ENTITLEMENT AND THE BODY POLITIC: RETHINKING NEGLIGENCE IN PUBLIC LAW

Authors

  • DAVID COHEN
  • J C SMITH

Keywords:

Public Law

Abstract

In using the law of negligence to extend the liability of public bodies for the recovery of losses associated with negligent or inadvertant state or, bureaucratic inaction, the courts have distorted the principles of private law. Tort law is inadequate for the task of formulating the obligations public bodies owe to private individuals, as the state is a fundamentally different kind of body than are actors in the private sector . The authors set out, and argue for, a new principle or ground for defining the duties of the state: a principle of entitlement which rests on the presupposition that, while the state has the right to decide what benefits individuals are to receive, once the state has conferred those benefits upon any group, its members are entitled to that benefit, or to damages in lieu thereof.

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Published

1986-03-01

Issue

Section

Legal Commentary