Elizabeth Bruenig
WHEN MY HUSBAND was in law school, he used to relate to me everything he was learning as a kind of memory exercise. I would typically pose a few naive questions. One evening he raised the matter of torts, and the ways a liable wrongdoer might redress the harm they’ve done. Almost always, I noticed, the restitution was monetary, even where the harm hadn’t been. “Why money?” I asked, not expecting much more than the idea that money is a universal solvent. Instead my husband dashed off a theory I’ve been considering since. As far as the law is concerned, when you harm someone, a piece of property is created—their damage, so to speak—and you, the wrongdoer, must buy it from the victim to satisfy (or at least exhaust) their claim against you.
Though I may have intuited it before, I had never quite realized so distinctly that harms can’t actually be redressed. Whatever you lose when someone hurts you, you lose for good; whatever they supply to make amends can never return you to your prior state of having never been hurt. For the law, this is a problem—because, as Agnes Callard points out, it means that the wronged have an eternal warrant for vengeance, and pose a permanent threat to peace. The imaginary property dreamed into being by tort law provides a remedy by way of metaphor. Once you surrender your damage for recompense, you have no further claim to it. So it goes with property.