1. Justifying Private Law: General Issues
1.1 Duties
For Gardner, tort and contract law, as areas of law, are partly constituted by their providing remedies for breaches of certain kinds of legal duty, and these legal areas are, in turn, justified in so far as their existence contributes to the fulfilment of the moral duties which the legal duties constitute or reflect, and to the promotion of or respect for other valuable goods.3 Tort law’s concretizing of individuals’ abstract moral duties of corrective justice, for instance, is a “necessary” part of its justification.4 The idea—a general theme of Gardner’s work—is that legal institutions are pro tanto justified to the extent that they promote conformity to the reasons, including duties, that people
1 For overviews of John’s scholarship, see J Edwards, “John Gardner” in M Sellers and S Kirste (eds), Encyclopedia of the Philosophy of Law and Social Philosophy (Springer 2021); H Collins and A Duff, “John Gardner” in Biographical Memoirs of Fellows of the British Academy, XX, 1–24 <https://www.thebritishacad emy.ac.uk/publishing/memoirs/20/gardner-john-1965-2019/>.
2 In J Gardner, From Personal Life to Private Law (OUP 2018) (“FPLPL”) 4 he dates his beginning “more serious” work on private law from 2008. See, earlier, J Gardner, “The Purity and Priority of Private Law” (1996) 46 University of Toronto Law Journal 459, and chs 4, 5, and 8 of Torts and Other Wrongs (OUP 2019) (“TAOW”).
3 See FPLPL (n 2) 8: “ultimately the only considerations that are relevant to defending the law are considerations that are also relevant to defending what people do quite apart from the law.”
4 TAOW (n 2) 32.
Haris Psarras and Sandy Steel, Introduction In: Private Law and Practical Reason. Edited by: Haris Psarras and Sandy Steel, Oxford University Press. © Haris Psarras and Sandy Steel 2023. DOI: 10.1093/oso/9780192857330.003.0001
have independently of the law. Private law is no different—to the extent it differs from other fields of law, its difference resides in the nature of the duties conformity to which it supports, or in the mode by which it seeks to promote conformity.
Nicholas McBride and Leo Boonzaier each challenge, in very different ways, the central place occupied by duties in Gardner’s account of private law. McBride’s chapter raises doubts about the very existence of moral duties. If there are no moral duties, then private law cannot be justified, as Gardner would have it, in so far as it secures conformity to them. McBride’s argument proceeds by sketching an account of morality which, he contends, dispenses with the notion of “moral duty,” and defending the superiority of this account to a moral-duty-based view “M.” In this eudaimonic (ie flourishing-cantered) account, “E,” morality is concerned with “(i) evaluation; (ii) transitions; (iii) temptations; (iv) concern for others; and (v) transcendence.”5 Morality’s evaluation is of when a state of being constitutes flourishing for a human being (rather than whether an action is in breach of a duty). Transition and temptations are a matter of providing guidance for moving from a non-flourishing to a flourishing state, and of avoiding human inclinations to subvert one’s own flourishing, respectively. Concern for others is partly constitutive of what it is to flourish. Finally, transcendence is the part of morality concerned with goods that go beyond flourishing. McBride’s case for E over M focuses on cases in which M appears not to register an intuitively justifiable feature of our moral reactions to particular moral problems. Sometimes, the wrongness of a particular action is only captured by its falling under the description of a “thick” ethical concept, such as “bestial” or “cowardly,” concepts which McBride holds to fall more naturally within E rather than M.
Boonzaier’s chapter is not skeptical of the very idea of moral duties but rather of Gardner’s contention that the breach of a primary moral duty is a necessary condition of justified tort liability to compensate. Gardner followed Raz in understanding duties as special kinds of reason. A reason to φ is a duty only if the reason is categorical (the reason’s existence is independent of the aims of the person for whom it is a reason) and mandatory (there is a reason not to act upon at least some of the reasons against φ-ing). Boonzaier examines the case for Gardner’s view that there must be non-conformity to a mandatory reason to justify tort liability. One argument considered is that, given the negative consequences inflicted upon a liable person in tort, the imposition of these consequences can only be justified when the person has behaved objectionably. As Boonzaier points out, this idea does not lend support to Gardner’s view. On Gardner’s view, a person can act contrary to a mandatory reason and yet be justified. Justified breaches of duty are possible. If so, the link between “breach of a duty” and “objectionable conduct” is broken: breaching a duty might in the circumstances even be required and so not be straightforwardly objectionable. Nor, Boonzaier argues, does Gardner’s justification of compensatory action itself support a mandatoriness condition. According to the continuity thesis justification of compensation, the reasons which grounded a person’s primary duty at time point t continue to demand conformity after breach. In so far as conformity can still (imperfectly) be achieved by compensation, there is a reason to compensate. Why believe, however, that only mandatory
5 McBride, Chapter 3, this volume, 46.
reasons can hang around demanding conformity after non-conformity? In principle, non-conformity to a non-mandatory, weighty reason could require compensatory action. Boonzaier argues there is a robust, contingent connection between the breach of a primary duty and justified tort liability, but that, ultimately, the case for a necessary connection is not established.
