Abstract
In their brilliant and thought-provoking book Recognizing Wrongs, John Goldberg and Benjamin Zipursky offer a vindicatory interpretation of the law of torts. As part of this, they offer a justification for what they call the “principle of civil recourse.” This is the principle that “a person who enjoys a certain kind of legal right, and whose right has been violated by another, is entitled to enlist the state’s aid in enforcing that right, or to make demands in response to its violation, as against the person who has violated it.” To defend the principle of civil recourse, Goldberg and Zipursky appeal to three values: equality, fairness, and individual sovereignty. In this essay, we make two critical points. First, we argue that Goldberg’s and Zipursky’s defense errs by omitting a justificatory appeal to our moral rights and duties as part of the normative foundation of the tort law. Second, we argue that Goldberg’s and Zipursky’s arguments do not explain certain institutional features of the tort law, including the fact that legal duties of redress emerge only at the conclusion of court cases and the fact that lawsuits are opted int.o by tort victims who must initiate these actions themselves. To retain what is philosophically valuable in Goldberg’s and Zipursky’s impressive defense of the principle of civil recourse, we conclude with a strategic suggestion on their behalf: they should split their defense of the principle of civil recourse into two parts, with the first part justifying the existence of some institution of civil recourse or other and the second part justifying specific details that this institution should have.
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Notes
In addition, Bella decided not to charge Paula for the night’s stay (which presumably did not meet the inn’s aspirations for customers’ experiences). Meanwhile, Paula’s medical insurance covered the costs of hospitalization and her paralysis did not impede her career as a journalist.
Goldberg’s and Zipursky’s full view is nuanced as they hold that slightly different values form the normative foundation of civil recourse in different areas of law. With respect to property law and contract law, Goldberg and Zipursky also claim that the values of equality and fairness are part of the justification for citizens having legal opportunities to seek civil recourse. But for these areas of law, the third value they invoke is not individual sovereignty but “independence” which concerns one’s “capacity to make and execute plans and projects” (p. 135).
This setback is not always constituted by a material loss. For example, in a case of harmless property trespass, a victim may not suffer any loss, but still there is a setback to their interest in controlling the use of their property (p. 141).
There remain a limited class of exceptions, e.g. the use of coercive force in self-defense against unjustified aggression.
An anonymous reviewer has raised the question of whether this assists Goldberg’s and Zipursky’s main argument all that much in light of the following objection. Suppose for the sake of argument that the state permitted citizens to use coercive force to prevent and respond to others committing torts against them. There would be many individuals who would nonetheless be unable, at reasonable cost, to avail themselves of this opportunity, because they lack the power to compel redress or would expose themselves to risks of harm when attempting to compel it. The objection goes that this group would not be significantly disempowered by a state prohibition on the use of coercive force, since they could not avail themselves of such force to compel redress, even if doing so were legally permissible. However, while such individuals would not be rendered any worse-off by a prohibition on the use of force compared to the state of nature baseline, Goldberg’s and Zipursky’s main point retains its force: it is in itself unacceptable that these individuals have no viable legal avenue of recourse when subjected to treatment that the law recognizes as wrongful injury– whether or not this also makes them worse off compared to the state of nature baseline.
Elsewhere, Goldberg and Zipursky do appeal to moral rights to explain legal rights of action. Critiquing Stephen Perry’s view that a “moral duty of repair” explains these rights, Goldberg and Zipursky argue “There is no need to rely on a putative moral duty of repair to explain why tort victims enjoy a legal right of action against tortfeasors. In tort, the defendant’s responsibility for having brought about the injury through tortious conduct generates a moral right in the plaintiff to demand compensation of the defendant. This right stems from having been wronged…The law of torts renders concrete, enforceable, and legal the right of a victim to demand compensation for having been wronged.” John Goldberg and Benjamin Zipursky, “Tort Law and Responsibility,” in John Oberdiek (ed.) Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014), p. 31, critiquing Stephen Perry, “The Moral Foundations of Tort Law,” Iowa Law Review 77(2) (1992): pp. 449–514.
