Comment on Gardner: Duty and Right in Private Law
Forthcoming, Jerusalem Journal of Legal Studies (2017)
14 Pages Posted: 8 Dec 2016
Date Written: December 6, 2016
John Gardner’s From Personal Life to Private Law is a striking marriage of cultivated sensibility and analytic prowess. Professor Gardner is both acutely sensitive to the lived experience of our moral relationships and highly skilled at disentangling the threads which those relationships weave together to realize rich and distinctive forms of value. From Personal Life to Private Law pursues its thesis that there are multiple and deep connections between the ideas of duty, responsibility and reparation that lie at the center of private law and their counterparts in the relationships that figure centrally in our private lives with both subtlety and rigor. The work stimulates in the way that only the best tort theory does.
My Comment is shaped by two responses to this overarching theme. On the one hand, I share Gardner’s doubts that the form of the tort lawsuit should loom as large as it does in the tort theories of Coleman, Ripstein, Weinrib and others. Duties of repair live in the shadow of primary duties of respect, and come into play only when those primary duties have not been discharged. Tort lawsuits and their form are secondary, not primary. On the other hand, private law and personal life diverge in very important ways. Coercion and rights loom large in tort whereas they are conspicuously absent from Gardner’s account of the morality of private life. In private life, obligations loom much larger than rights. We have the tort duties that we have primarily because we have interests important enough to justify constraining our conduct towards each other. Many of the duties that we have in personal life, by contrast, are not owed to specific persons and are not coercively enforceable by them. Characteristically, the duties on which Professor Gardner dwells are justified because they enable to realize values which are important to our (private) lives, but which have little if anything to do with respect for important interests of others. We tend to lose sight of this fundamental difference between private law and private life if we focus too intently on the interconnections between the two domains.
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