Civil Recourse Theory

Abstract

This chapter examines civil recourse theory. The phrase “civil recourse theory” has developed two connotations, suggesting: (1) a structural theory of the normative underpinnings of private law liability placing primary emphasis on a plaintiff’s right of redress and the role of the state in affording plaintiffs the power to exact damages from those who have violated the plaintiff’s legal rights; and (2) a distinctive, overarching tort theory that emphasizes a plaintiff’s right of redress while simultaneously emphasizing relational duty in negligence law and torts as legal wrongs. The chapter identifies several other views developed in connection with civil recourse theory but meant to stand apart from it. The thesis that negligence law’s duty of care is relational is among them; so too is the thesis that tort law consists of specifications of legal wrongs, that these wrongs are defined in relatively strict manner, and that plaintiffs must have an injury to prevail on a tort claim. Deploying the narrower conception of civil recourse theory, the chapter defends the principle of civil recourse as a matter of political morality and depicts the place of private rights of action in the basic structure of a just liberal democracy.