Duty or Right? A Comment on John Gardner's From Personal Life to Private Law

Abstract

The chapters that we have from John Gardner’s book—From Personal Lifeto Private Law—are 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. The book, From Personal Lifeto Private Law, pursues its themes with both subtlety and rigor. The chapters that we have in hand trace diverse links between personal life and private law and stimulate thinking in the way that only the best tort theory does. Part of that stimulation stems from the fact that Gardner is challenging one of the most influential schools of contemporary tort theory by pervasively denying one of its core theses.1 At the outset of his manuscript, Gardner rejects the particular strand of Kantianism embodied in the work of theorists like Ernest Weinrib and Arthur Ripstein. Wienrib and Ripstein’s variants of Kantian tort theory place the form of the private lawsuit at the center of tort law and, indeed, at the center of private law more generally. So conceived, the law of torts is a special moral phenomenon, one fitted to a distinctive institutional form. Professor Gardner, by contrast, places his emphasis on the 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.