Favorite Tort Theory Article of the Year: John Gardner on Corrective Justice

It has been an interesting year in the theory of tort law.  Gregory Keating’s stuff is always good (here); Scott Hershkowitz cleverly used Harry Potter to demonstrate how tort theory is often blind to procedural dimensions of tort law (here); Goldberg & Zipursky offered a comprehensive account of their conception of tort law as a law of private wrongs (here); Joseph Raz wrote brilliantly on responsibility and the negligence standard (here, here); Avihay Dorfman has defended an account of the morality of tort law based on the value of equal-respect (here, here), and there have been others.  Yet, my favorite (with Raz of course a close second) is John Gardner’s recent article on corrective justice (here).  

Gardner – successor to Ronald Dworkin as the Chair of Jurisprudence at Oxford – is often primarily thought of as a theorist of criminal law, which may have the unfortunate effect of distracting readers from his equally impressive work in other fields such as torts (e.g., here, here, here, here).  Not that I always agree with Gardner.  In fact, I devoted an article to exploring and rejecting some of his ideas on the nature of the negligence standard (here). Yet, I believe that Gardner is among the handful of the world’s very best legal philosophers.  His work is always carefully reasoned and highly illuminating.  You may say I’m a fan.

In his most recent piece – "What is Tort Law For? Part 1: The Place of Corrective Justice" – Gardner sets out to clarify the concept of corrective justice and its role in the law of torts.  A corrective justice approach to tort law appears, at least on its face, overly focused on tort law’s remedial aspects.  Remedial duties are second-order duties.  They are predicated on a violation of first-order duties, which in tort law are embodied in duties such as the duty of care.  Any account of tort law predicated on corrective justice must explain how corrective justice – a concept focused on the remedial – can account for the primary duties of tort law.  Jules Coleman, for example, tackles this problem in his The Practice of Principle (lecture III).

Gardner’s article is rich.  His explanation of the logic of corrective justice and its relation to primary obligations is particularly interesting. Where an obligation is violated one may often still conform to the reasons for that obligation.  Given that it is no longer possible to adhere to the original obligation, the persisting reasons for that obligation call for the next-best satisfaction.  Put differently, the rationale for a violated primary obligation (e.g. a duty of care) is also a rationale for a secondary obligation which is an obligation to do the next-best thing (e.g., compensation).  Tort law’s remedial obligations of corrective justice are rational echoes of tort law’s violated primary obligations.  Realizing this clarifies the normative connection between duty and remedy in tort law: the reasons why one must pay for the wrongful harms one causes are the same reasons why one must not cause such harms in the first place.  Gardner calls this the “continuity thesis.”  Plaintiffs’ remedial acts are (partial) conformity with those original reasons they failed to conform to in violating the primary obligations of tort law.  In tort law the reason not to violate the primary obligation is that even perfect performance of a secondary remedial obligation does not ever fully satisfy the reasons for the primary obligation.  There is always a rational remainder of nonconformity.  This remainder manifests itself in reasons for a variety of reactive emotions such as regret or shame for violating one’s primary obligation. 

Gardner is currently working on a sequel project titled: "What is Tort Law For? Part 2: The Place of Distributive Justice."  I cannot wait.