Affirmative Duties of Care in the Common Law

This article addresses the common law's resistance to the imposition of affirmative duties to protect or aid others. The central thesis of the paper is that the common law does not have a unitary theory to explain and justify its approach to affirmative duties, but draws from multiple and sometimes conflicting theoretical viewpoints (though liberalism is fairly prevalent). Derived from that thesis is the secondary thesis that the existing classes of affirmative duty are not stable and fixed, but rest on rationalisations that can be displaced by a variety of countervailing considerations derived from the general reasoning process in tort law, unconnected to any distinction between affirmative and negative obligations.