitted from the scheme. Halpin, supra note 13, also rejects the suggestion that Hohfeld is incomplete in the way suggested, though he does accept a version of the distinction between primary-duty claims and primary-liability claims.


  • Peter Jaffey (a1)


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