The ability to redress one’s wrongs has gone through four phases. In the premodern “personal” phase, an aggrieved party enjoyed unlimited power to exact revenge against a suspected offender who stood completely vulnerable to such aggression. In the ensuing “social” phase, the avenger’s response was loosely regulated by community customs and local tribunals, which provided partial protection to the party under attack. In the next “administrative” phase, a claimant’s recourse was strictly controlled and copiously administered by the state to curb abuses within the previous justice systems. In the final “process” phase, the state guaranteed that its own processes could not be used as a tool of oppression against the unjustly accused.
The obvious pattern in this progression is the incremental contraction of private recourse rights and corresponding expansion of public rights to private defense. The present paper — which will appear as a chapter in my forthcoming book “The Right to Civil Defense in Torts” — explains how tort law and due process shaped these developments. Contrary to one fashionable tort theory, tort law was not created to empower aggrieved parties to get redress from their wrongdoers. That power was and is primordial and perpetual. Rather, tort law arose in the “administrative” phase to hinder such efforts. It did this both by establishing a central grievance system that supplanted existing avenues of recourse and by blocking the remaining road to recovery with a host of substantive, procedural, and evidentiary obstacles. Thus, when the concept of due process emerged in the final phase, it did not impel the recognition of a right to civil recourse, as the trending view suggests. Instead, it tempered that right with a superior right of civil defense. Though originally cast as a general prohibition against arbitrary government action, this due process protection specifically encompasses the state’s assistance of unsubstantiated legal proceedings, including the liberty-infringing actions of tort litigation.
Calnan, Alan, Due Process and Civil Defense (Chapter 3) (August 15, 2012). The Right to Civil Defense in Torts, Southwestern Law School, 2012.