1.2 Practical reasons in general
Private law attributes normative significance to the outcomes of one’s conduct. A person’s legal liability to pay compensation normally depends (absent an enforceable agreement to pay compensation) upon whether the person’s conduct was a cause of the outcome in respect of which compensation is sought. The result is that private law accepts a significant degree of luck in assigning entitlements to compensation. Although two drivers may have imposed equal, unreasonable, risks of harm, only the driver whose risk imposition materializes in harm may be faced with a substantial compensatory liability. Some regard this as a puzzling instance of “moral outcome luck.”6
Gardner argued for the pervasive bearing of outcome luck upon certain kinds of moral assessment. He did so, in part, by drawing attention to the existence of certain kinds of reason: reasons to succeed.7 The argument is that a basic form of reason we have are reasons to succeed. We have reasons to keep our promises, not merely to try to keep our promises; reasons not to harm each other, not merely reasons to try not to harm each other. If our non-mandatory reasons include reasons to produce or not to produce certain outcomes, then a burden of proof is cast upon those who would claim that our mandatory reasons cannot have this form.8 If the outcomes one has caused or failed to prevent can impact upon the reasons one has failed to conform to, then it becomes less puzzling that the harm-causer is subject to a liability to which the mere harm-risker is not. The two agents fail to conform to different reasons: the harmcauser fails to conform not only to the reason not to impose unreasonable risk but also to the more fundamental reason not to harm itself.
Ori Herstein’s chapter takes up the “reasons to try” side of Gardner’s fruitful distinction and elucidates the connections between reasons to try and the law, various ways in which there can be a value in trying, and the reasons to which these values give rise. Herstein first articulates a particular moral problem with legal duties to try: since trying-to-φ involves forming an intention-to-φ, legal requirements to try mandate specific mental states, an interference with liberty which is normally considered especially difficult to justify. His discussion then moves to the various values of trying, dividing between cases in which trying is valuable as a means to some valuable end, and cases in which trying has intrinsic value. In the first category, beyond the relatively
6 See J Waldron, “Moments of Carelessness and Massive Loss” in D Owen (ed), Philosophical Foundations of Tort Law (Clarendon 1997).
7 For another argument, a Nagel-inspired reductio based on the consequences of denying the role of luck in moral life, see TAOW (n 2) ch 5.
8 TAOW (n 2) 171–72.
straightforward instance in which trying to φ is a means to φ-ing, Herstein examines three others: reasons to try to φ that arise as a means of aspiring to φ, even when φ-ing is unattainable (a pianist’s reason to try to become a consummate pianist); reasons to try to φ as a means to the achievement of a valuable end other than φ-ing (a child’s reason to try to win school sports competitions arising at least in part in virtue of the health or developmental benefits to the child); and reasons to fail-to-φ-by-tryingto-φ (the reason to fail at first attempt, because success later will be all the sweeter). Herstein also seeks to demonstrate the existence of reasons to try based on the intrinsic value of trying. An important class of cases here, Herstein claims, are those in which there is an expressive value to trying to φ, even when it is futile (and so the reason to try cannot be derivative of the prospect of success at φ-ing). Moving beyond the much-discussed Gardner example of a person who, atop a hillside, is manifestly unable to assist a drowning person below—Gardner claimed such a person has a reason to succeed in rescuing, but not a reason to try—Herstein elaborates other examples that make expressively justified trying plausible: “think how, upon hearing of a friend’s advanced terminal illness, is there really no point to one’s silent prayer for a miraculous recovery, even if one is a non-believer?”9
Accepting the idea of reasons to succeed does not itself settle the issue of when one has such a reason. Gardner held a rather expansive view: one could have a reason-to-φ even when one is unable to φ. He rejected at least some versions of “ought-impliescan” (OC). Frederick Wilmot-Smith draws attention to a tension between Gardner’s rejection of OC and his defenses of the rule of law. He identifies common theoretical motivations for both the OC maxim and the rule of law ideal: guidance and fairness. A prominent motivation for OC is that it is in the nature of normative reasons that they guide action. Similarly, the rule of law is an ideal conformity to which is intended to render the law capable of guidance. The idea that it would be unfair for a person to be subject to moral requirements to which she is unable to conform is also adduced in support of OC and against legal requirements that demand the impossible. How, then, can one reject OIC and accept the moral demands of the rule of law? Ultimately, Wilmot-Smith argues that the tension can be dissolved. First, the guidance requirements that the rule of law imposes on legal norms have a different content to the guidance requirements on purely moral norms. This is because legal norms are directed to both law-appliers and legal subjects. This creates special problems because what constitutes good guidance for law-appliers may be rather different from what constitutes good guidance for legal subjects. No parallel problem exists in the purely moral domain. Second, Wilmot-Smith argues, the ideal that norms should provide guidance applies to all persons in relation to every action in morality, but “the value of legality will be met so long as a sufficient number of individuals who are to be guided by the norm—be they citizens or officials—can be guided by it.”10 One reason is that the value of legality will itself be subverted if laws are tailored to the particular abilities of each individual: the result would be a legal system that is incapable of providing satisfactory guidance.
