Rebecca Stone

This chapter defends a deontological approach to the problem of non-compliance with the demands of justice. It argues that non-compliance can, at least under some conditions, be viewed as a burden over which rights can be defined. Deontological conceptions of justice reflect certain fundamental normative commitments, and these can be invoked to derive a rights-based solution to the problem of non-compliance, just as they are invoked to determine the content of agents’ rights under ideal conditions. In defending this view, it is not denied that there can be weighty agent-neutral and consequentialist reasons for implementing certain rules to combat problems of non-compliance. Such rules, the chapter argues, can sometimes be justified all things considered, but even when they are, they do not affect the contours of agents’ rights.

I develop and defend a novel account of the private law of remedies according to which it is best understood as facilitating deliberations between the parties about the just outcome of their dispute rather than correcting injustice or righting wrongs. According to my democratic conception, the parties are the ones who ideally ought to resolve moral uncertainty about justice between them by deliberating together in good faith about what justice requires. The law of remedies should therefore often refrain from offering a final judgment about what justice between the parties requires, instead setting and implementing fair default rules and principles in the shadow of which the parties will ideally articulate for themselves a joint vision of justice for their relationship.

What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil recourse conception has significant justificatory advantages over both corrective justice and instrumental accounts. Even under these conditions, however, it remains difficult to explain within the confines of civil recourse theory why enforcement of tort law’s primary norms should remain in the hands of the victim. I suggest a possible explanation, but it requires us to jettison the claim that the wrongs of tort law are genuine wrongs.