From Personal Life to Private Law

247 Pages·2016·1.21 MB·English

by  John Gardner

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From Personal liFe
to Private law
From Personal Life to Private Law. John Gardner © John Gardner 2018. Published
2018 by Oxford University Press.
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From Personal liFe
to Private law
john gardner
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PREFACE
This book—n one of which has previously appeared in print— is
a descendant of my eponymous Quain Lectures, delivered at
University College London in 2014. One of those lectures was
itself descended, in part, from a public lecture hosted by the Law
and Philosophy Institute at Rutgers University in 2012. (The
logistics of that lecture furnished an extended illustration of its
thesis, retained here: see Chapter 3, section 3.) At the time of the
2014 lectures, of which there were three, I was drawn to the idea
of publishing them with only small improvements, still in their
easy-g oing lecture style. That was a pipe dream. Returning to the
lecture texts over the following months I saw that they contained,
in very sketchy form, ideas the full development of which might
take a decade or more. This book is not that full development.
It is a compromise between my instinct to get to the bottom of
a problem and my instinct to keep the problem engaging for my
audience. It includes, mainly in Chapters 2, 3, and 5, some frag-
ments of the lecture texts. But the main features inherited from
the lectures are these:  a relatively informal prose style (where
possible!); illustrations that tend towards the literary or the auto-
biographical; and relatively few footnotes. Alas, that has not pre-
vented the total number of words from growing threefold since
the 2014 drafts, and the complexity of argumentation increasing
proportionately with it.
Much of the expansion and enhancement is owed to discus-
sions with colleagues and friends, and to comments and ques-
tions at classes and seminars and workshops. There were intensive
seminars following the lectures at both Rutgers and UCL. As
the lectures slowly turned into the book, draft chapters were
put to the test in Oxford, Los Angeles, Nottingham, Ithaca,
and Jerusalem. It is not possible to list all those who played their
part in improving the book through contributions on these oc-
casions. I  am reduced to ofering wholesale thanks to all who
participated. However, I  can point to specifc contributions
from the following people, for whose generous eforts let me
ofer special appreciation:  Annalise Acorn, Aditi Bagchi, Chris
From Personal Life to Private Law. John Gardner © John Gardner 2018. Published
2018 by Oxford University Press.
vi
vi PreFace
Bennett, Yifat Bitton, Leo Boonzaier, Ben Brown, Jenny Brown,
Daniel Butt, Marta Pantaleon Diaz, Hasan Dindjer, Julia Driver,
James Edwards, Cécile Fabre, Andrew Gold, Kate Greasley, Les
Green, Ori Herstein, Gerry Johnstone, Greg Keating, George
Letsas, Ian Loader, Jules Holroyd, Doug Husak, Tim Macklem,
Andrei Marmor, Sandra Marshal, Mihaela Mihai, Rob Mulins,
LindaR adzik,J osephR az,A rthurR ipstein,C onnieR osati,C raig
Rotherham, Sam Schefer, Seana Shifrin, Sandy Steel, Jenny
Steele, John Tasioulas, Fred Wilmot- Smith, Grégoire Webber,
Alexandra Whelan, Jake Wojtowicz, and Ben Zipursky. Without
the input of these people, this would have been a shorter, more
prompt, and more readable book. But it would also have been a
book far less worthy of publication. For the many defciencies
that no doubt remain, I take ful responsibility, especialy where,
as so often, I failed to take good advice. That remark wil resonate
especialy with my long- sufering editors Alex Flach and Emma
Taylor, for whose numerous contributions I am also very grateful
indeed. They, as wel as Ben Brown and Jake Wojtowicz, kindly
read and commented on the whole fnal draft, which was a service
wel beyond the cal of duty.
Those reluctant celebrities of legal philosophy— Henrik (19),
Annika (15), and Audra (8)— have starring roles in some of my ex -
amples (see, for example, Chapter 3, section 5). For this project,
they and their ever- patient mother Jenny have been my most as -
siduous and efective teachers. In our house there is always plenty
of personal life going on, from the ardent to the zany. May that
be true in your house too, and may the joyless shadow of private
law never (or only very rarely) be cast upon it.
John Gardner
30 September 2017
1
Introduction
They murdered his wife. They destroyed his future.
1
Now they have to pay.
1. Three themes, and then a fourth
