I don't think hypothetical people have rights.  But if you are to say that C's right correlates to D's duty (and if you mean it in the way Hohfeld meant it), you cannot say the duty exists prior to and independently of the right.  D can't owe a duty to C (not) to do X without C having a right that D (not) do X.  They are one and the same thing.

Charlie.

-----Original Message-----

From: Robert H Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: Wed 1/14/2009 6:32 PM

To: Webb,CE

Cc: robert.stevens@ucl.ac.uk; jneyers@uwo.ca; obligations@uwo.ca

Subject: Re: ODG: Duties to the unborn

 

Charlie wrote

>

> I have no qualms with the conclusion that injuries resulting from

> actions occurring before a claimant's birth may be actionable.  However,

> I don't think it's so easy to say that such a claim arises from the

> breach of a duty owed to the claimant without also accepting that we can

> owe duties to - and rights can be held by - as yet unborn children

> (indeed even "unconceived" children if the baby food example is followed

> through).  Even if we were to say that the harm is only suffered upon

> birth, the conduct of the defendant to which such a duty would apply

> precedes this.  If there are no rights pre-birth, there can be no

> corresponding duties.

>

I don't accept that.

Say a babyfood manufacturer manufactures powdered baby milk on 1 February

2009. A baby is conceived on 1 March 2009 and born on 1 December. On 2

December she is given some of the milk, and is poisoned because the milk

was carelessly manufactured.

The earliest the child could be a right-holder is upon conception (the

latest is birth). The manufacturer's duty is owed to all those babies who

he could reasonably foresee would be injured. That the right-holder, and

indeed the right to which the duty correlates, did not exist at the time

of manufacture is neither here nor there. There is a wrong to the child on

2 December even though the relevant right did not exist at the time of the

negligent manufacture. The duty correlates to a future right, not a

current one, in this case.

I can't see how hypothetical people, who may never exist, can have current

rights today, although future persons will acquire rights which we are,

today, under a duty to respect. So, it is not meaningless to talk of the

"rights of future generations and our need to respect them", even though

those rights don't exist yet, and might not if there were a global

catastrophe. It is only the duty which exists today.

Jason wrote

"Aren't you really creating a right to bodily integrity in disguise

then? Isn't it simpler to recognize the right to bodily integrity from

conception."

I don't think it is the same as the right to bodily integrity, as I

explained. It might be simpler to say we acquired the right to bodily

safety upon conception, but the problem is that the caselaw seems to say

we don't. The unborn cannot sue, for example. So we need another

explanation. Unless you live in England.

R

Please access the attached hyperlink for an important electronic communications disclaimer: http://www.lse.ac.uk/collections/secretariat/legal/disclaimer.htm