Civil Recourse or Civil Powers

Abstract

Civil recourse theory, as its name implies, sees private law as providing a means by which individuals may have recourse against those who have wronged them, albeit in a civilized manner.1 Of course, no one would deny that much of private law does in fact provide private individuals with a means of recourse, but civil recourse theorists take pride in the fact that their theory, unlike competing theories, sees the right to recourse as the focal point of private law.2 By contrast, law and economics scholars argue that the rules of tort law, for example, aim to regulate conduct by providing individuals the incentives to take appropriate levels of caution, where what counts as “appropriate” is whatever would maximize welfare.3 But they cannot explain why enforcement of these rules is left to private plaintiffs, who can choose to enforce or not as they please. Corrective justice theorists have a very different view of the aims of tort law, but a similar problem. For corrective justice theorists, tort law aims (very roughly speaking) to do justice among the private individuals to a suit rather than provide incentives for society at large.4 Wrongdoers have a so-called secondary duty to repair the harm caused by the breach of a primary duty, such as the duty to take due care not to harm others.5 But even if corrective justice theorists are correct that wrongdoers have such secondary duties, it is again not clear why the state would leave enforcement of those duties to the whims of private