As Zipursky notes, legal “remedies include, for example, negative injunctions on the use of land in property torts, injunctions to expunge public records in libel and privacy cases, injunctions to abate toxic materials in product liability, and reformation and rescissions in misrepresentation cases.” When a legal tort is also a moral wrong, many of these remedies would be morally required (though not yet legally required) by the tortfeasor upon the commission of the tort. Benjamin Zipursky, “Civil Recourse, Not Corrective Justice,” Georgetown Law Journal 91(3) (2003): pp. 695–756, p. 711.
Stephen Darwall and Julian Darwall, “Civil Recourse as Mutual Accountability,” Florida State University Law Review 39(1) (2011): pp. 17–41, p. 19.
So it is consistent with what we say that no moral wrong is committed by certain strict product liability tortfeasors. A regime of strict product liability allows that an action can be brought by a plaintiff against a manufacturer in relation to a defective product even if the seller has “exercised all possible care in the preparation and sale of [their] product].” Restatement (Second) of Torts §402A(2)(a) (American Law Institute, 1965), as quoted with emphasis added in Goldberg & Zipursky, Recognizing Wrongs, (p. 192). We note that on Goldberg’s and Zipursky’s view, there is an indirect connection between morality and tort law, insofar as they argue that common law judges appeal to their society’s positive morality when adjudicating cases (pp. 360–363). However, there is no guarantee that a society’s positive morality tracks the moral truth and in light of actual society’s checkered histories it seems inevitable that often it has not tracked it. Legal recognition of the aforementioned torts committed against slaveholders would be a case in point.
An anonymous reviewer has brought to our attention that if these moral wrongs do not in fact have sufficiently similar counterpart torts in the law, then this may provide a rationale for adding suitable torts to the law. This brings us to the question of whether it is possible to justify the law’s current position on which torts exist − a question that is separate from the question of what justifies the principle of civil recourse. This complex question is beyond the scope of this article. To answer it, it would be necessary to examine not only substantive issues concerning which moral rights and duties are apt for legal recognition as torts, but also procedural issues concerning the common-law adjudication that settles which wrongs are recognized as torts. Regarding the latter, Goldberg and Zipursky claim that judges appropriately recognize torts by reflecting on a variety of factors including legal precedent and their society’s positive morality. Since both legal precedent and a society’s positive morality can err (e.g. by recognizing torts committed against enslavers), there can be a tension between these substantive and procedural issues (pp. 251–254).
Darwall and Darwall, “Civil Recourse as Mutual Accountability,” pp. 17–41.
While we talk in terms of citizens’ demands against the state to follow Goldberg’s and Zipursky’s way of framing the issue, we leave open the possibility that ultimately these should be understood as demands that citizens make against each other with respect to their shared institutions.
If the costs of Bella’s voluntary atonement play a significant role in the calculus of any disparities, we can suppose that, given Bella’s injuries, the acts of procuring and signing the greeting card caused Bella pain that was more intense than any pain suffered by Paula.
Thanks to an anonymous reviewer for pointing out the option of appealing to this distributive conception of fairness. The reviewer also noted that it is much less clear that distributive fairness plays any significant role in justifying tort, since this kind of unfairness is not specific to tort victims. This would create a worry that the notion of fairness appealed to is too broad.
While this strikes us as the most promising way for Goldberg and Zipursky to repair the fairness argument, it may not come without cost. If the fairness argument appeals to this non-comparative conception of fairness, then the argument faces an important challenge posed by an anonymous reviewer: once we accept that the wrong in question generates a moral duty to provide compensation, what is added by pointing out that there is an unfairness between the tortfeasor and the uncompensated victim? The worry is that the case for the principle of civil recourse could be grounded directly in terms of the moral duty, without positing the value of fairness as an explanatory intermediary.
For other examples of torts that do not correspond to moral wrongs, consider torts that are (or are becoming) “extinct” in the sense that they once formed part of the common law, but no longer do so. See Kyle Graham, “Why Torts Die,” Florida State University Law Review 35(2) (2008): pp. 359–432.
Darwall and Darwall, “Civil Recourse as Mutual Accountability,” p. 17. Darwall has developed and defended this theory across an impressive corpus, of which the centerpiece is Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge MA: Harvard University Press, 2006).
Darwall and Darwall, “Civil Recourse as Mutual Accountability,” p. 37.
