What is Wrong with Wrongdoing

Abstract

This short article, which was prepared for a conference on civil recourse theory at Florida State University School of Law, asks whether Blackstone’s rejection of maintenance is inconsistent with the theoretical commitments of modern civil recourse theory. Blackstone strongly believed that third parties should not help victims of wrongdoing discover that they have been wronged, this article asks whether modern civil recourse theory is committed to the position (now in retreat throughout common law nations) that third parties who help strangers’ lawsuits are acting against the public interest (or, as Blackstone put it, are “pests of society . . . disturbing their neighbor’s repose”).

I argue that although modern civil recourse theory is not committed to repeating Blackstone’s mistake, the reasons why are illuminating. One possible justification for Blackstone’s position is that he believed that a victim who did not know that she was wronged suffered no legal wrong at all. This justification is based on the error of equating subjective experience with juridical fact. What, however, is the basis of the juridical fact of being wronged in civil recourse theory if it is not the subjective experience of mistreatment at the hands of a private law wrongdoer?

According to civil recourse, tort victims are wronged because they have suffered a mistreatment in law. The article argues that it is only once victims learn the facts necessary to ground the conclusion that they have been legally wronged (as opposed to injured) – a state of affairs that may not take place until months if not years after the initial injury – that their subjective experience of being wronged comes into alignment with the juridical fact that they suffered a mistreatment in law. If this analysis is correct, the “resentment” experienced by victims, which civil recourse identifies as a justification for holding wrongdoers accountable in law, is not grounded in the victim’s own subjective interests (although it often coincides with that) but the victim’s interest in the enforcement of obligations created by the state. The article concludes that, if this analysis of “wrongs” in tort is correct, then there is no conflict between litigation finance and civil recourse theory, since the civil recourse theorist – Blackstone – should endorse a practice that promotes the enforcement of obligations created by the state by those whom the state has empowered to enforce them, regardless of whether the victims of tort experienced (or suffered) any non-legal wrong.

Keywords: Tort theory, civil recourse, Blackstone, courts, maintenance