9 Herstein, Chapter 4, this volume, 74.
10 Wilmot-Smith, Chapter 5, this volume, 86.
1.3 Justice
A prominent theme in contemporary philosophizing about private law is the exploration of connections between private law and justice. On one view, associated with Ernest Weinrib’s work, private law’s sole justified task is the provision of corrective justice, while public law is properly concerned with distributive justice.11 Gardner disagreed. Private law is partly constituted by norms of corrective justice, but only partly—many of the primary duties imposed by tort law, for instance, are not themselves norms of justice, and some justified norms of private law are norms of distributive justice.12
Gardner’s view rests upon a concept of justice as concerned with allocations. Norms of justice are allocative norms. Corrective justice norms regulate a particular kind of allocation: they are norms that allocate “back” after a transaction, including a wrong. The wrongness of torture is not a wrong of justice since it is not wrong in virtue of allocating something incorrectly. Tatiana Cutts’ chapter challenges Gardner’s conception of justice and questions the theoretical need to establish the “subject matter” or domain of justice in philosophizing about private law. According to Cutts, allocation of (scarce) goods is neither necessary nor sufficient for an activity to be a matter of justice. It is not necessary because issues of justice are intuitively raised by the proportionality of punishment to crimes, even though freedom from punishment is not a scarce good. It is not sufficient because, for instance, decisions about distributing one’s attention among potential dating partners do not raise issues of justice. Cutts suggests that the thread relating these examples—including one within justice and excluding the other—is whether an action bears upon rights. However, her chapter’s more fundamental point is that the theoretical value of first characterizing a problem as a problem of “justice” in allocation is non-obvious, and potentially detrimental: “Framing problems of justice as ‘allocative’ tends to focus our attention on the relative strength of two parties’ competitive claims to some specific set of goods at a particular moment in time, on the basis of known facts.”13 Such a framing directs attention away from the question of justifying a rule that regulates particular situations, and the reasons there may be for valuing the existence of such a rule.
As noted above, Gardner’s position is that private law raises issues of corrective and distributive justice and is justifiably concerned with both. One way in which he argued for this was to point to decisions about the legal institutionalization of moral rights and duties of corrective justice. Moral duties of corrective justice arise as a manifestation of reasons which grounded primary moral rights and duties, but which moral duties of corrective justice should be legally regulated, and upon whom should legal rights of corrective justice be conferred? These, Gardner held, are inevitably allocative questions, the domain of distributive justice. Private law is, in this way, in the business of resolving questions of distributive justice about the distribution of legal rights to corrective justice. Rebecca Stone’s chapter agrees with Gardner that private law is
11 E Weinrib, The Idea of Private Law (reprint, OUP 2012).
12 See TAOW (n 2) 31–44.
13 Cutts, Chapter 6, this volume, 103.
justifiably concerned with distributive and corrective justice, but argues that the interrelationship between the two is more complicated than in Gardner’s account.14 In Stone’s account, moral rights and duties are resolutions of conflicts between different normative standpoints that reflect the governing moral reasons bearing upon a choice. Moral rights and duties are, in this sense, inherently allocative since they give normative priority to some normative standpoint over another in relation to a particular choice. In this sense, moral rights and duties are all inherently a matter of distributive justice. Stone agrees with Gardner that corrective duties arise as a means of imperfect conformity to the moral reasons that generated the primary moral rights and duties. So it might seem that, for Stone, justified legally regulated corrective justice is wholly dependent upon legal rights reflecting the underlying, distributively just, moral rights. Stone’s view allows for a partial independence between substantive distributive justice and justified corrective justice, however. The idea is that the law can justifiably and authoritatively resolve normative uncertainty about substantive distributive justice, even when it wrongly assesses the moral reasons bearing upon a particular situation. Here the parties, relative to the moral facts, do not have the substantive moral rights which the law claims they have. Nonetheless, given the reasonableness of the resolution of the normative uncertainty in question, the parties could be morally bound by the legal determination of their rights and duties. Consequently, there could be a moral duty of corrective justice independent of the primary rights and duties being substantively justified as a matter of distributive justice.
1.4 Instrumentalism
Gardner urged against false oppositions in the philosophy of law, considering the tendency to package together sets of theses as rival schools a “blight” on the subject.15 Vague labels can obscure underlying agreement (or mislocate disagreement). For instance, if “instrumentalism” is the thesis that “private law [is] a means of forwarding the community’s aggregate welfare through a strategy of maximisation often expressed in economic terms,”16 then both Gardner and Weinrib are anti-instrumentalists. If instrumentalism is the thesis that “private law [is] a means to something else,”17 it is also not entirely clear that Gardner and Weinrib are in disagreement on this point. If “is a means to” is understood to include both relationships of facilitation and part-constitution, then Weinrib and Gardner are probably both instrumentalists. If Weinrib accepts that the content of private law is partly determined by social facts about judicial and legislative conduct (as his writing a casebook on torts would imply), then it seems likely that these social facts are only valuable to the extent that they partconstitute people as moral equals. The law is still justified only in so far as it contributes to the realization of an ideal that is partly independent of the law.
