What Do We Remedy?

This chapter examines the nature of civil wrongs from the perspective of the law of remedies, querying the supposition that remedies are exclusively responsive to primary rights violations and, in turn, the related supposition that a civil wrong is nothing more the violation of a primary right and correlative duty. Here, remedies correct for wrongs, but it is essential to recognize that the nature of a wrong—and, in turn, the selection of an apt or responsive remedy—is not driven exclusively by the nature of the right that was violated by the wrongdoer. This chapter’s analysis is framed as a critique of corrective justice theorists’ assertion of tight conceptual and normative connections between primary rights and duties on the one hand and remedies on the other. It argues that remedies are partly responsive to rights violations, and thus the ex ante positioning of the parties as a matter of right. But an expectation of responsiveness underdetermines choices between different kinds of remedies and those bearing on the quantum of relief to be afforded to a successful plaintiff