Private Liability without Wrongdoing
University of Toronto Law Journal (forthcoming)
47 Pages Posted: 25 Oct 2021
Date Written: October 19, 2021
Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs don’t seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person may, for example, be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs don’t generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability.
Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce won’t be normatively consequential if the plaintiff’s moral permission to enforce her rights arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and what a plaintiff is permitted to do to enforce her rights. By reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.
Keywords: Private Law Theory, Non-Ideal Theory, Corrective Justice, Distributive Justice, Self-Defense
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