Jason M. Solomon (University of Georgia Law School) has posted Equal Accountability Through Tort Law (Northwestern University Law Review, Vol. 103, 2009) on SSRN. Here is the abstract:
The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.
And from the paper:
Within this general framework, we can see it is plausible that the injured person is entitled to have the "reactive attitude of resentment," to use Peter Strawson's terms.116 The negligent actor has unilaterally changed the terms of social relations by elevating her liberty interest too far above the injured‟s security interest.
When you believe that you have been harmed by someone's carelessness, resentment is a "natural" or "rational" attitude to adopt towards that person. By "natural," I mean simply that it is a common reaction to being wronged in many cultures and societies, and it is consistent with the backwardlooking characteristic of the reactive emotions.117 There is also evidence from evolutionary biology that it is an adaptive trait, present in primates and that has been handed down.
And by "rational" I mean that the attitude is understandable or "makes sense" because there is a norm that has been violated, we accept that there is such a norm, and that the violation of said norm is a moral wrong such that the violator is to be blamed. 118 If he is to be blamed, then it would be rational for the object of the wrong to resent him.119 I do not mean by "rational" that the feeling is clearly the appropriate one to adopt (assuming such a choice possible) after a cost-benefit analysis. Rather, we might say that resentment towards a wrongdoer, after being harmed by that person or entity's wrongdoing, is rational in that it is an "apt feeling," as Allan Gibbard puts it.120
Another excerpt from a bit further on:
With Darwall's framework in mind, let's consider the role that acting against wrongdoers plays in a moral community. In acting against one who has wronged us, we say: “You can‟t do that to me.” In doing so, we affirm our moral worth, self-respect and dignity. The philosopher Jean Hampton describes the idea of a “moral injury”153 as “an affront to the victim‟s value or dignity.”154 The idea is that acting against the wrongdoer negates the affront. Where the wrong has “diminished”155 the value of the victim, the retributive response that Hampton discusses "is intended to indicate the value of the victim" and restores her to the status of equal.156
One who respects herself does not let another walk all over her. Being too hasty to forgive, or too reluctant to confront, allows the moral diminishment to remain intact. We instinctively warm to the idea of forgiveness as an appropriate and morally superior way of responding to one who has wronged us. But a serious strain in philosophical thought questions the moral superiority of forgiveness.157 The philosopher Jeffrie Murphy, for example, suggests three reasons -- self-respect, self-defense, and respect for the moral order -- why we ought not be so quick to forgive, and why some measure of resentment is good.158 We might also (and some have) frame these first two reasons as being about maintaining personal honor or individual dignity.
And:
So the state creates a system whereby victims are empowered, if they so choose, to bring claims that they have been wronged against another. And though the procedural mechanisms are not unique to tort law, note how well they fit the idea of someone calling to account one who has wronged her. It starts with filing a "complaint," and delivering the complaint to the alleged wrongdoer. The wrongdoer then provides an "answer," explaining why or what she has done does not constitute a wrong to the complainant. The victim herself is in charge of demonstrating that a wrong has occurred, and that the wrong is one for which the injurer ought to be liable to the victim.202
Highly recommended.
