Recognizing Wrongs

"Recognizing Wrongs is about tort law, also commonly known as "personal injury law." The book's central thesis is that tort law fulfills a basic obligation that government owes to each of us: to provide law that defines and proscribes a special class of wrongs - wrongs that involve one person mistreating another - and to provide a means for victims of such wrongs to obtain redress from those who have wronged them. This book aims to recover the traditional understanding of tort law by helping readers to recognize what it is all about. It does so by offering a systematic statement of a theory now known in academic circles as "civil recourse theory." In providing a comprehensive statement of that theory, the book aims to unseat both the leading philosophical theory of tort law - corrective justice theory, as put forward by Jules Coleman, John Gardner, Arthur Ripstein, Ernest Weinrib, and others - as well as the economic approach favored by scholars such as Guido Calabresi and Richard Posner"--

Two preeminent legal scholars explain what tort law is all about and why it matters, and describe their own view of tort’s philosophical basis: civil recourse theory. Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly. Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

Tort law recognizes the many ways one person wrongs another. Arthur Ripstein brings coherence to torts’ diversity in a philosophically grounded, analytically powerful theory. He shows that all torts violate the basic moral idea that each person is in charge of his or her own person and property, and never in charge of another’s person or property.

Innovative theory surrounding the liberal demand for sympathetic resentment, which entails a recognition of the political equality of victims of injustice.

Non-instrumentalist private law theory has been dominated by an interpretivist methodology that seeks to understand the concepts, doctrines, and structures of the law in principled terms. This has resulted in the neglect of purely normative analysis and a failure to engage systematically with the methodologies of moral and political philosophy. Wrongs, Harms, and Compensation: Paying for our Mistakes departs from this approach, arguing instead that the justification of tort law is dependent on our underlying moral corrective duties. In this book, Adam Slavny develops a pluralistic account of these duties, which encompasses both wrongful and non-wrongful conduct, complicating the view that torts should be regarded as a coherent set of wrongs. He also places the practice of enforcing corrective duties in a broader context, arguing that it should not be isolated or immune to critiques based on distributive justice, and that our duties are in fact consistent with institutional arrangements other than tort law, including various types of compensation schemes. What emerges is neither a wholesale defence of or attack on tort law, but an insistence that its normative foundations are much more complex, diverse, and malleable than a focus on current legal practices would suggest.

Following the Second World War, liberal nation-states sought to address injustices of the past. Canada's government began to consider its own implication in various past wrongs, and in the late twentieth century it began to implement reparative justice initiatives for historically marginalized people. Yet despite this shift, there are more Indigenous and racialized people in Canadian prisons now than at any other time in history. Carmela Murdocca examines this disconnect between the political motivations for amending historical injustices and the vastly disproportionate reality of the penal system a troubling contradiction that is often ignored.

Contractarianism in some form has been at the center of recent debates in moral and political philosophy. Jean Hampton was one of the most gifted philosophers involved in these debates and provided both important criticisms of prominent contractarian theories plus powerful defenses and applications of the core ideas of contractarianism. In these essays, she brought her distinctive approach, animated by concern for the intrinsic worth of persons, to bear on topics such as guilt, punishment, self-respect, family relations, and the maintenance and justification of the state. Edited by Daniel Farnham, this collection is an essential contribution to understanding the problems and prospectus of contractarianism in moral, legal and political philosophy.