By John MacLeod, Senior Lecturer in Private Law, University of Edinburgh
Since the turn of the 21st century, Common Lawyers have discussed the basis of tortious liability extensively.[1] In particular, defences have been mounted against instrumentalism (i.e. considering law in terms of social policy). Much of the analysis turns on the idea that tort is about responding to infringements of primary rights (or to breach of primary duties). Primary rights are rights (and primary duties are duties) which do not arise from infringement of another right. They are contrasted with secondary rights, which do arise from such infringements. Property rights or rights to contractual performance are primary; rights to compensation for culpable damage or breach of contract are secondary.
If torts are thus conceptualised, the reasons which justify a primary right explain the wrongfulness of the tortious action and so support liability. Justifications for primary rights can vary and need not depend on some general logic within tort law.
What, if anything, does this literature mean for Scotland?
“Uncivilian” and irrelevant?
It might be thought that its reliance on primary and secondary rights is antithetical to the Scots law’s Civilian roots.
To see why, consider Birks’ analysis of Austin’s critique of the Justinianic classification of obligations.[2] Austin thought dividing obligations into contract, quasi-contract, delict and quasi-delict confounded the distinction between primary and secondary rights:
By obligationes ex delicto, they meant what we mean by the same phrase in English law, namely, duties arising from violations of rights which avail against the world at large. Now the authors of the Institutes oppose to these obligationes ex contractu: but rights and duties arising from contracts and quasi-contracts are rights and duties existing for their own sake, as the Germans express it: they belong to the class of primary or principal rights and duties. Consequently, there is no place for the obligations which arise from the breach of obligations ex contractu and quasi ex contractu; these are consequently attached to the description of those obligations themselves. By this rule, however, obligationes ex delicto (by which the authors of the Institutes meant obligations which arise from violations of jura in rem) ought, in consistency, to be attached to that part of the law which is concerned with dominia or jura in rem[.][3]
Birks thought the gap between Austin’s expectations and the Roman classification arose from differences between the Common Law’s writs and the formulae for Roman law actiones. The writs and the formulae had much in common: both were templates which parties required to use in order to bring their claim; both shaped thinking about substantive law.[4]
They differed in one key aspect: some writs had a two-tier form, requiring the plaintiff to identify both what gave rise to the right and the circumstances of its infringement. Consider the writ of assumpsit for negligence by a carrier:
[..] whereas the same T. at the vill of S. had undertaken to carry a certain pipe of wine belonging to the selfsame N. safely and securely from the aforesaid vill of S. to the vill of F.: the aforesaid T. carried the pipe so carelessly and improvidently that in default of the selfsame T. the pipe was cracked, so that the same N. lost the great part of the aforesaid wine, to the damage of the selfsame N. ten marks[.][5]
This may be contrasted with the actio ex empto:
Whereas A.A. bought the slave which is in question from N.N., which matter is the subject of this action, whatever on that account N.N. ought ex fide bona to do for or give to A.A., for the value of that … condemn …[6]
Of course, the remedy is sought because of a breach, but the formula justifies it solely by reference to the existence of the contract. The same pattern occurs across the other contractual actions. For delicts, the formulae refer to the wrongful conduct without reference to any norm explaining the wrongfulness. The formula for the actio iniuriarum ran:
Whereas A.A. was hit in the face (publicly abused, driven out of the public baths) by N.N., for as much as shall seem right and fair etc. condemn etc.[7]
Roman formulae were thus one-tier. Birks suggests that “Austin failed to notice that in [the Romans’] system his division was not needed.”[8] Insofar as modern civilian systems build on Roman foundations, the primary/secondary division might be unnecessary for them too.
