John C.P. Goldberg & Benjamin C. Zipursky, Rights and Responsibility in the Law of Torts, in Donal Nolan & Andrew Robertson, Rights and Private Law 251 (2012).
Abstract: An adequate understanding of tort law requires distinguishing four senses in which “rights” figure in tort. First and most obviously, tort law imposes duties on actors to refrain from injuring others that are correlative to rights not to be injured in the ways proscribed by tort law. Second, tort law confers on one who suffers a violation of the right of non-injury a right of action, i.e., a legal power to hold the tortfeasor liable. Third, the legal power conferred on tort victims is grounded in a duty owed by the state to its citizens and their corresponding right to an avenue of civil recourse against those who have wronged them. Finally, the victim’s right against the state to law for the recourse of wrongs derives in part from the natural right – or, more precisely, the natural privilege – of individuals to make certain demands of those who have wronged them. By distinguishing among the kinds of rights involved in tort law, and explaining how they connect to one another, civil recourse theory explains more satisfactorily than other theories the particular sense in which tort is a law of rights and responsibilities.