Document Type

Article

Publication Date

2012

Abstract

Viewed in a certain light, tort law serves primarily to give injury victims a means of imposing onerous burdens on their injurers. Through the remedy of injunction, tort law enables victims to restrict their injurers' freedom of action, and through the remedies of damages and restitution, tort law enables victims to deprive their injurers of money and other things of value. Moreover, tort law distinctively grants victims themselves the power to impose these burdens, rather than reserving prosecutorial discretion to the state. These features of tort law invite the charge that tort law is essentially a form of institutionalized revenge. If sound, this charge is damning. Most would agree that institutions of revenge have no place in a just society, and even those who might see a place for such institutions would likely find tort law to be a poor candidate. Because tort liability is assessed by an objective standard, a standard that generally pays no heed to a defendant's individual capacities or to the moral quality of a defendant's motivation, tort law enables victims to exact a remedy from injurers who are only slightly blameworthy or even morally innocent-injurers no one would regard as appropriate objects of revenge. Behind this line of criticism lies a simple and perhaps arresting argument. The revenge argument, as we might call it, relies on two key premises: one about tort remedies, the other about tort plaintiffs. Premise 1: Tort remedies inflict harm on tortfeasors. Premise 2: Plaintiffs are motivated to seek tort remedies by a desire to inflict harm. Conclusion: Tort law is a form of institutionalized revenge. The revenge argument seems to resonate with many people, so it is an argument worth taking seriously. It nevertheless has two troublesome characteristics: the premises are doubtful, and, even if they are true, they provide no support for the conclusion.

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