On the "Property" and the "Tort" in Trespass


This Chapter studies how tort presumes and implements theories of rights.  Although most recent philosophical scholarship on tort has focused on corrective justice, by and large that scholarship takes for granted that tort corrects wrongs to substantive moral rights.  The morality that generates these rights is separate from and logically-prior to corrective justice.  Philosophical scholarship, however, has neglected how tort incorporates these substantive rights—and how it does so within a legal system focused not on rights but on wrongs and their correction.

This Chapter presents a conceptual portrait of the interplay between substantive rights and corrective justice.  The Chapter illustrates with trespass to land and four other related land-use tort doctrines, in the hope that the “property” and “tort” in trespass fairly represent tort’s rights-protecting and wrong-correcting functions.  If trespass is representative, tort declares and secures property rights backhandedly.  On one hand, the ultimate foundation of trespass and the other doctrines covered is to secure substantive property rights.  On the other hand, these doctrines do not expressly declare such property rights; they rectify specific wrongs interfering with different legal interests constitutive of the rights.  The doctrines canvassed accomplish their rights-protecting functions because, when taken as a whole, the wrongs are all tailored to prohibit conduct inconsistent with the underlying property rights.  

Although this interplay may seem convoluted, it probably makes practical sense.  Most important, tort law would be unmanageable if it were organized to declare and vindicate substantive rights directly against all possible duty-holders.  When an owner complains of a trespass, his complaint focuses on a manageable number of alleged wrongdoers and their particular alleged trespasses.