Rob wrote:

"It may also be noted that the manufacturer has not breached his duty at

the time of manufacture. A breach of duty is a wrong. There is no wrong

until someone's rights have been infringed."

I don't think this is right.  In fact I think it reveals the sort of

error we can be led into if we're not careful in how we use the language

of "rights".

Sometimes we use the language of rights to describe the interests which

the law seeks to protect or effectuate.  So I have a right/interest in

my bodily integrity, reputation, property etc.  At other times we use

the language of rights to describe the demands I may make of others in

their dealings with me.  Here I have a right that you not hit me, not

defame me and so on.  In general we might say that these interest-rights

provide reasons for the recognition of these concrete claim-rights

(though such claim-rights may also be supported in other ways).  Only

these concrete claim-rights are truly correlative to duties.

Now let's say I have a right that you take reasonable care not to

physically harm me.  This (Hohfeldian) claim-right correlates to a duty

on your part to take care not to harm me.  You breach this duty if you

fail to act in the way the duty requires - namely if you fail to take

reasonable care.  It makes no difference that no harm in fact results

from your actions.  (Or rather it makes no difference to the question of

whether you have breached your duty - it does matter to the question of

what, if anything, I can then recover from you.)  Of course, we can say

in such situations that my interest-right in my bodily integrity hasn't

been infringed.  I escape your carelessness unscathed.  But that is not

the right I am asserting.  My (claim-)right that you take care not to

harm me has indeed been infringed, your duty to take care has been

breached.

This simply follows from the formulation of the right-duty relationship.

The conclusion that there is no breach unless and until harm has been

caused/an interest has been infringed can be supported only if we

reformulate that relationship.  So, rather than saying that you have a

duty to take care not to harm me, we might say instead that your duty is

simply not to harm me carelessly.  But this would involve a significant

change to the content of the right-duty.  Moreover I think it would be a

change for the worse.  If we think of duties as seeking to direct

conduct - telling the defendant how s/he is or is not to behave - then I

think we have good reason to encourage people actually to take care, not

simply to see that nobody is harmed when we are careless.

Take an extreme example.  Say I try and fail to assassinate you.  I

think by attempting to kill you I have breached a duty.  I think the law

would be defective if it didn't recognise such a duty.  I think that

when I am loading the gun, pointing it at you, preparing to pull the

trigger, the law tells me that I shouldn't be doing this, that you have

a right that I not do this.  Indeed, I think there is a good argument

that I breach the very same duty where I do shoot you.  Whether my shot

is successful or unsuccessful, the law is seeking to direct my conduct

in exactly the same way - namely, don't shoot.

Charlie.

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