John Gardner's beautifully argued latest (hereinafter, “FPLPL”) is the Sugar Ray Robinson of books on private law – it's slim, but packs an almighty punch. In reading it, I was reminded of Robert Nozick's verdict on John Rawls's A Theory of Justice: “Political philosophers now must either work within Rawls’ theory or explain why not.”
The key to FPLPL, it seems to me, lies in a half sentence that is tucked away almost a third of a way through the book: “The law exists to improve people's conformity with reasons that already apply to them” (p. 77). Gardner seeks in FPLPL to explain how private law helps us conform with the reasons that already apply to us in our everyday personal lives by (1) subjecting us to the obligations that we owe others in tort and contract; (2) subjecting those who breach those obligations to obligations to repair the consequences of their breach; and (3) giving people who have been the victim of a tort or a breach of contract wide latitude to decide whether or not to seek a remedy for that wrong, and what to do with that remedy when they get it.
It is not possible in a review of this size to do justice to the intricacy and cleverness of the arguments that Gardner makes in FPLPL; however, three dominant themes can be picked out. The first theme is the multiplicity of reasons that we are subject to. FPLPL “presents the world as a world of indefinitely many irreducibly different values competing for our, and hence for private law's, attention”. This means that as I type this review, I have an indefinite number of reasons to engage in an indefinite number of other valuable activities such as visiting a friend, hopping on a plane to the Caribbean, going hang-gliding, and so on. The number of reasons I am subject to is exponentially increased by what Gardner calls the “classical view” of reasons, “according to which any reason for P to ϕ is equally a reason for any action by anyone, familiar or stranger, that contributes to P's ϕing”. So while I am sitting here typing, I also have reason to help you and everyone else in the world to do whatever it is that you and they have reason to do.
The multiplicity of reasons that we are all subject to is reduced by duties and goals. If we are subject to a duty (whether legal or moral) to act in a particular way then “some or all of the valid reasons not to do the required thing are to be discounted …. A duty has some ability, in other words, to trump competing considerations”. Our goals also have this trumping effect in that “[w]hen certain goals are ours, we cannot regard them as just possible goals among others … adopting them as ours means coming to stand in a special relationship of commitment to them”. Adopting valuable goals is crucial to living a valuable life because without goals we would have no life; we would just drift aimlessly from one encounter with value to another. This, Gardner thinks, is why we have reason to hold on to the narrative arc of our life as it has been lived so far, and why private law is particularly concerned to help us hold on to that narrative arc by endowing us with what Gardner calls “security rights”: “rights which, if they go unviolated, will help [someone] keep her life on its existing track.”
The second dominant theme of FPLPL is the stickiness of reasons. Reasons, if they are not acted on, do not go away. This gives rise to Gardner's “continuity thesis”, according to which if I am subject to a (legal or moral) duty, then if I fail to comply with that duty but can still comply with the reasons that gave rise to that duty, I am duty-bound to do so (to an extent we will explore later). Gardner thinks that the continuity thesis accounts for some of the remedial responses to torts and breaches of contract; by requiring me to repair the consequences of my wrong, so far as I can, the law helps me comply with the reasons that underlay the duty that I breached. But not all remedial responses can be explained in this way. Sometimes my breach is so serious and its effects irreparable that the continuity thesis simply does not bite to require me to do anything. And yet, in a wonderful discussion of the nature of apologies, Gardner argues that I still have reason to do something in this situation; I have reason to acknowledge, with regret, the reasons that I have failed to comply with and can never now comply with given the consequences that my actions have had. Gardner suggests that awards of general damages in tort might perform the function of acknowledging my irreparable failure to comply with the reasons to which I was subject.
The third dominant theme of FPLPL is the catholic nature of private law, where “catholic” is used in the old-fashioned sense of “universal”. Gardner is hostile to accounts of private law that see private law as focused on realising one particular value, such as autonomy. For Gardner, private law is much more ambitious than that: it is concerned to protect our engagement with value in general, in all its endlessly multifarious forms, by endowing us with security rights that protect the continuity of our lives. It is a mistake, Gardner argues, to think that just because the victim of a tort or a breach of contract is given a lot of freedom as to what to make of the fact that she has been wronged, it follows that private law is particularly concerned to protect and promote the victim's autonomy. The latitude given to the victim of a tort can easily be explained by reference to institutional concerns that the law not act counter-productively by sticking its nose in where it is not wanted, and to encourage people to settle their disputes without the need for a court hearing. Less pragmatically, this latitude may also be accounted for on the basis that if the commission of the wrong has disrupted the victim's pursuit of value then this “is an ideal occasion for her … to reevaluate where she will find her value” and it must be left up to her to decide how to do that.