14 Stone, Chapter 7, this volume.
15 J Gardner, Law as a Leap of Faith (OUP 2013), vi.
16 Weinrib The Idea of Private Law (n 11) 48.
17 ibid 49. See TAOW at 328ff for discussion.
Agreement on the fact that private law is valuable (at least partly) as an instrument to morally valuable states or outcomes does not settle, of course, what those are or how exactly the instrument should operate. Sandy Steel’s chapter addresses the role of deterrence—a particular mode, he notes, of influencing the conduct of others—within non-consequentialist accounts of private law. It seeks to vindicate Gardner’s view that considerations about the beneficial or negative deterrent impact of private law are relevant to its justification within a non-consequentialist outlook. His chapter argues that while the beneficial deterrent impact of a private law norm is neither necessary nor sufficient for its justification, it can decisively determine which private law norms ought to be adopted among those which have a non-consequentialist justification and enter into the design of private law institutions whose duties are incurred by choice.
2. Responding to Wrongs
2.1 Victims’ duties to wrongdoers
As Cécile Fabre observes in her chapter, the far greater part of philosophical attention in the domain of reparative justice has been focused on wrongdoers’ reparative duties to victims.18 A neglected question, posed by Gardner in From Personal to Life to Private Law, is whether victims have duties to wrongdoers to accept their offers of amends, and in so far as that amounts to financial compensation, to use the compensation to effect repair of the wrong. Gardner sketched a view according to which victims were so duty-bound.19 Fabre’s chapter uses Gardner’s remarks as a springboard to examine the issue more fully. It argues against victim duties to accept financial compensation and against a duty to use financial compensation, if accepted, to repair the wrong. Consider first duties to accept compensation. Fabre gives a case for moral duties not to thwart others’ performance of their moral duties: such a duty is supported by others’ well-being (in so far as living a life in accordance with moral duties contributes to one’s well-being) and respect for their moral agency. However, she argues that the interests of the victim which ground reparative duties to compensate also ground victim powers to waive such duties, and a permission for the victim vis-à-vis the wrongdoer to do so. Part of the argument draws on a comparison with duties to rescue: the victim’s interest grounds this duty but it also grounds a permission to release a person from their duty to rescue. If this is true in relation to duties of rescue, it is unclear why the same should not be true in relation to duties to improve another’s position through compensation. Consider next duties to use compensation to repair the wrong. Here Fabre’s negative case focuses on the fact that, if the victim uses money compensation for a purpose other than repair of, say, wrongfully damaged property, this merely involves the victim doing something that they had an option to achieve through their property prior to the wrong. For instance, if the victim uses the payment for a replacement car to fund her daughter’s holiday, she does something which she could have achieved by selling the car prior to the wrong. Fabre points out
18 Fabre, Chapter 9, this volume.
19 ibid 145.
that it is obscure why the wrongdoer should be able to insist that a replacement car is bought first and then sold to allow the victim to achieve this result. The chapter concludes by considering exceptional situations in which, due to special relationships, the victim may have a duty to accept monetary compensation.
2.2 Wrongdoers’ duties to victims
Why are there duties to compensate for harm caused by one’s wrongdoing? Gardner’s answer was his well-known “continuity thesis.”20 Although the breach of a duty may mean that the duty no longer exists, the reasons which grounded that duty continue, after breach, to exist and demand conformity. Perfect conformity after breach is impossible, according to Gardner, because the reason constituted by the breached duty is itself no longer available for conformity.21 However, in so far as the reasons that grounded one’s duty can still be conformed to, and in so far as compensation will constitute conformity to those reasons, one has a reason to compensate. Typically if those reasons amounted to a duty prior to breach, Gardner claims, they will also have dutybearing force after breach. This is an elegant explanation of why duties to compensate arise, an explanation that avoids appeal to an independently justified principle of corrective justice: the justification of compensatory duties just is the continued force of the reasons for one’s original duties.
The continuity thesis follows from a general principle about reasons to which Gardner subscribed: the “conformity principle,” which holds that one ought to conform to reason completely and if one cannot do so, one ought to come as close as possible.22 The fact that the continuity thesis is a special application of a general thesis about reasons, regardless of whether they are mandatory and categorical reasons, and regardless of why a person failed to conform to a reason, has given rise to an important critique of the thesis as an explanation of compensatory duties. The critique, as John Oberdiek explains in his chapter, is that the thesis accords no distinctive significance to wrongs Non-conformity to any reason, not just reasons whose non-conformity amounts to a wrong, entails a reason to do the next best thing to conformity. Further, the fact of non-conformity itself is only a causal condition for the duty to compensate; the wrong itself is not a normative reason for the duty to compensate. The fact that one committed a wrong is not, after all, among the reasons which justified one’s original duty so, the objection runs, the continuity thesis cannot capture the sense in which one’s wronging another is part of the positive justification of why one is under a duty to compensate them.
Oberdiek aims to defend the continuity thesis against this criticism by showing that it accommodates a distinctive significance to wrongs. His central point is that nonconformity to a relational duty—a duty owed to another—is distinctive from other forms of non-conformity to reason in that it amounts to the frustration of a claim
20 See TAOW (n 2) 61.
21 TAOW (n 2) 62.
22 A principle stated by Raz: J Raz, “Personal Practical Conflicts” in P Baumann and M Betzler (eds), Practical Conflicts: New Philosophical Essays (CUP 2004) 189–93.
