Corrective Justice, the Continuity Thesis, and the Duty of Care in Negligence Law: Lessons from John Gardner’s From Personal Life to Private Law

Abstract

In his writings on the philosophy of private law, which form part of his body of work on norms and normative puzzles regarding private relations more broadly, John Gardner has explored moral values (of which justice, corrective or distributive, is only one example) and the domain of legal rules (from tort to contract, and beyond). His exploration has often been conducted in light of felicitous or merely intended ways in which rules allow law’s subjects to pursue values. In this respect, the title of his recently published monograph, From Personal Life to Private Law, is a fitting one. Not only for the book itself, but also for what could be a future collection of his yet ungathered articles and chapters that complement the monograph, when it comes to its portrayal of private law. The portrayal itself is multifaceted, but accessible in its entirety from a strikingly straightforward standpoint: from Gardner’s perspective, private law emerges as the sphere in which persons are to relate to each other as equal holders of rights and duties, and as bearers of their own (or, where appropriate, others’) losses. This article borrows Gardner’s spectacles to take a closer look at a specific instance of rendering one person the bearer of another’s losses and at some normative intricacy that such a reversal of the said burden of losses may give rise to.