Jonathan Brown makes a similar argument in relation to Scottish delict:
[W]rongfulness per se is nonetheless delict’s “distinguishing characteristic”, as revealed from the etymology of the term as derived from the Latin delictum. This term, in Roman law, comprehended the law relating to obligations arising ex maleficio [from wrongdoing]. That is to say, the law of delict, as an organising category, has within the Civil law (and so the Scots legal) tradition long denoted all the rules and principles of law which determine when a person is under an obligation, imposed ex lege [by law] irrespective of any other legal ground, to desist from wrongdoing or to afford compensation where such wrongdoing has occurred. […]
There may be—indeed there often is—considerable overlap between the law of delict and other areas of law concerned with wrongdoing, but the sine qua non of delict remains that the topic allows for legal remedy for “wrongfulness” per se, determined by its own internal identifiable principles.[9]
Reliance on primary rights might further be taken to reflect the particularist tradition of English law, with individual torts for specific interests reflecting particular rights.[10] This contrasts with the general, principled approach which Scots law is said to apply:
It appears accepted that delictual liability in Scots law may be subsumed under the single general principle, damnum injuria datum, that is, loss caused without legal justification, unlawfully or wrongfully.[11]
Does this mean that Scots law has little to learn from rights-based approaches in the Common Law?
Primary rights beyond the Common Law
Such a conclusion would be a mistake.
We may note, first, that the two-tiers were not always obvious in the Common Law. The distinction eluded Austin’s predecessors.[12] This is unsurprising: some of the writs which were important in shaping the tort law (such as trespass vi et armis) referred to wrongful conduct but not to a prior duty.[13]
Austin applied the insight prompted by writs like assumpsit to other areas where the writ did not give such a prompt. This does not invalidate his scheme: as long as the idea is useful (and it has proven to be), it is valid. The usefulness of Austin’s division is not limited to the Common Law.
This seems clear in relation to contract: in Scotland as in England both the obligations arising from the contract and conduct which is alleged to be a breach need to be considered when damages are sought. In Scotland, as in England, the obligation to perform is not the same as that to pay damages.
Are matters different in the context of delict? Not necessarily. Austin’s account may have been original; it was not unprecedented. His reference to “the Germans” in the passage quoted above hints as much. A number of civilian writers posited primary rights (without using the term) in giving their account of delict.
Some suggested rights in the person or rights of personality as the basis for delicts against the person. Among them were Donnellus[14] and Austin’s rough contemporary Puchta:
In the human being, the natural subject of [legal] personality, a right arises which is held by the person and whose object is the person himself.[15]
An infringement of personality, which does not consist in a denial of the same [i.e. alleging that someone does not possess legal personality] is a delict. The delictual obligations comprise an indirect protection of the right of personality.[16]
Similar ideas can be found in Müller[17] and Windscheid.[18]
The line of thinking continued post-codification. For von Thur, private law duties corresponded to subjective rights held by another.[19] He went on to argue that, where a statute makes a claim for damages conditional on fault (Verschulden), the relevant conduct must be a breach of a private law duty.[20]
While the distinction between primary and secondary rights may be “unRoman”, it is not really “uncivilian”. Just as in the Common Law, understanding in the Civilian tradition can develop. The recognition of this distinction seems just such a development.
Primary rights in Scots delict
In a recent article in the Edinburgh Law Review, which is available here, I sought to make two points which suggest that Scots lawyers have room to consider grounding wrongfulness on delict in primary rights:
- The history of delict in Scotland is not dominated by approaches which ground liability on principles internal to delict and which draw on the Justinianic categories;
- There are hints of a rights-based approach in Stair’s Institutions and such an approach is fully embraced in Bell’s Principles.
In relation to the first point, Scots private law outsourced determination of wrongfulness to criminal law for much of its history. This is perhaps most striking in the case of Mackenzie, who omitted discussion of the Roman delicts from the Institutions.[21] Determination of wrongfulness was left to criminal law. His discussion of the various crimes in his Laws and Customs of Scotland in Matters Criminal is largely particularistic and neither the rationale nor the organization draws heavily on the Roman delictual categories.[22]
Mackenzie’s decision had significant consequences: Erskine followed Mackenzie’s arrangement in the Principles, the leading student textbook from its first publication in 1754 until the advent of Gloag and Henderson’s Introduction to the Law of Scotland in 1927. Delict was therefore omitted. It made its first, brief appearance in Guthrie Smith’s unsuccessful “New Edition” of 1860.[23] Guthrie Smith’s starting point was civil liability for criminal wrongs. He acknowledged liability going beyond criminal wrongdoing but made it clear that such liability required iniuria, which he characterised as “invasion of a legal right”.
