31 Pages Posted: 20 Jun 2012
Date Written: 2011
In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil recourse seems like a form of retaliation or vengeance, and it seems unlikely that this is an appropriate part of a modern liberal state.
In prior work, I explained how the idea of equal accountability was an attractive moral norm and conceptual foundation for the right to recourse. This paper explores whether there are conceptions of equality that might support the right to recourse as a matter of political theory. Specifically, I argue that the right to recourse can be justified by drawing on two related notions of equality — a distributive one and a relational, or social, one.
I argue that these two conceptions of equality relate in the following way. The right to hold accountable those who have wronged you is a good subject to principles of distributive justice. And this good is something that the state provides to help constitute a community that aspires to social equality — where individuals relate to one another as equals. My task here is to explain what I mean in drawing on these two conceptions of equality, and how they relate to civil justice.
Keywords: civil justice, tort law, equality, civil recourse
Suggested Citation: Suggested Citation
Solomon, Jason M., Civil Recourse as Social Equality (2011). Florida State University Law Review, Vol. 39, No. 1, 2011; William & Mary Law School Research Paper No. 09-218. Available at SSRN: https://ssrn.com/abstract=2088277