Benjamin Zipursky, ‘Civil Recourse and the Plurality of Wrongs: Why Torts are Different’

Abstract:
The project of depicting torts as legal wrongs invites the question of how the wrongs of tort law differ from other sorts of legal wrongs, both within private law and beyond. The wrongs of tort law are different from those of criminal law principally for two reasons: torts are, by their very nature, relational and injury-inclusive wrongs, while the wrongs of criminal law need not be either. That is because tort law is a law for the private redress of wrongs, while criminal law does not arise through the principle that those who have been wrongfully injured are entitled to redress the wrong; it is predicated on the need for the state to prohibit and punish wrongful conduct. The very argumentative strategy of defining torts as private wrongs raises the question of how torts differ from other private wrongs for which our system permits civil recourse. The article argues that the wrongs of tort law include a special kind of injury, for which our system provides not only recourse but also redress. Failure to appreciate the special nature of torts as wrongs has misdirected tort theorists and judges in a variety of ways, which we are now positioned to correct.

Zipursky, Benjamin, Civil Recourse and the Plurality of Wrongs: Why Torts are Different. New Zealand Law Review, Volume 2014, Number 1, May 2014, pp 145-169.

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