This can be registered by the continuity thesis because a person’s claim amounts to a reason for the original, primary, duty, and the secondary duty that arises upon breach. Further, the continuity thesis is also, Oberdiek suggests, compatible with the idea, distinctive to relational duties and so to wrongs, that there is a value in accountability. Part of what justifies primary relational duties is the value of accountability and this value also partly justifies secondary relational duties.
Although Gardner developed the continuity thesis in detail in a paper about the role of corrective justice in tort law, one of the examples with which he illustrated the idea was a promissory one.23 A father promises his children to take them to the beach at the weekend, but an emergency precludes him from doing so. Intuitively, Gardner thinks, the father cannot simply move on without further ado in the face of the broken promise. Rather, the reasons that grounded the primary duty to perform continue to demand conformity—these reasons now require some next best action for the benefit of the children promisees, such as a substitute beach trip another day. Generalizing, Gardner holds that the breach of a promise generates a duty to do the next best thing, even if the breach was justified.
Dori Kimel’s chapter critically scrutinizes the idea that breach of a promise always gives rise to a duty of next-best conformity. He agrees with Gardner that the breach of a promise always generates a duty, but disagrees that it always triggers a duty of nextbest conformity. For Kimel, the justified breach of an altruistic promise gives rise to a duty to give an account to the promisee of, at least, the fact that there was a justification for the breach, but it may not require more. Whether a duty to do the next-best thing arises depends upon a host of factors, Kimel argues, including the non-promissory background norms which govern the parties’ relationship. For instance, a parent might owe next best conformity of a justifiably breached promise to their child in virtue of their special relationship but not to a stranger. Kimel challenges the idea that the reasons which contributed to a promised action being obligatory—the fact that a promise has been made and whatever the reasons are why promises are binding— are not “satisfied” in cases of justified breach. In such cases, the promisor adequately weighs in deliberation the rational force of the promise. Only in cases of disregard or undue weight being given to the promise does the promisor have a duty of next best conformity.
Wrongdoers’ duties to victims—as all duties—are reasons. Do reason-based accounts of reparation in private law leave room for emotions to play any normatively significant role? Answering this question in the affirmative is more straightforward when it comes to a victim’s emotions. You suffered an accident—probably due to another person’s negligence. You are disappointed and angry at the injustice you feel was done to you, so you sue the suspected wrongdoer. You may have reasons to sue them, but your emotions also motivate you.
When it comes to the wrongdoers’ emotions, any possible link between them and private law and civil litigation is less evident. In her chapter, Sinel inquires into how wrongdoers’ emotions may matter to private law, argues that Gardner treated regret as the most relevant emotion to the remedial obligations that a wrongdoer owes to
23 Borrowed from N MacCormick, “The Obligation of Reparation” in N MacCormick, Legal Right and Social Democracy (OUP 1982) 212.
the person she wronged.24 Sinel endorses Gardner’s insight into the normative potential of regret, but only when it comes to moral obligations to remedy your wrong.25 According to Sinel, regret is irrelevant to remedial obligations in law. The largest part of her argument is dedicated to the defense of the idea that the irrelevance of regret to the wrongdoer’s reparative duties is due to the fact that the normative power of reasons that remained non-conformed to at the time the wrong was committed, does not revive to support reparative duties. What Sinel takes as a fact here is what she describes as “the normative inertness” of past wrongs.26 Her approach directly opposes Gardner’s continuity thesis. But in addition to her argument against the continuity thesis, Sinel also argues that reasons in favor of the irrelevance of regret to law underlie even the continuity thesis itself; that is because, the argument continues, the continuity thesis endorses an automatic revival of violated duties in the form of reparative duties that leaves no room for emotional responses with any normative weight.27 This paves the way to the second point that Sinel raises in her chapter: regret can develop its normative appeal in the moral sphere, precisely because reparation under the law leaves no room for grounding responsibility and reparation on emotions, such as regret.28
In the concluding chapter of the section on wrongdoers’ duties to victims, Michelon offers a fresh and moderate defense of the continuity thesis. He does so through constructively comparing it with the identity thesis which he associates with some of the theoretical models in private law against which Gardner often leveled his criticism, such as those devised by Weinrib and Ripstein.29 Interestingly, Michelon’s argument begins not with taking sides in the debate between the two theses, but with clearing the ground for the strengths of each thesis to shine as each deserves, safe from the conceptual confusion that he finds to have bedeviled part of their critical reception to date. As the argument develops, Michelon engages with what he proposes as a fair charge against even a fine-grained version of the identity thesis, namely its unpersuasive attempt to individuate duties on the basis of act-individuation. A contrast of act-individuation with an alternative manner of individuating duties that Michelon considers as “ground-based individuation” provides the identity thesis with a better chance to move on in its account of primary and remedial duties in private law; a chance which, according to Michelon’s argument, explains why ground-based individuation is also favored by Weinrib.30 However, Michelon’s close scrutiny of the justificatory potential of ground-based individuation brings to light the close ties between this form of individuation of duties and a higher-level duty. Michelon argues that this undermines the credibility of the identity thesis not least because the monistic normative foundation that the high-level duty provides—or rather imposes—to the ground-based individuation leaves no room for acknowledging the relevance of other normative reasons.31 The final stage of the argument unfolds through carefully
24 Sinel, Chapter 12, this volume, 208.
25 ibid 225.