Criminal law’s importance diminished over time but even those who leant less heavily on it emphasised nominate delicts/remedies such as spuilzie and assythment, each with a “specific matrix” of conditions for liability.[24] These matrices are difficult to rationalise as applications of a single, general principle of damnum iniuria datum or in terms of a tripartite structure of iniuria, damum iniuria datum and interference with property as proposed by Brown.[25]
Among the institutional writers, only Erskine can really be said to have attempted to ground his whole analysis on a general principle of liability within delict. In his Institute, he wrote:
Every fraudulent contrivance, or unwarrantable act, by which another suffers damage, or runs the hazard of it, subjects the delinquent to reparation.[26]
This seems over-expansive. It tends to swamp the nominate delicts and makes it difficult to explain cases where someone causes loss but escapes liability without being asked to provide a justification or warrant for their action. Although later writers such as Guthrie Smith, Glegg and McKechnie accepted Erskine’s position at a rhetorical level, they did not apply it seriously to their account of the nominate delicts.[27]
Erskine’s approach stands in contrast to Stair’s and to Bell’s. Stair’s is complex; expounding it took a lot of space in the article. Here, it must suffice to note two things.
First, Stair puts rights in three categories: liberty, obligation and dominion.[28] The latter two essentially correspond to personal and real rights as we understand them today. The first, liberty, is a right “distinct from the dominion of the creatures, and from obligation […] encroachments upon, and injuries against, the right of liberty, of all others are the most bitter and atrocious.”[29] The right of liberty inheres in a person as such and is distinct from patrimonial rights. Here we have the germ of a personality right.
Secondly, Stair opens his account of Reparation with a catalogue of “Rights and enjoyments”:[30]
- Life, members and health
- Liberty
- Fame, reputation and honour
- Content, delight or satisfaction
- Goods and possession
It is according to these that “damages and delinquencies may be esteemed.”
Stair’s move towards primary rights was partial. He noticed the tension which Austin identified: “a delinquence may arise in non-performance of the contract” which might suggest that breach should go into the section on reparation.[31] Stair sought to resolve this by saying that, in such cases, “the original cause of the obligation is the contract” whereas in the present section he was only concerned with “obligations which originally arise from delinquences, as the first cause thereof.”[32] This may explain why his catalogue of rights and enjoyments is in the title on Reparation. Further, his catalogue seems to include both rights (such as liberty) and interests (such as content, delight and satisfaction).
However, in developing liberty as a right in ones’ own person and then framing that right as one of the “rights and enjoyments” which shape reparation, Stair laid the foundation for a fuller rights-based approach.
That would come from Bell. He grounded the duty of reparation on (primary) rights:
The rights of individuals, either to property, or to personal liberty, safety, or reputation, are not only protected by penal law, but in civil law they furnish, when invaded, ground of action for reparation.[33]
Bell developed an account of “Absolute Rights of Individuals” which framed the traditional delicts against the person by reference to rights to safety, freedom and reputation.[34] These rights and rights to property were what the law of delict protected and had their original cause outside it. His approach is similar to that taken by proponents of primary rights as the basis of wrongfulness in tort.
Of course, Bell’s approach did not come any closer to hegemony than Erskine’s. At least at a rhetorical level, Erskine’s probably had more purchase; but it has not developed into a stable account of delict.
Nonetheless, Bell’s example shows that the distinction between primary and secondary rights and associated ideas about wrongfulness in delict are by no means inimical to Scots law’s traditions. The question is whether they help us to give a clear and coherent account of the rules. That is a question for another day, but I hope it is one which I have shown is worth asking.
[1] The literature is too voluminous for comprehensive citation. The following are important: E J Weinrib, The Idea of Private Law (1995); R Stevens, Torts and Rights (2007); J Gardner, From Personal Life to Private Law (2018); J C P Goldberg and B C Zipursky, Recognizing Wrongs (2020); J Stapleton, “Taking Judges Seriously v Grand Theories” in J Stapleton, Three Essays on Torts (2021) 1; G Keating, Reasonableness & Risk: Rights and Responsibility in the Law of Tort (2022); R Stone, “Who Has the Power to Enforce Private Rights?” in P B Miller & J Oberdiek (eds), Oxford Studies in Private Law Theory: Volume II (2023) 25.
