Abstract
What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil recourse conception has significant justificatory advantages over both corrective justice and instrumental accounts. Even under these conditions, however, it remains difficult to explain within the confines of civil recourse theory why enforcement of tort law’s primary norms should remain in the hands of the victim. I suggest a possible explanation, but it requires us to jettison the claim that the wrongs of tort law are genuine wrongs.
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Notes
John Rawls, Theory of Justice (Cambridge: Harvard University Press, revised ed. 1999), pp. 109–112.
Jeremy Waldron, ‘Legislation, Authority, and Voting’, Georgetown Law Review 84 (1996): 2197–99.
The torts of trespass, nuisance, defamation, and battery are also unforgiving in significant respects (190). See also John C. P. Goldberg & Benjamin C. Zipursky, ‘The Strict Liability in Fault and the Fault in Strict Liability’, Fordham Law Review 85 (2016): 748–754; John Goldberg, ‘Inexcusable Wrongs’, California Law Review 103 (2015): 467.
Ernest J. Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995); Arthur Ripstein, Private Wrongs (Cambridge: Harvard University Press, 2016).
Ripstein, Private Wrongs, pp. 271–72. Other versions of corrective justice theory revolve around the more minimal claim that a duty of repair falls out of the breach of a primary obligation. See, e.g. John Gardner, Torts and Other Wrongs (Oxford: Oxford University Press, 2019), pp. 60–61. If this is all that corrective justice entails, then it is an open question to what extent and how the state should enforce such duties of repair. See ibid pp. 85–87 (arguing that the question whether the state should recognize a duty to repair is a separate one from the question whether there exists a wrong calling for repair in the first place).
Ripstein, Private Wrongs, p. 290.
Arthur Ripstein, ‘Authority and Coercion’, Philosophy & Public Affairs 32 (2004): 27; Weinrib, The Idea of Private Law, p. 107 (“Since the vindication of right includes the prevention or reversal of violations of right, the freedom of all is immediately joined with a reciprocal universal coercion.”); Ernest J. Weinrib, Corrective Justice (Oxford: Oxford University Press, 2012), p. 111 (“a claim of right implies a judicial role in interpreting and enforcing the claim”).
Ripstein, Private Wrongs, p. 56.
See, e.g. Dan B. Dobbs, Robert E. Keeton, and David G. Owen, Prosser and Keeton on the Law of Torts (West Group, 5th ed. 1984), p. 125 (“The privilege to act in self-defense arises not only where there is a real danger, but also where there is a reasonable belief that it exists.”); State v. Howard, 14 Kan. 173, 174–75 (1875) (holding that a defendant only needs to reasonably apprehend imminent danger even if in fact there was no such danger); People v. Minifie, 920 P.2d 1337, 1339–40 (Cal. 1996) (same).
See, e.g. Kaila Draper, ‘Defense’, Philosophical Studies 145 (2009): 74 (arguing that a police officer’s reasonable but mistaken belief that he is under attack doesn’t justify his action of shooting his imagined attacker).
See Benjamin C. Zipursky, ‘Self-Defense, Domination, and the Social Contract’, University of Pittsburgh Law Review 57 (1996): 608 (arguing that false but a reasonable belief that defensive force is, as a matter of fact, immediately necessary can justify not merely excuse the use of defensive force because it “harmonize[s] a desirable degree of personal security against purported self-defenders with a desirable degree of personal security against original assailants”).
I defend this claim more thoroughly in Rebecca Stone, Private Liability without Wrongdoing (unpublished manuscript).
Jeff McMahan, ‘Proportionality and Necessity in Jus in Bello’, in Seth Lazar and Helen Frowe (eds.) The Oxford Handbook of Ethics of War (Oxford: Oxford University Press, 2016), pp. 418–439.
See Stone, Private Liability without Wrongdoing (pursuing a strategy along these lines).
See ibid; Rebecca Stone, Who Has the Power to Enforce Private Rights? (unpublished manuscript).
Moral rights, on my conception, are just rights that instantiate duties of justice. One who infringes another’s moral right isn’t necessarily particularly culpable or blameworthy. For more on the thin notion of relational wrongdoing that Goldberg and Zipursky deploy, see Goldberg, ‘Inexcusable Wrongs’: 501–505; John C.P. Goldberg and Benjamin C. Zipursky, ‘Tort Law and Moral Luck’, Cornell Law Rev. 92 (2007): 1149–1163.
I’m grateful to John Goldberg, Felipe Jiménez, Jon Quong, Ben Zipursky, and an anonymous referee for helpful comments and discussions.
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Stone, R. The Circumstances of Civil Recourse. Law and Philos 41, 39–62 (2022). https://doi.org/10.1007/s10982-021-09411-z
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DOI: https://doi.org/10.1007/s10982-021-09411-z