26 ibid 217.
27 ibid 214.
28 ibid 225–26.
29 See eg TAOW (n 2) ch 2. See also Michelon, Chapter 13, this volume, 227.
30 Michelon, Chapter 13, this volume, 232, 233.
31 ibid 236.
demonstrating why the continuity thesis is safe from the charge that the identity thesis is found to be exposed to when it comes to the normative grounding of primary and reparatory duties.32 In fact, the chapter’s moderate defense of the continuity thesis owes much to Michelon’s strategy of highlighting the continuity thesis’s comparative advantages over its adversary. But this strategy can also be seen as paving the way to a promising restatement of the continuity thesis that would bring it closer to the views of its rivals, while retaining its distinctiveness, and would therefore arguably increase its appeal to theorists who are still undecided as to which side they are on.
2.3 Victims’ powers
Gardner’s consideration of genuine reasons in law as moral reasons that, thanks to the institutionalization that they normally undergo in the course of power-conferring practices, concretize either their mandatory or their permissive properties, enabled him to furnish normative accounts not only of duties, but also of other normative relations in private law.33 Gardner’s theory covers not only “initial entitlements,”34 that is, rights correlative to duties not to wrong another through a tortious act or breach of contract—but also remedial entitlements as well as powers to have such entitlements crystallized in the form of enforceable court orders.
Though Gardner theorized on all three aforementioned types of entitlements and on multiple intersections among them, his philosophical exploration of this area of private law intensified at a later stage of his career; due to his untimely death, it now reaches us more in the form of fragments of a work in progress35 than in a definitive manner, as is typical of his work on the place of corrective justice in private law or on strict liability. Yet it is precisely this excitingly open-ended dimension of Gardner’s innovative treatment of private law entitlements in terms of moral reasons, legal rights, and procedural powers that appears to have inspired some contributors to this volume. Katz and Shapiro, in their jointly written chapter, embark on a constructive critique of Gardner’s theory on the reasons that underlie the plaintiff’s power to sue; a critique that inevitably extends to Gardner’s intentionally provocative consideration of plaintiffs as “acting officials” in civil litigation.36 The brevity of Gardner’s remarks on the institutional role of litigants does not make it easy to speculate as to whether his acknowledgment of an open scope of possible justifications for civil proceedings in light of a plurality of values37 is open enough to accommodate Katz and Shapiro’s justification of the power to sue on the basis of those moral reasons that survive the violation of the plaintiff’s primary rights.38 But even that justification, though it opposes Gardner’s
32 ibid 239–41.
33 FPLPL (n 2) 191–92.
34 G Calabresi and D Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harvard Law Review 1089, 1097; cited ibid 192.
35 See eg his debate with Stephen Smith on the normative reasons for damages awards in J Gardner, “Damages Without Duty” (2019) 69 University of Toronto Law Journal 412.
36 TAOW (n 2) 106.
37 FPLPL (n 2) 208–09
38 Katz and Shapiro, Chapter 14, this volume, 254–55.
dissociation of the normative grounding of enforcement rights from considerations of corrective justice,39 builds on his idea that the reasons underlying primary rights also provide the foundation for remedial rights. Taking this idea further, Katz and Shapiro claim that the normative appeal of corrective justice and of Gardner’s continuity thesis reaches beyond remedial rights and is equally relevant to the plaintiff’s enforcement rights.40 At the start of their argument, they devise three different conceptualizations of the plaintiff’s power to sue that are detectable in Gardner’s writings: the public authority conscription model, the power-sharing model, and the model of plaintiffs as quasi-officials. After endorsing the public authority model as the one that most closely reflects Gardner’s approach to the institutional role of the plaintiff, they discuss three puzzles that a solely institution-based approach to civil litigation cannot address satisfactorily. This leads Katz and Shapiro to a formulation that encompasses the strengths of Gardner’s portrayal of plaintiffs as institutional actors but also overcomes the limitations of a solely institution-based approach to the power to sue. This is achieved through calling attention to the fact that plaintiffs may act in a personal capacity in order to vindicate rights in light of moral reasons that are also personal, in the sense that there is a personal value in standing up for their rights when there would be a challenge to their dignity in not so doing.
Gardner’s classification of entitlements in private law into primary, secondary, and tertiary rights—with secondary rights being rights to remedy, and the class of tertiary rights roughly corresponding to powers often described as enforcement rights—has also provided a springboard for another chapter. In his chapter on private law rights and powers of waiver, Psarras uses Gardner’s tripartite classification as the starting point for an approach to waiving rights that intends to challenge and qualify the view that a rightholder in private law can give up any of her rights. Psarras associates this view with another which takes all private law rights to correlate to duties over which a right-holder has full control. After rejecting both views, the argument advances an alternative take on the waivability of private law rights which considers the three different types of rights highlighted by Gardner as indicative of three different types of waivability. In this framework, primary rights are seen as clusters of claim-rights, powers to waive claim-rights and powers to revoke such waivers, while secondary rights are taken to be non-waivable in light of the service they render not only to the right-holder but also to the promotion of corrective justice under the law. Finally, tertiary rights are analyzed in terms of waivable powers toward wrongdoers, but also in terms of non-waivable powers inextricably linked to courts’ authority to vindicate substantive rights and remedy their breaches.
