Skip to main content

Advertisement

Log in

Redress and Reparations for Injurious Wrongs

  • Published:
Law and Philosophy Aims and scope Submit manuscript

Abstract

In Recognizing Wrongs (Cambridge, MA: Harvard Univ. Press, 2020), John C. P. Goldberg and Benjamin C. Zipursky develop and defend “civil recourse theory,” according to which torts are injurious wrongs that give rise to a claim of redress. My discussion extends beyond tort law to explore the ethics of reparations for historical injustice, in particular, regarding the case of Black Americans. I begin by relating the notion of wrongdoing that figures prominently in civil recourse theory to morality. Then I explore the idea that the relevant sort of wrongdoing is relational and injurious, and how this claim applies to historical injustice. Finally, I take up the idea that a redress claim is one a victim is entitled but not obligated to make in order to think about whether the discretionary nature of tort action is empowering to persons who have been wrongfully injured.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. See Oliver W. Holmes, “The Path of the Law,” Harvard Law Review 10 (8) (March 1897): pp. 457–478, and Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Yale Law Journal 85 (6) (April 1972): pp. 1089–1128.

  2. H. L. A. Hart emphasizes the importance of law as a choosing system. See “Legal Responsibility and Excuses,” Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), pp. 44–8, and “Punishment and the Elimination of Responsibility,” Punishment and Responsibility, pp. 181–2.

  3. Lon Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), pp. 33–41. While Fuller emphasizes a certain type of notice associated with the promulgation of authoritative codes, tort law, as primarily common law, must give “notice” in other ways. One way it may do so is by sticking close to positive morality.

  4. On the connection between blame and desert, see Strawson, P. F. “Freedom and Resentment,” Proceedings of the British Academy 48 (1960), section 6; reprinted in Strawson, Freedom and Resentment and Other Essays (London: Methuen, 1974). See also T. M. Scanlon, “Giving Desert its Due,” Philosophical Explorations 16 (2) (2013), p. 104, and T. M. Scanlon, Moral Dimenions: Permissibility, Meaning, Blame (Cambridge, MA: Harvard University Press, 2010), p. 188. See also the notion of “basic desert” developed by Derk Pereboom in Living without Free Will (Cambridge: Cambridge University Press, 2001).

  5. See Douglas Husak, “Holistic Retributivism,” California Law Review 88 (3) (2000): pp. 991–2000; Douglas Husak, "Retributivism in Extremis," Law and Philosophy 32 (1) (2013): pp. 3–31; and Michael S. Moore, “The Moral Worth of Retribution,” Responsibility, Character, and the Emotions: New Essays in Moral Psychology, ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1987).

  6. See Erin I. Kelly, The Limits of Blame: Rethinking Punishment and Responsibiltiy (Cambridge, MA: Harvard University Press, 2018), chapters one and six. On the use of the war on drugs to prosecute Black Americans, see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).

  7. This is a central theme of Kelly, The Limits of Blame.

  8. I will return to this theme in section 3.

  9. Cf. Stephen Darwall, “Justice and Retaliation,” Philosophical Papers 39 (3) (November 2010): pp. 335–39.

  10. Stephen Darwall analyzes this relationship to involve “biconditional” second-person accountability. See Stephen Darwall and Julian Darwall, “Civil Recourse as Mutual Accountability,” Florida State University Law Review 39 (1) (Fall 2011), especially pp. 19–27. See also Stephen Darwall, The Second Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press, 2006), chapters five and six.

  11. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 15–60.

  12. See, for example, discussion by Jules Coleman, “The Mixed Conception of Corrective Justice,” Iowa Law Review 77 (2) (January 1992): pp. 427–44.

  13. Rawls understands his theory of justice as procedural, in a sense connected with his appeal to a hypothetical contract. A particular distribution counts as just if it could have been the outcome of a fair procedure. A fair procedure is designed to be to the greatest advantage of those who are least well off. This requirement limits the range of actual distributions that could be considered just. See John Rawls, A Theory of Justice. rev. ed. (Cambridge, MA: Harvard University Press, 1999), pp. 74–77, 104, 118. By contrast, Nozick is interested in the actual history of transactions. An actual distribution with a history of uncorrected rights violations would not be just. Nozick endorses a minimal libertarian conception of “self-ownership” rights (freely to enter contracts and to transfer property). This means that a pattern of significant inequality might not be unjust, if it has been produced in a way that has not violated any person’s rights (so understood).

  14. See Erin I. Kelly, “The Historical Injustice Problem for Political Liberalism,” Ethics 128 (1) (October 2017): pp. 75–94.

