Morality and Institutional Detail in the Law of Torts: Reflections on Goldberg’s and Zipursky’s Recognizing Wrongs

Law and Philosophy (1):1-37 (2021)
  Copy   BIBTEX


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.



    Upload a copy of this work     Papers currently archived: 91,998

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Redress and Reparations for Injurious Wrongs.Erin I. Kelly - 2021 - Law and Philosophy 41 (1):105-125.
Rights and Responsibility in the law of torts.John C. P. Goldberg & Benjamin C. Zipursky - 2012 - In Donal Nolan & Andrew Robertson (eds.), Rights and private law. Portland, Oregon: Hart.
in an Age of Mass Torts.Arthur Ripstein & Benjamin C. Zipursky - 2001 - In Gerald J. Postema (ed.), Philosophy and the Law of Torts. Cambridge University Press. pp. 214.
Public Wrongs and the Criminal Law.Ambrose Y. K. Lee - 2015 - Criminal Law and Philosophy 9 (1):155-170.
The law of torts.Benjamin C. Zipursky - 2012 - In Marmor Andrei (ed.), The Routledge Companion to Philosophy of Law. Routledge. pp. 261.
Liberal Morality and Socialist Morality.W. B. Gallie - 1949 - Philosophy 24 (91):318 - 334.
Institutions of law: an essay in legal theory.Neil MacCormick - 2007 - New York: Oxford University Press.
Ripstein on private wrongs and torts.Peter Vallentyne - 2018 - Jurisprudence 9 (3):589-596.


Added to PP

25 (#633,900)

6 months
4 (#792,011)

Historical graph of downloads
How can I increase my downloads?

Author Profiles

Tom Dougherty
University of North Carolina, Chapel Hill

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references