3. Specific Areas
Among all different areas of private law, the one that attracted Gardner’s interest far more than any other is tort. His work on other areas was often a working out of the ways in which tort is distinctive from other areas of private law, such as equity or contract.41
39 ibid 248.
40 ibid 253.
41 See eg TAOW (n 2) Ch 1.
It is this well-known side of Gardner’s interests that the third and last part of this edited collection celebrates by paying tribute to Gardner’s theoretical contributions to specific areas of private law. It includes two chapters on tort, one chapter on contract, one on equity, and a final chapter that is not as much a chapter on tort as it is on the intertwinement of tort with questions of personal responsibility and interpersonal moral duties in our life under the law and beyond.42 Thus, the volume concludes with a reminder that even Gardner’s theoretical writings on specific areas of private law take us back to his general philosophy of private law and personal life.
In her chapter, Steele explores in what respect Gardner’s tort theory can be taken to have emancipatory political potential, while she also constructively discusses what she sees as the limitations of his theory in the domain of institutionalized forms of social power that could rival wealth. The element of Gardner’s account of tort that Steele highlights as most relevant to a project of political change is his original view that tort, as a whole, and, more specifically, the negligence standard protect security rights—a claim that can be juxtaposed to the classical liberal conception of tort as primarily serving individual autonomy.43 Though Gardner’s claim is that security rights are, in essence, rights to corrective justice,44 his vision, as appositely encapsulated in Steele’s argument, is that tort not only safeguards, but also—and most importantly— distributes security rights.45 Considering that the distribution of security rights also involves a distribution of powers—both in substantive law and in civil litigation— whose institutional dimension (possibly, with a little help from the judiciary) could challenge the non-institutional expansionist power of accumulated wealth, tort law can be seen as political; provided, of course, that we see the distributive considerations, which tort could enhance and concretize, as inherently political. Yet Steele’s argument also emphasizes that tort’s service to security is a double-edged sword: claims to security also tend to sustain a long-standing social order that has generated or favored unequal allocation of resources in the first place.46
While McBride and Boonzaier, as noted above, argue that Gardner is, in different ways, over-reliant on duties, Chris Essert’s chapter argues that Gardner underplays the role of strictly relational duties in tort law, specifically the tort of negligence in England and Canada. Essert and Gardner agree that private law is partly constituted by relational legal duties: duties owed by particular persons to other particular persons. In From Personal Life to Private Law, Gardner distinguished between “strictly” and “loosely” relational duties.47 A duty is strictly relational if at least part of the duty’s justification is the value of the relationship that it partly constitutes. The duties of a parent to a child are strictly relational according to Gardner: the value of the relation of parent–child is part of the justification of the duties that constitute the relationship. Loosely relational duties, by contrast, are ones which are owed to another person, but not in virtue of an independently comprehensible relation, to use Essert’s term, between the duty-bearer and the counterparty. Gardner argued that the duty of care
42 Goldberg and Zipursky, Chapter 20, this volume, 348.
43 Steele, Chapter 16, this volume, 288, 293.
44 ibid 291.
45 ibid 293–94.
46 ibid 295–96.
47 FPLPL (n 2) 23–26.
in the tort of negligence between Atkin neighbors is a loosely relational duty: what justifies the duty is not the value of the relation in which the parties stand.48 The trigger for the duty is one party being situated such that it is reasonably foreseeable as more than a far-fetched possibility that one’s careless act will physically damage the other— but what value is there in such a relation? Essert argues, to the contrary, that the duty of care between Atkin neighbors is strictly relational and owes its existence to the value of the relation it constitutes. The Atkin neighbor principle draws lines between persons to whom a special kind of concern is owed and those to whom it is not: it determines who will be wronged when a person fails to take reasonable care. If there were no such line-drawing, Essert argues, then each of us would forever be wronging the other: for instance, the materialization of any unforeseeable risk of bodily harm, or the creation of even far-fetched risks, would constitute a wrong: “Duties like that would, given the inevitability of risk-creation, effectively make it impossible for us to live our lives, to do anything at all.”49 So there is, he concludes, a value in the Atkinian neighbor relation—the value resides in its excluding certain people from the remit of a kind of special concern, which, in turn, allows people enough elbow room to live their lives freely.
