Louis Hensler, ‘Civil Reconciliation Tort Theory: Making Torts Private Again’

ABSTRACT
This article is largely a reaction to civil recourse tort theory and an attempt to recapture a tort theory that is more thoroughly private. The competing civil recourse and corrective justice conceptions of tort law as private are near the heart of this article, hence its title. While corrective justice and civil recourse theories both see tort law as essentially private, civil recourse theorists argue that tort is private, at least in part, because it is victim-initiated. An important thesis of this article is that tort is victim-initiated because it is private, not vice-versa. The Aristotelian conception of corrective justice suggests that corrective justice, unlike distributive justice, is an essentially private affair, and, indeed, perhaps the very private nature of tort law provides the simplest answer to civil recourse theory – tort law is essentially private and is structured to encourage the private resolution of any disequilibrium created by the tortfeasor’s conduct. When a putative tortfeasor chooses to avoid injurious conduct (the heart of instrumentalist tort theory), this is a private decision. When a tortfeasor voluntarily repairs harm that he caused, this is an essentially private resolution of the problem. But when a victim acts against the tortfeasor through the courts, the state necessarily gets involved. In this way, civil recourse theory is less private than corrective justice theory. This article proceeds as follows. First, it surveys the three most popular contemporary tort theories, corrective justice, instrumentalism, and civil recourse theory, along with the theory proposed here, civil reconciliation theory. Second, the nature of each tort theory is illuminated by associating each theory with a different stage of a putative tortious interaction. Finally, a partial taxonomy of civil reconciliation tort theory terminology is presented, followed by a brief conclusion.

Hensler, Louis W, Civil Reconciliation Tort Theory: Making Torts Private Again(February 26, 2021).

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