We do not mean to imply that mutual accountability is the only dimension to social equality. For example, elsewhere in political philosophy, philosophers have appealed to social equality to provide accounts of justice (see Elizabeth Anderson, “What is the Point of Equality?” Ethics 109(2) (1999): pp. 287–337) and democracy (see Niko Kolodny, “Rule over None II: Social Equality and the Justification of Democracy,” Philosophy and Public Affairs 42(4) (2014): pp. 287–336; Daniel Viehoff “Democratic Equality and Political Authority,” Philosophy and Public Affairs 42(4): pp. 337–375). Nor do we mean to imply that with respect to tort law, there are no other ways that individuals can fail to stand in valuable relations of social equality. For example, citizens would stand in disvaluable relations of social inequality if their society contained a caste-based hierarchy that bestowed different tort law rights on members of different castes.
Thanks to an anonymous reviewer for suggesting this way of pressing the objection.
See also John Goldberg, “Taking Responsibility Personally: On John Gardner’s From Personal Life to Private Law,” Journal of Tort Law, forthcoming.
In offering the Normative Foundation Claim as a view about the normative justification of the principle of civil recourse, we are not proposing that this view should play a role in our interpretation of tort law. As such, we do not mean to endorse what Zipursky calls a “functionalist” account of tort law that “purports to explain tort law by setting forth what tort law accomplishes: the enforcement of moral duties of repair.” Zipursky argues that this functionalist account explains “by the law by reference to the functions it serves, without actually laying bare the concepts that are deployed within the law.” The failure to explicate these concepts is problematic, Zipursky, argues, because “at the interpretive level, we want a theory that tells us what the law is, and a purely functionalist account cannot do this.” Zipursky, “Civil Recourse Not Corrective Justice,” pp. 724, 726.
In addition, if Paula lacks the wherewithal or motivation to bring suit herself, why not allow private third parties to sue Bella for damages to Paula on Paula’s behalf?
Thanks to John Goldberg and Amy Sepinwall for drawing our attention to the important ways in which private actions enable victims to exercise these valuable types of control over legal proceedings.
Amy Sepinwall has pointed out to us that there are also legal alternatives that would preserve the distinctive complainant-initiated, private law approach of tort law: a state could subsidize or fully fund legal representation for low-income tort victims to initiate their own rights of action.
Zipursky, “Civil Recourse, Not Corrective Justice,” p. 702, citing Ernest Weinrib, “Understanding Tort Law,” Valparaiso University Law Review 23(3) (1989): pp. 485–526, pp. 503-506, and Jules Coleman, Risks and Wrongs (1992), pp. 380–382.
That opt out systems are, in principle, just as compatible with individual sovereignty as opt in systems is a familiar lesson of the literature on nudges and ‘libertarian paternalism’. See, for instance, Cass Sunstein and Richard Thaler, “Libertarian Paternalism is not an Oxymoron,” University of Chicago Law Review 70(4) (2003): pp. 1159–1202.
Though, as we have suggested, an opt-out system might mitigate the latter problem by giving individuals a private right of action as a ‘back-up’, in cases where the state does not itself initiate a legal action on their behalf.
John Goldberg, Anthony Sebok, and Benjamin Zipursky, Tort Law: Responsibilities and Redress (New York: Wolters Kluwer, 2016).
Reference
John Goldberg and Benjamin Zipursky, Recognizing Wrongs (Cambridge MA: Belknap Harvard, 2020)
Acknowledgements
For helpful comments and discussions, we would like to thank Nico Cornell, Amy Sepinwall, and audience members at the “Authors Meet Critics” panel on Recognizing Wrongs at the 2021 Eastern Division Conference of the American Philosophical Association. We are especially grateful to John Goldberg, Ben Zipursky, and an anonymous reviewer for detailed written comments on an earlier draft of this article.
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Dougherty, T., Frick, J. Morality and Institutional Detail in the Law of Torts: Reflections on Goldberg’s and Zipursky’s Recognizing Wrongs. Law and Philos 41, 1–37 (2022). https://doi.org/10.1007/s10982-021-09417-7
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DOI: https://doi.org/10.1007/s10982-021-09417-7