In his critically alert exploration of Gardner’s tentative approach to modern contract law, Dagan starts by acknowledging Gardner’s highly skeptical position toward a number of unqualified endorsements of freedom of contract50 that idolize contract law and lose sight of the service that private law, more broadly conceived, is intended to render to an array of moral values, some of which incorporate considerations not directly relevant to the value of freedom, such as perfectionist or distributive considerations. Dagan, who has, over the years, developed his own philosophical project on contract, endorses Gardner’s criticism of a narrow liberal rhetoric that echoes a dated model of contractual relations (the “this for that” model, as Dagan labels it). Yet Dagan also argues in favor of the inherence of some liberal values in private law.51 In this spirit, he places particular emphasis on the value of autonomy.52 Overall, Dagan’s chapter joins Gardner in his rejection of theories that slavishly serve the principle of formal equality among contract parties and fail to prevent phenomena of alienation, exploitation, or subordination that the inequality of parties’ bargaining power tends to lead to. However, the approach to contract that Dagan proposes as an alternative is different to approaches we know from Gardner’s work. More specifically, it is premised on Dagan’s consideration of contract as a primarily power-conferring institution53 that can counterbalance the tendency of some contractual arrangements to generate long-term substantive inequality. Such a counterbalancing potential is, according to Dagan, a matter of ensuring secure interpersonal arrangements between a better-off and a less well-off party with a contract thus amounting to a joint plan co-authored by both parties.54
48 FPLPL (n 2) 46–52.
49 Essert, Chapter 17, this volume, 303.
50 FPLPL (n 2) 198.
51 Dagan, Chapter 18, this volume, 329.
52 ibid.
53 ibid 322.
54 ibid 324.
Gold takes a different path to explore Gardner’s more peripheral yet equally noteworthy engagement with another area of private law: fiduciary law. Rather than focusing on Gardner’s investigation into normatively significant differences between tort and equity—like those reflected in Gardner’s comparison between reparative damages for tortious wrongdoing and remedies for equitable wrongs55 Gold calls attention to a question that Gardner insightfully raised without yet attempting to answer it, but only in passing: why is there no legal counterpart of what in ordinary language is a “reasonably loyal” person?56 More specifically, why does fiduciary law not include the concept of a reasonably loyal trustee? Gold relates this question to a broader puzzle that Gardner also concerned himself with, the puzzle over the desirability of the use of non-legal concepts and criteria to further concretize legal duties that have been articulated in inevitably indeterminate terms or may have been left intentionally open-ended.57 This strategy is familiar to courts. It can be seen as a form of legal interpretation that judges or other law-appliers resort to when the law offers no answer as to how an abstract concept they find embedded in a legal rule applies to a case or an area of practice—and that is a regular occurrence. Gold acknowledges that the issue has broader implications for law, and then concentrates on additional complications or opportunities that feeding non-legal elements into law (or, in other words, buck passing, as this technique has been termed by Gardner) brings with it, specifically when it comes to fiduciary loyalty obligations.58 The argument develops through an examination of three reasons in favor of the use of buck passing in fiduciary law; reasons that highlight positive outcomes that buck passing may have for equitable reasoning (eg offering guidance for assessing fiduciary loyalty)59 and for legal reasoning, more broadly, as opening law to non-legal collective experience enables law to evolve in tune with other normative realms.60
Goldberg and Zipursky, whose influential civil recourse theory of tort61 was praised by Gardner as a reinvigoration of the classical interpretation of the common law of torts (an interpretation which part of his own work also aimed to vindicate),62 pay tribute to the philosophical outlook of Gardner’s tort law theory and explore points of convergence and divergence between his theoretical model and theirs. Their argument begins by calling attention to the moral foundations of Gardner’s conceptualization of remedying civil wrongs as a matter of restoring the wronged party’s life to the shape it had before she suffered the wrong. Goldberg and Zipursky identify the roots of Gardner’s commitment to the idea of restoration as a basis for civil remedies in his theory’s affinity to Bernard Williams’s commitment-based account of value.63 If what makes a value or a set of values more significant for one person than it may be for others is that person’s commitment to it, then securing one’s life against others’
55 TAOW (n 2) 6–11.
56 Gold, Chapter 19, this volume, 330.
57 ibid 346.
58 ibid 340–41.
59 ibid 344.
60 ibid 345–46.
61 See its recent upshot in JCP Goldberg and BC Zipursky, Recognizing Wrongs (Harvard University Press 2020) chs 1–5.
62 TAOW (n 2) 1.
63 Goldberg and Zipursky, Chapter 20, this volume, 349.
wrongful or even harmful interference safeguards not only legitimate personal choices but also states of affairs that are as valuable as also are the personal attachments created and sustained through them over time. Goldberg and Zipursky credit this philosophical background of Gardner’s thought with a transformative potential that can trigger a move from corrective-justice-based theories, like Weinrib’s or Ripstein’s, to rightsbased theories of tort, like theirs. Though Goldberg and Zipursky note Gardner’s reluctance to undertake such a move openly,64 they endorse his treatment of security as a value that private law institutions should promote also in light of considerations of distributive justice. Of course, Gardner considered the institutionalization of security demands in private law in terms of security rights, though Goldberg and Zipursky favor security safeguards in the form of the conferral of key powers in civil litigation to individuals.65 Yet Goldberg and Zipursky welcome Gardner’s insistence in making a place for distributive justice in the foundations of private law as an acknowledgment that such foundations also rest on political morality.66
64 ibid 354–55.
65 ibid 358.
66 ibid 355.
