As If it Had Never Happened

Abstract

Law students are usually told that the purpose of damages is to make it as if a wrong had never happened. Although we torts professors are good at explaining this idea to our students, it is the source of much academic perplexity. Money cannot really make serious losses go away, and it seems a cruel joke to say that money can make an injured person "whole." Worse still, if it could, it would seem that injuring someone and then paying them was just as good as not injuring them at all. My aim in this paper is to redeem the commonsense idea that damages really do make it as if a wrong had never happened. I do so by focusing on the normative structure of private rights to person and property. I first show how such rights are best understood in terms of an entitlement to have certain means subject to your choice. I then go on to argue that although wrongdoing can cause a factual loss, it does not change what a person has a right to. I then show how money can be understood as restoring such means. I close with some broader reflections about the relation between law and morality.