I hugely enjoyed FPLPL, a few stylistic flaws aside (the matey attempts to draw the reader into a dialogue through endless “You may think” and “You may say” got very old very quickly, and the crude anti-Tory diatribe on p. 193 was in jarring contrast with the sensitively nuanced discussion that graced every other page of FPLPL). Yet, in the end, I am forced to play Nozick to Gardner's Rawls and explain why I do not think his account of private law can provide a satisfactory explanation of that area of law. Two problems in particular lead me to that conclusion.
The first is that if personal life is as Gardner sees it, then life is not providentially ordered in our favour. Instead, the world threatens to overwhelm us “to the point of madness” by exposing us to an infinite number of reasons to act, with the result that we have to save ourselves (or be saved by others) from insanity by, for example, “living an illusion … [whereby] we … imagine our goals to have, or at least treat them as having, more value than other goals we could have had”. (Given this point, it may be no accident that in a book littered with examples drawn from literature, TV and film to make his points, the lunatic protagonist of Curb Your Enthusiasm provides Gardner with his most fertile source of examples as to how personal life illuminates private law.) I do not believe that the world is so malign. Living a good life is not as difficult, and is not so much in need of outside assistance from the law (other than through the law's stopping other people from getting in the way of our living a good life), as Gardner seems to think. Of course, I cannot prove that my view of the way things are is more accurate than Gardner's; but I would bet that the judges who shaped the doctrines and institutions that are the focus of FPLPL came a lot closer to my view than Gardner's. And if they did, and would consequently have joined me in rejecting the idea that each of us is subject to an indefinite multiplicity of reasons, then much of FPLPL’s account of private law falls apart, in so far as that account purports (as it surely must) to explain why private law takes the shape it does.
The second problem hovers into view when we ask: “How many moral duties are we subject to?” It is clear that Gardner's answer would be “A lot” – and, indeed, we do have to be subject to a lot of moral duties for FPLPL’s account of private law to be plausible, because we are subject to a lot of private law duties. If private law were a lot more demanding than morality in terms of the duties it imposes on us, then FPLPL’s claim that private law seeks to help us comply with the reasons that already apply to us could not be supported. However, if we are subject to a lot of moral duties, the continuity thesis runs into trouble. This is because the more moral duties we are subject to, the more moral duties we are going to breach (and, for Gardner, a moral duty still counts as being breached even if the failure to comply with it was excused or even justified) and the more work we will be required to do under the continuity thesis to make up for the consequences of our breaches. The prospect of going mad again looms large, as we contemplate what it would be like to live a life spent constantly running around taking inventories of our daily sins and attempting to make up for them. Gardner attempts to defuse this problem by observing that “a reparative step that is called for according to the continuity thesis is not necessarily called for, all things considered” (emphasis added) and that “a duty of repair…is not an absolute duty. We should not be monomaniacs about it”. But if this is right, then private law remedies cannot be explained as giving effect to the continuity thesis, because private law does require us to be monomaniacs about repairing the consequences of our private law wrongs. So long as they are solvent, and have been sued relatively promptly, private law wrongdoers have to pay for their wrongs, regardless of their circumstances and what other calls might justifiably be made on their resources. Such a stringent approach can only be supported under a much stronger version of the continuity thesis, which can in turn only sensibly work in relation to a few, equally stringent, moral duties. In sum, it seems to me that Gardner is caught in a bind. Within the resources provided by FPLPL, he can either explain the proliferation of private law duties or the monomaniacal way private law responds to someone's committing a private law wrong, but he cannot do both.
Gardner himself acknowledges at the start of FPLPL that “the remedial apparatus of private law is … extremely hard to explain and defend” and that FPLPL is “testimony both to the scale of the challenges and the very limited progress I have made, so far, in meeting them”. But we are all in Gardner's debt for having made the attempt to scale this particular mountain. The questions, ideas and distinctions set out in FPLPL will provide private law scholars with huge intellectual stimulation for decades to come, as well as a model for how to write about private law.
