CIVIL RECOURSE OR CIVIL POWERS?
It is my goal here to raise serious doubts about civil recourse theory’s ability to explain private law generally, and contract law in particular. However much we can distinguish between civil recourse theory and corrective justice theory, I argue that both suffer similar shortcomings when offered as explanations of contract law. Both theories, at least as commonly understood, see private law as a response (of some sort) to wrongdoing, but contract law is for the most part not concerned with wrongdoing. With some effort, both theories may be made to fit the structure of contract law to a certain degree, but only when they are so stripped of normative content as to be largely structural. In short, if civil recourse theory is understood just to be the view that the private law empowers plaintiffs to bring claims, then it is certainly true. But if it goes further and argues that the empowerment is based on a prelegal right to respond to wrongdoing, then it cannot explain our modern contract law, however well it may explain tort law. Moreover, I argue that this result is inevitable because contract law is a matter of power-conferring rules rather than duty imposing rules, and civil recourse theory is not equipped to explain areas of law that are designed to enable rather than admonish.
CIVIL RECOURSE AS MUTUAL ACCOUNTABILITY
Stephen Darwall, Julian Darwall
In The Second-Person Standpoint (SPS) and a number of papers since, I have attempted to work out a theory of moral obligations as involving mutual accountability between equals, where the latter, I argue, is irreducibly second personal, since it entails an equal authority we have to address claims and demands to one another and ourselves. As many writers have pointed out, moral obligations concern the part of morality that is modeled conceptually on legal, or as Sidgwick called them, “quasi-jural,” concepts of responsibility and authoritative demands and claims. What we are morally obligated to do is not just what morality recommends or what there is good, weighty, or perhaps even conclusive reason to do from the moral point of view. It is what morality requires. It is what is legitimately demanded of us as moral agents or persons, just as legal obligations concern what the law demands of citizens subject to it. Illegal and wrongful actions are violations of what the law and the moral law, respectively, mandate or require.
TORTS AND OTHER WRONGS
It is hard to think of any contemporary writers who have done more than John Goldberg and Ben Zipursky to reassert and reinvigorate what might be called the classical interpretation of the common law of torts. I, for one, am greatly in their debt. They have taught me a great deal, not only about torts but also about how to combine legal argument felicitously with philosophical insight and historical scholarship. Like them, and partly because of them, I believe that the classical interpretation is the correct one. Other familiar ways of explaining what is going on in the common law of torts, while often illuminating in their own ways, are parasitic. They rely on the classical interpretation, often surreptitiously, for their appeal or even their intelligibility.
THE TAXONOMY OF CIVIL RECOURSE
Andrew S. Gold
Tort law. As its applications have spread, and as its adherents have grown in number, this is no longer true. Civil recourse theory now incorporates several distinct approaches to private law topics, and some of these approaches diverge in important respects. As it has developed, civil recourse theory has become a collection of theories.
TORT LAW AT THE FOUNDING
John C.P. Goldberg
In his influential History of American Law, Lawrence Friedman suggests that tort first emerged as an important body of law in the late Nineteenth Century. Before then, Friedman tells us, tort law was “totally insignificant.” Implicit in his assessment is a judgment that a body of law is significant only insofar as it addresses a largescale social problem as such. Thus for Friedman tort became significant when it was first called on to function as a compensation system; that is, as a governmental response (enfeebled by then-predominant commitments to laissez-faire individualism) to the “epidemic” of accidents brought on by the industrial revolution.
CORRECTIVE JUSTICE FOR CIVIL RECOURSE THEORISTS
The central claim of civil recourse theory is undeniably true: tort is a system of civil recourse. To say that tort is civil is to say that it is peaceful rather than violent and that it is part of private law not public law. To say that tort provides recourse is to say that it allows plaintiffs to seek remedies from defendants. Whatever else one might think about tort, it is a peaceful means for private plaintiffs to seek remedies from defendants. Any theory of tort must acknowledge this fact, but no theory need treat it as important, and most do not.