[2] P Birks, “Obligations: One Tier or Two” in P G Stein & A D E Lewis (eds), Studies in Justinian’s Institutes in Memory of J A C Thomas (1982) 18.
[3] J L Austin, Lectures on Jurisprudence, 5th edn, S Austin & R Campbell (eds) (1885) 769.
[4] J Baker, Introduction to English Legal History, 5th edn (2019) ch 4: D Johnston, Roman Law in Context, 2nd edn (2022) 136–139.
[5] Baker, Introduction to English Legal History (n 4) 586 and 587.
[6] Birks, “Obligations, One Tier or Two” (n 2) 29.
[7] Ibid 31.
[8] Ibid 37.
[9] J Brown, “Damnum is where one starts from? Questions to be asked in determining liability for negligence in Scots law” 2024 Jur Rev 122–123.
[10] J Brown, “The Mouse and the Snail” 2022 SLT 229-234, 235-242, 247-255 and 257-264.
[11] G Cameron “Delict” in W M Gloag and R C Henderson, The Law of Scotland, 15th edn by H L MacQueen et al (2022) paras 25.02.
[12] Birks, “Obligations, One Tier or Two” (n 2) 24.
[13] Baker, Introduction to English Legal History (n 4) 584 and 585.
[14] H Donellus, Commentarii de iure civili, 6th edn, J C König (ed) (1822) 2.8 esp 2.8.3.
[15] G F Puchta, Pandekten, 12th edn, T Schirmer (ed) (1877), § 114 (my trans): “In dem Menschen, dem natürlichen Subject der Persönlichkeit, gestaltet sich diese selbst zu einem Recht, welches der Person zusteht, und dessen Gegenstand sie selbst ist.”
[16] Puchta, Pandekten (n 15) § 122 (my trans): “Eine Verletzung der Persönlichkeit, die nicht eine Bestrietung derselben in sich schliest, ist ein Delict. Die Delictsobligationen enthalten einen mittelbaren Schutz des Rechts der Persönlichkeit.”
[17] K O Müller, Lehrbuch der Institutionen (1858) § 11.
[18] B Windscheid, Lehrbuch des Pandektenrechts, 9th edn, T Kipp (ed) (1963) § 40.
[19] A von Tuhr, Allgemeiner Teil des deutschen Bürgerlichen Rechts: Vol 1 (1910) 93.
[20] Von Tuhr, Allgemeiner Teil (n 19) 98–99. His discussion anticipates 20th century concerns among Common Lawyers about duties (such as the duty of care) where there is no mechanism for compelling performance.
[21] G Mackenzie, Institutions of the Laws of Scotland, 2nd edn (1688).
[22] G Mackenzie, Laws and Customs of Scotland in Matters Criminal, O F Robinson (ed) (Stair Society vol 59, 2012). See O F Robinson, “Law, Morality and Sir George Mackenzie” in H L MacQueen (ed), Miscellany VI (Stair Society vol 54, 2009) 11.
[23] J Erskine, Principles of the Law of Scotland, New [13th] edn by J Guthrie Smith (1860) 389.
[24] The phrase is taken from D Visser and N Whitty, “The Structure of the Law of Delict in Historical Perspective” in K Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 2 – Obligations (2000) 422 at 425.
[25] Brown, “Damnum is where one starts from?” (n 10) at 125.
[26] Ersk, Inst 3.1.13.
[27] J Guthrie Smith, The Law of Damages: A Treatise on the Reparation of Injuries as Administered in Scotland, 2nd edn (1889); A T Glegg, A Treatise on the Law of Reparation, 2nd edn (1905) and H McKechnie, “Reparation”, in Lord Dunedin et al (eds), The Encyclopaedia of the Laws of Scotland, vol. 12 (1931). For discussion, see “Part I: The Conduct-Harm Model before Donoghue” in the article.
[28] Stair, 1.1.18.
[29] Stair, 1.2.2.
[30] Stair, 1.9.4.
[31] Birks, “Obligations, One Tier or Two” (n 2) 22.
[32] Stair, 1.9.4.
[33] Bell, Prin, § 543.
[34] Bell, Prin, §§ 2028ꟷ2057.
