A Public Role for the Intentional Torts
Author: Priel, Dan
Source: King's Law Journal, Volume 22, Number 2, July 2011 , pp. 183-208(26)
Publisher: Hart Publishing
Abstract:In debates on the foundations of tort liability proponents of the private conception of tort law often invoke the intentional torts as proof of the superiority of their model. In this essay I focus on the intentional torts in an attempt to challenge that position. The background for discussion is recent litigation that ended in the House of Lords' decision in Ashley v Chief Constable of Sussex Police. Most commentary on this decision concentrated on a few dicta that purportedly show the decision supports the view that tort law is concerned with private vindication of rights. In this article I examine the intentional torts against a background of a broad shift that has been taking place within tort law, and in particular the tort of negligence, away from 'private law' concern with the particular individuals involved in the litigation and towards broader 'public' concerns. After describing this shift in general, I turn to the intentional torts. I consider three possible private law interpretations of the role of the intentional torts, and I show that for different reasons they are all deficient. I then highlight an aspect of Ashley that has been ignored by other commentators and which fits the public interpretation of tort law. I argue that this aspect provides a more convincing explanation for the decision, and one that aligns the intentional torts with the more public conception of tort law.
Document Type: Research Article
Publication date: July 1, 2011
- Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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