The approaching 20th anniversary of the non-appearance of a second edition of Fleming’s Tort contribution to the Clarendon Law Series is regrettable enough— although it seems that such anniversary is not now to be attained. What is more regrettable is that other authors and other publishers have, on the whole, failed adequately to fill the gap created by the late arrival of a new edition. This is not to say that a book like Williams and Hepple does not go some way in tackling the background of a “branch of English law the name of which conveys so little meaning to the average layman” (p. 1). Yet in trying to please three classes of reader—the beginner, the student and the ordinary member of the public (p. v)—the book probably ends up by failing all three. In the absence of an analysis of the ‘institutional system’ of Western law, is the layman or beginner really to be given an understanding of the rational foundations of tort by being blandly told that it is part of the ‘law of obligations’ (pp. 17, 19, 22)? Indeed by including ‘restitution’ within the law of obligations some jurists would argue that the authors are only compounding confusion.

The student might think he or she knows what is meant by a ‘right’, as indeed might the man on the Clapham omnibus if he was, say, to lose an eye as a result of a ticket machine attack by an irate bus conductor. Yet not only does the concept of a ‘right’, like the concept of the ‘law of obligations’, need some explanation when it comes to its actual application in the law courts (as the injured bus passenger might well discover if he were to sue London Transport for the conductor’s behaviour), but all three classes of reader may begin to feel confused when the public/private distinction—the “full implications” of which “are yet to be worked out” (p. 10)—is added to the Hohfeldian analysis of Ashby v. White (pp. 61–66). Indeed, even the legal theorist might wonder whether or not the authors’ analysis, in some ways most thorough, has in fact missed out the full implications of this new (for the common law) dichotomy. If public law rights are founded on the relationship between citizen and State, then surely the ‘duty’ which protects certain ‘interests’ like ‘freedom to vote’ or ‘freedom of speech’ is in itself a duty which could create a right for the citizen? After all, if the citizen is now under a duty towards the State, as some recent cases suggest, does it not follow that the State is under certain duties to the citizen?

All this, it must in fairness be said, is complex stuff for the classes of reader envisaged. But besides the traditional role of providing compensation for injury, tort has an important constitutional (i.e. public law) function as well. And so to examine the ‘foundations’ of the law of tort one must, in the end, examine the whole rational structure of law.