The Weakness of Relationality as a Unifying Concept in Tort

Abstract

Corrective justice and civil recourse theorists aim to provide coherent and unified theories of tort law—and private law more generally. In doing so, they have identified relationality as a key unifying concept. For corrective justice theorists, relational rights and wrongs are based on the internal moral structure of private law—namely a notion of rights that protect a person’s capacity to exercise purposive agency. For civil recourse theorists, on the other hand, relational rights and wrongs are grounded in the positive law. This essay assesses whether relationality does, in fact, provide a strong foundation for grounding a theory of tort law. It argues that, while relationality certainly describes aspects of the remedial relationship between right and wrong, it does not generally provide sufficient guidance for understanding what kinds of “relational wrongs” should be redressable by tort in the first instance.