Patching Things Up

Linda Radzik, Tort Processes and Relational Repair in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

Imagine you are trying to write a mission statement for tort law. What aspiration would you put on paper? Tort theorists will find Linda Radzik’s answer at once familiar and foreign. In Tort Processes and Relational Repair, Radzik suggests that tort should pursue corrective justice. But she rejects the familiar Aristotelian conception of corrective justice, on which wrongdoing calls for compensation that offsets the harm caused. Instead, she suggests that corrective justice requires reconciliation. According to Radzik, tort should aim to repair the relationships ruptured by wrongdoing, rather than the harms that result from it.

The problem with the Aristotelian picture of corrective justice, Radzik says, is that it mistakes what’s wrong with wrongdoing. If you think that corrective justice consists in compensation for harm done, Radzik explains, then you are apt to think that what is wrong with wrongdoing is that it damages something that belongs to the victim, or deprives her of something she is entitled to have. But, as Radzik points out, there are wrongs that do not result in harms, and harms that did not result from wrongs, so it hardly seems like harm could be the essence of wrongdoing.

What is really wrong with wrongdoing, Radzik says, is the damage it does to relationships. The primary relationship in play is the one between the victim and her wrongdoer. A victim of a wrong, Radzik observes, has reason to feel insulted and threatened, as well as reasons to doubt that she can have a relationship of respect with the wrongdoer. But there are other relationships that are damaged too. A victim may feel that her standing in the community has been lowered, that other people think that she is a proper object of the treatment she received. Worse yet, she may come to think that of herself.

In Radzik’s view, corrective justice demands that we repair the relationships that wrongdoing ruptures. Of course, repairing harm may help. After all, harm is a constant reminder of the wrong. But repairing harm is not the only, or perhaps even the primary way, of repairing relationships in the wake of wrongdoing. A sincere apology aids reconciliation, in part because it distances the wrongdoer from the threat posed by his actions. And community members can help repair their own relationship with the victim, by coming to her aid, or otherwise making clear that they do not regard her as a proper object of the treatment that she received.

Radzik’s reconciliation picture of corrective justice is attractive. But one might wonder what it has to do with tort. The parties to a tort suit are often strangers, with no antecedent relationship that might be ruptured by wrongdoing. And nearly no one who has been involved in litigation would think of it as a mode of reconciliation. If anything, a lawsuit is apt to exacerbate tensions between parties, rather than relieve them.

Radzik is not moved by the first worry, as she thinks that strangers actually have relationships that can be ruptured. We may not know the person in the car next to us, but we trust that driver to take care for our safety, and regard ourselves as reciprocally responsible for the same. That trust is liable to be ruptured. Can tort repair it? I am more skeptical than Radzik. It seems doubtful that tort could do much to help an injured driver regain trust in the driver who negligently injured her. But it might, I suppose, reaffirm her standing in her community, by clearly signaling that her well-being matters, such that others are required to take account of it. So tort, we might think, has a role to play preventing a rupture in the relationship between the victim and her community, which would come about if the community did nothing to respond to the fact that she’d been wronged.

And what of the second worry? Radzik knows that litigation poses an obstacle to the kind of reconciliation that she thinks represents the ideal for corrective justice. But she nevertheless thinks that litigation has a role to play when the ideal is not attainable. If a wrongdoer is not interested in reconciliation, then we still have reason to repair the victim’s relationship with her community, and to restore her sense of her own social standing. By calling the wrongdoer to account and by requiring him to repair the damage he has done, we reject any thought that the victim was a proper object of the treatment that she received.

I find that suggestion very congenial. I have long been a critic of the Aristotelian account of corrective justice, on the ground that we can almost never do what it demands—put a victim in the position she would have been absent the wrong. In an essay that appears in the same volume as Radzik’s, I argue that that corrective justice, properly done, corrects the threat that wrongdoing poses to the victim’s social standing, a view that shares much in common with Radzik’s. Perhaps the most important difference is that Radzik thinks that justice demands more; it demands reconciliation between the victim and her wrongdoer, if we can achieve it. I am not so sure. Indeed, I doubt that reconciliation is always a worthwhile goal. To my thinking, there are ways you might wrong me that warrant my cutting you off entirely. Sometimes, holding open the possibility that we might reconcile sends a mistaken message about the gravity of the wrong.

In the big picture, that may be a small difference. But it has consequences for the way we think of tort. I am fully on board with the idea that tort should aim to vindicate a victim’s social standing. But I doubt that tort can do much repair the relationships between victims and their wrongdoers. And I think it might be misguided to try. Still, I find the approach in Radzik’s essay refreshing. She invites us to take a step back from tort law, to think through the way that we ought to respond to wrongdoing, and then to ask what role tort can play in that process. Her answer is familiar: tort should patch things up, as best it can. But it is also provocative, since she argues that what needs patching up is relationships, not people or property.