Is Tort a Remedial Institution?

In the past 30 years, philosophers of tort have performed invaluable work in restoring the concept of a “wrong” to prominence in tort scholarship, and in building a persuasive case that no adequate account of tort can replace the idea of a “wrong” with the idea of a “cost”. The structure of tort adjudication, which pits an injured victim against the party allegedly responsible for injuring her, is powerfully explained and justified by the thesis that the plaintiff has a claim for redress against the defendant when and because the defendant has wronged the plaintiff. The competing claim that tort adjudication is a forward looking instrument for minimizing the combined costs of paying for and preventing accidental harms is much more forced and difficult to sustain. Less persuasively, however, modern philosophers of tort have spelled out the general claim that tort is a law of wrongs – and their reciprocal, rights – in the more particular thesis that tort is about the rectification of wrongs. Influential legal philosophers have argued, for example, that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses”. Other theorists, marching under the banner of “civil recourse” have argued that the normative essence of tort law lies in the plaintiff’s right to demand redress from the defendant. The claim that remedial responsibilities are the core of tort law ought to give us pause. Calling responsibilities of redress the heart of tort law makes tort a remedial institution, an institution whose raison d’etre is repair. Yet in tort law itself remedial responsibilities to repair wrongful losses arise out of failures to discharge antecedent responsibilities not to inflict wrongful injury in the first instance. This paper argues that remedialist accounts of tort are right to place the concept of a wrong – and its reciprocal, a right – at the heart of tort law, but wrong to give those concepts an essentially remedial interpretation. Remedial responsibilities in tort are subordinate, not fundamental. They are logically subordinate because they are conditioned on and arise out of antecedent wrongs. These wrongs are not themselves corrective injustices, but failures to respect rights. Remedial responsibilities are normatively subordinate because the reason why tortfeasors are obligated to undo the harms wrought by their torts is that they have failed to discharge their primary responsibilities to avoid committing those torts in the first place. Breaching those responsibilities leaves them undischarged, and precludes full compliance with those responsibilities. Repairing harm wrongly done is a second-best way of discharging an obligation not to do harm wrongly in the first place. Remedialist theories thus put the cart before the horse. Rights and remedies form a unity but it is a unity in which rights govern remedies: the role of remedies is to enforce and restore rights. We need to reorient tort theory in a way which does justice to remedialist insights about the centrality of rights and wrongs to tort law, but which places primary rights and responsibilities at the center of the subject.