Private Nuisance Law: A Window on Substantive Justice

Abstract

More than any other tort action, the private nuisance action reveals the proper nature and full scope of tort law as an implementation of the classical principles of justice and their underlying moral norm of equal freedom. The private wrong addressed by the private nuisance action is one of the few wrongs that it is feasible to prevent ex ante, and which often is prevented ex ante through the granting of an injunction, rather than being merely remedied ex post through monetary damages. As such, the private nuisance action clearly demonstrates the error of those, including many efficiency theorists, who describe tort law as merely setting prices, in the form of damages, for permitted invasions of others’ interests, rather than, correctly, as the area of law that most fully addresses, articulates, and implements the basic principles of justice and right. The equal freedom norm that underlies, connects, and co-ordinates these basic principles can be seen most clearly through an examination of the requirements for a successful private nuisance action. The nature of and relationship between the principles is illustrated most clearly through an examination of the remedies that are available for a successful nuisance action. The criteria for granting an injunction rather than limiting the plaintiff to a remedy in damages draw on the principle of distributive justice as well as the principle of interactive (‘corrective’) justice, in an integrated manner that some justice theorists have erroneously declared cannot coherently be done. Elaboration of these claims requires a substantial amount of preliminary ground clearing, since there is widespread confusion and misunderstanding regarding the principles of justice - especially the principle of interactive justice - and the nature and proper scope of the private nuisance action. In part II, I attempt to clear up the confusions and misunderstandings regarding the principles of justice. In part III, I attempt to clarify the nature and proper scope of the private nuisance action as a distinct (intentional) tort, which is explicitly grounded on the equal freedom norm. Finally, in part IV, I affirm the status of the private nuisance action as a strict liability tort by clarifying the criteria for the granting of an injunction, and I explain and justify those criteria as a co-ordinated implementation of the principles of distributive and interactive justice.