The Place of Regret in the Law of Torts

Abstract

Abstract In Gardner’s account of the problem of reparation for wrongs, the justification for tort law’s reparative obligations lies in grasping a connection between secondary duties of repair and primary duties not to commit a wrong in the first place. According to his “continuity thesis,” “the secondary obligation is the rational echo of the primary obligation, for it exists to serve, so far as may still be done, the reasons for the primary obligation that was not performed when its performance was due.” Between the first-best solution of performing one’s primary obligation and the second-best solution of performing an obligation of reparation, a gap exists, a space occupied by the actor’s feelings of regret. Chapter 12 suggests that Gardner’s focus on regret’s relevance reveals a profound problem with the continuity thesis’ applicability in tort law. Regret, properly understood, is an emotion that is keyed to situations of conflicting imperfect duties—that is, duties that require further moral reasoning and judgment to determine the action they make mandatory. In these cases, I cannot satisfy all of the imperfect duties that apply to me, but this does not mean that these duties are rendered normatively inert. Crucially, however, these situations of conflict do not arise in the private law circumstances to which Gardner applied the continuity thesis’ logic. They arise only in an extra-legal, moral sphere. Thus, while Gardner is right about the structure of moral obligations, the chapter argues that this structure does not apply to the legal obligations of tort law.