CONCLUSION
As a concept, civil liability is rather less grand than the idea of law itself. It is rather more abstract, however, than particular areas of law such as tort and contract—let alone concrete doctrines such as negligence or breach. Occupying an intermediate position, it has garnered relatively little attention in contemporary debates in the philosophy of law. This is unfortunate. First, civil liability is one of the most ubiquitous legal phenomena that we encounter. If we take the work of the courts as a measure, it is more common than criminal punishment, a concept that has garnered far more
attention. Its very omnipresence ought to make it worthy of attention. Second, civil liability is striking in the way that it unites apparently disparate fields of law. Tort law and contract law are quite different in terms of both their goals and their structures. They both, however, result in civil liability. Focusing on the concept of civil liability thus provides us with a mechanism for thinking about their relationship to one another.
Ultimately, the ideas of duty and cost, which are the most common ways of thinking about civil liability, do a poor job of capturing its basic structure. Both approaches tend to assume that civil liability is a mechanism by which the state coerces the conduct of defendants, either in the payment of a fine or the performance of some obligation. What these approaches
miss is the primary role of the plaintiff’s agency in civil liability. Civil liability does not ultimately consist of the state coercing a recalcitrant individual. Rather, it consists of rendering a defendant vulnerable to a plaintiff and then placing tools at the disposal of the plaintiff to take or restrict the defendant’s property and liberty. Placing vulnerability at the center of our
understanding of civil liability, in turn, provides a fulcrum for understanding its purposes and the way in which it relates otherwise disparate fields of law to one another.