What is? Like the ordinary morality that it reflects, the common law contemplates many answers.28 Many of these answers, however, have a common core: the defendant’s moral responsibility for causing unjust damage to the plaintiff, in the sense of infringing some right against injury that the plaintiff holds. The idea of responsibility for unjust damage does not receive clean expression anywhere in the common law. It receives somewhat more transparent expression in many civil law jurisdictions, where the private law (including tort law) is largely codified in statute. So, for example, the most important tort law clause in the Italian Codice Civile, CC 2043, lays down that “[a]ny intentional or negligent act that causes unjust damage [danno ingiusto] to another person obliges the person who has committed the act to pay damages.”29 It is standardly supposed in Italian legal thought that a loss suffered by a plaintiff is compensable — that it counts as “damage” rather than mere “loss” — only if it infringes a right, or injures a protected interest, that she holds.30 There are similar clauses in other civil law codes.31 Thus, for example, section 823(1) of the Bürgerliches Gesetzbuch (BGB), the German Civil Code, lays down that “[a] person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.”32
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