WHY THERE IS NO DUTY TO PAY DAMAGES: POWERS, DUTIES, AND PRIVATE LAW
Nathan B. Oman
This Article was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that a careful analysis of the doctrines surrounding pleading, payment of damages, accord and satisfaction, and judgments reveals that our law gives plaintiffs the power to extract wealth from defendants but does not impose duties on defendants to compensate those that they have wronged. The structure of my argument is borrowed from a much older exchange between Oliver Wendell Holmes, Jr., who thought that contract law imposed a duty to perform or pay damages, and Frederick Pollock, who denied that the payment of damages was part of the duty to keep a contract. I side with Pollock against Holmes and think that the Englishman’s argument provides a useful model in the debate between corrective justice and civil recourse.
CIVIL RECOURSE AND SEPARATION OF WRONGS AND REMEDIES
Although Ben has discussed my work in print before, this is the first occasion I have had to return the favor by discussing his. We have been discussing philosophy for more than forty years, so my remarks are, at least in that sense, long overdue. John, too, has written about my work, both with Ben and on his own, and we have had many conversations about our respective work, most of them consisting of my insisting that we don’t disagree, and John’s attempting to articulate the sense in which we do. This, too, is an overdue opportunity for me to return the favor.
WHAT IS WRONG ABOUT WRONGDOING?
Anthony J. Sebok
At various times in their work, Goldberg and Zipursky invoke Blackstone, or a Blackstonian conception of private law, to support their argument that torts are best understood as wrongs. The view held by Goldberg and Zipursky, which I generally support, is complex, but this sentence near the end of their article Torts as Wrongs captures the Blackstonian essence of their theory: “[T]he idea of civil recourse . . . is a political commitment to the following effect: Individuals who are able to prove that someone has treated them in a manner that the legal system counts as a relational, injurious wrong shall have the authority to hold the wrongdoer accountable to him.” Later they say that “[i]t is no accident that seminal figures in our constitutional tradition, including Coke, Locke, and Blackstone, deemed individuals to enjoy a right of recourse against those who wronged them and deemed governments to be obligated to provide an avenue by which to exercise this right.” Goldberg and Zipursky’s invocation of Blackstone is not merely to draw support for their theory from a certain, historically grounded constitutional tradition; rather, as in their earlier work, Goldberg and Zipursky rely on Blackstone to support their interpretation of the analytic structure of tort law as a common law practice.
INTERPRETING TORT LAW
In their writings on civil recourse, John Goldberg and Benjamin Zipursky present a fresh and carefully reasoned interpretation of tort law.1 Tort law, they maintain, is a response to wrongs rather than losses. It offers victims of wrongdoing a private right of recourse against those responsible for the wrongs done to them, on account of those wrongs.
This is an attractive interpretive theory. It has the advantage of pairing tort law with the intuitively and linguistically related idea of wrongdoing. It also explains a wide variety of tort rules and provides a worthy rival to theories based on corrective justice. Ultimately, however, it does not justify tort law.
CIVIL RECOURSE AS SOCIAL EQUALITY
Jason M. Solomon
In the past decade, civil recourse theory has emerged as an important new way of thinking about tort law as individual justice. Like corrective justice, civil recourse sees tort law as about deontological concepts such as right and wrong, in contrast to utilitarian accounts that focus on maximizing social welfare. This Symposium is a testament to the centrality of civil recourse to contemporary debates in tort theory, and private-law theory more broadly.
SUBSTANTIVE STANDING, CIVIL RECOURSE, AND CORRECTIVE JUSTICE
Benjamin C. Zipursky
A critical issue in trying to clarify and solidify civil recourse theory is grasping the nature of the right of action against a tortfeasor and its relation to the right that the tortfeasor allegedly violated. With this issue in mind—and considering the broader goal of revisiting civil recourse theory from the ground up—it may be illuminating to examine the set of problems that led me to put forward civil recourse theory as an alternative basis for a general theory of tort law. That is provided in Part I, below, in a form that is more autobiographical than is customary.
CIVIL RECOURSE REVISITED
John C.P. Goldberg, Benjamin C. Zipursky
We are delighted and daunted by the depth of the articles that The Florida State University Law Review’s Symposium on Civil Recourse Theory has generated. Happily for us, many offer substantial new contributions to civil recourse theory. But our friends and commentators also have not shied away from critique, nor should they have. Either way, we have learned a great deal. Either way, we feel the ball has been advanced. And either way, we are inclined to respond, if only briefly.