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41 Law & Phil. 1 (2022)

handle is hein.journals/lwphil41 and id is 1 raw text is: Law and Philosophy (2022) 41: 1-37 © The Author(s), under exclusive licence to Springer Nanre B.V. 2021 https://doi.org/10.1007/s10982-021-09417-7 TOM DOUGHERTY ,JOHANN FRICK MORALITY AND INSTITUTIONAL DETAIL IN THE LAW OF TORTS: REFLECTIONS ON GOLDBERG'S AND ZIPURSKY'S RECOGNIZING WRONGS (Accepted 26 June 2021) ABSTRACT. In their brilliant and thought-provoking book Recognizing Wrongs, John Goldberg and Benjamin Zipursky offer a vindicatory interpretation of the law of torts. As part of this, they offer a justification for what they call the principle of civil recourse. This is the principle that a person who enjoys a certain kind of legal right, and whose right has been violated by another, is entitled to enlist the state's aid in enforcing that right, or to make demands in response to its violation, as against the person who has violated it. To defend the principle of civil re- course, Goldberg and Zipursky appeal to three values: equality, fairness, and individual sovereignty. In this essay, we make two critical points. First, we argue that Goldberg's and Zipursky's defense errs by omitting a justificatory appeal to our moral rights and duties as part of the normative foundation of the tort law. Second, we argue that Goldberg's and Zipursky's arguments do not explain certain institutional features of the tort law, including the fact that legal duties of redress emerge only at the conclusion of court cases and the fact that lawsuits are opted int.o by tort victims who must initiate these actions themselves. To retain what is philosophically valuable in Goldberg's and Zipursky's impressive defense of the principle of civil recourse, we conclude with a strategic suggestion on their behalf: they should split their defense of the principle of civil recourse into two parts, with the first part justifying the existence of some institution of civil recourse or other and the second part justifying specific details that this institution should have. I. INTRODUCTION In their brilliant and thought-provoking book Recognizing Wrongs, John Goldberg and Benjamin Zipursky set out to defend a view of torts as wrongs from influential revisionist challenges (Goldberg and Zipursky, 2020). According to their opponents from the so-called law and economics school, tort law should be understood as consisting of

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