  15. Nozick, Anarchy, State, and Utopia, pp. 152–3, 173, 230–1.

  16. In 2016, the median family wealth in the U.S. for whites was $171,000 and $17,600 for blacks. See, e.g., Trymaine Lee, “A Vast Wealth Gap, Driven by Segregation, Redlining, Evictions and Exclusion Separates Black and White America,” The New York Times Magazine (August 14, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/racial-wealth-gap.html.

  17. Thanks to John Goldberg for pressing me on these issues.

  18. Rawls, A Theory of Justice, p. 386. See also John Rawls, Political Liberalism, (New York: Columbia University Press, 1993), p. 203.

  19. See Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (New York: Simon and Schuster, 1963), chapter one, and discussion by Stephen Darwall, “Respect as Honor and as Accountability,” Honor, History, and Relationship: Essays in Second Personal Ethics II (Oxford: Oxford University Press, 2013), pp. 15–16.

  20. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995). On the importance of social recognition, see also Charles Taylor, Modern Social Imaginaries (Durham: Duke University Press, 2004); David Miller, On Nationality (Oxford: Oxford University Press, 1995); and Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame: University of Notre Dame Press, 1984). For empirical data on how minority group identification can serve to counter the harmful effects of prejudice, see Nyla R. Branscombe, Michael T. Schmitt, and Richard D. Harvey, “Perceiving Pervasive Discrimination Among Black Americans: Implications for Group Identification and Well-being,” Journal of Personality and Social Psychology 77 (1) (1999): 135–149.

  21. Darwall and Darwall, “Civil Recourse as Mutual Accountability,” p. 20. See also Darwall, “Justice and Retaliation,” and Stephen Darwall, “Respect as Honor and as Accountability,” pp. 11–29.

  22. Felicia Pratto, James Sidanius, Lisa M., Stallworth, and Bertram F. Malle, “Social Dominance Orientation: A Personality Variable Predicting Social and Political Attitudes,” Journal of Personality and Social Psychology 67 (4) (1994): pp. 741–763; Frank Asbrock, Chris G. Sibley, and John Duckitt, “Right-Wing Authoritarianism and Social Dominance Orientation and the Dimensions of Generalized Prejudice: A Longitudinal Test,” European Journal of Personality 24 (4) (2010): pp. 324–340; Victoria M. Esses, Scott Veenvliet, Gordon Hodson, and Ljiljana Mihic, “Justice, Morality, and the Dehumanization of Refugees,” Social Justice Research 21 (1) (2008): pp. 4–25, https://doi.org/10.1007/s11211-007-0058-4; Gordon Hodson and Kimberly Costello, “Interpersonal Disgust, Ideological Orientations, and Dehumanization as Predictors of Intergroup Attitudes,” Psychological Science 18 (8) (2007): pp. 691–698.

  23. Jean Hampton, “The Retributive Idea,” in Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (1998), Cambridge: Cambridge University Press, pp. 124–143. See also Jean Hampton, “Correcting Harms vs. Righting Wrongs: The Goal of Retribution,” UCLA Law Review 39 (1992): pp. 1659–1702.

  24. Darwall and Darwall, “Civil Recourse as Mutual Accountabiltiy,” p. 20.

  25. Darwall, The Second-Person Standpoint, chapter six.

  26. Darwall, “Respect as Honor and Accountability,” p. 17, and Darwall, The Second-Person Standpoint, chapters ten and eleven.

  27. Indeed, some retributivists would argue that criminal punishment should serve this function. A similar position could be taken in the domain of civil law.

  28. In the criminal domain, this encounter could be facilitated in practices of restorative justice. It is not well suited to the criminal trial and state-directed practice of criminal sentencing. On accountability through restorative justice, see Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and A Road to Repair (New York: The New Press, 2019), especially chapter three.

  29. William A. Darity and A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century (Chapel Hill: The University of North Carolina Press, 2020), pp. 256–7.

  30. See Darity and Mullen, From Here to Equality, pp. 207–36. See also Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (New York: W. W. Norton and Co., 2017), and Carol Anderson, White Rage: The Unspoken Truth of our Racial Divide (New York: Bloomsbury, 2016). For a fascinating discussion of the history of how race ideology has been used to rationalize racial subordination, see Lionel K. McPherson, “The Afterlife of Race: An Informed Philosophical Study,” forthcoming with Oxford University Press (2021).

  31. Ibid, p. 259.

  32. Ibid.

  33. Ibid, pp. 259–263.

  34. Ibid, p. 258.

  35. Darity and Mullen, From Here to Equality, p. 265.

  36. Ibid, p. 2.

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Erin I. Kelly.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

My gratitude to John Goldberg and an anonymous reviewer for Law and Philosophy for very helpful comments on an earlier draft.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Kelly, E.I. Redress and Reparations for Injurious Wrongs. Law and Philos 41, 105–125 (2022). https://doi.org/10.1007/s10982-021-09415-9

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10982-021-09415-9

Navigation