Even knowing nothing of the author’s work, it would not take
long for a commuter at Brighton railway station to work out that
Wilbur Smith’s new novel belongs to the Death Wish subgenre.
The backdrop shows a silhouetted lone fgure, striding into a vast
barren landscape below an ominous sky. ‘Now they have to pay’ is
not intended to suggest that the man is delivering an invoice. He
is out for blood. Predator promises to be a tale of ruthless, savage,
and, no doubt, extremely gratifying revenge.
Remove it from its place in a publisher’s publicity campaign,
however, and the haiku-l ike teaser could bring something dif-
ferent to mind. It could represent—i n very condensed form—a
summons, a statement of claim, the pleading used to begin court
proceedings in what I will call ‘private law’ cases. What is alleged
on behalf of the claimant is a wrong against him (‘they murdered
his wife’) and a loss to him associated with it (‘they destroyed his
future’). What is claimed, in light of the wrong and the loss, is a
remedy (‘now they have to pay’). Wrong, loss, remedy—t he liti-
gation equation, the trinity of torts, the alchemy of assumpsit.
It is intriguing that the language of private law—t he language
of debt, repayment, rectifcation, and so forth—i s also the lan-
guage of revenge. How is it that a three-l ine synopsis of the no
doubt gripping Predator could equally be a three-l ine synopsis of
the inevitably tedious Plaintif? Here is one link between the two.
Private law exists, in part, for the sublimation of vengeful feel-
ings. It is a central plank of the argument for having any law,
private or otherwise, that it cools heated reactions to actual and
1
Advance publicity for Wilbur Smith, Predator (HarperCollins 2016).
iL lanosre P mo rF irP ot e f v1 rend raG nho J © rend raG nho J . w aL et a 234ilbuP . dehs
1234inU d ro fxO y b visre .se rP yt
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2 From Personal liFe to Private law
alleged wrongdoing, that it substitutes its laborious rituals and
distractions for the horrors of the blood-f eud, the vendetta, the
duel, the lynching, and so forth. Strong arguments against private
revenge, then, provide strong arguments in favour of private law.
The two have an inverse relation. But a more intriguing question
is whether, to make a strong argument in favour of private law,
one frst needs to muster a strong argument in favour of revenge.
Is there a direct (non- inverse) relation between the two? Some
people think so. Getting one’s own back in the avenger’s sense,
they think, is the authentic moral blueprint for getting one’s own
back in the restitutionary or reparative sense. The hero of Plaintif
rightly takes his lead from the hero of Predator, albeit thankfully
2
with a cooler head and more measured expectations.
This strikes me as implausible, for two related reasons. First, the
sense in which the hero of Predator gets his own back is obscure. It
is surely metaphorical. His wife plainly does not return from the
dead. His satisfaction when he avenges her death is not, one as-
sumes, a resumption of the very same feelings that he had before
she was killed. His execution of the murderer is not literally the
extraction of a payment, for he does not literally receive it. The
key plotline is not of his fnding new love and reinstating con-
nubial bliss. For him, nothing goes back to how it was. Whereas
there is an ordinary literal sense, to be explored in some detail in
this book, in which the hero of Plaintif does get something back.
As his lawyer will explain, he is entitled in law to a sum of money
from the wrongdoer, calculated to restore him to ‘the same pos-
ition as he would have been in if he had not sustained the wrong
3
for which he is now getting his compensation or reparation.’ He
still does not get his wife back. But if her earnings were paying for
the penthouse and the safaris, he gets damages to cover the loss of
those. True, his losses are covered only ‘so far as money can do it’,
4
and in the circumstances that may not count for much. But, with
2
See Scott Hershovitz, ‘Tort as a Substitute for Revenge’ in John Oberdiek
(ed), Philosophical Foundations of the Law of Torts (Oxford University Press 2014).
3
Livingstone v Rawyards Coal Company (1880) 5 App Cas 25, at 39 (Lord
Blackburn).
4
Robinson v Harman [1848] 1 Exch 850, at 855 (Baron Parke).
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introduction 3
that proviso, what he gets back from the wrongdoer, he literally
does get back.
Secondly, it is very hard to justify revenge. Actually, it is hard
to justify even extremely mild punishment. For both revenge
and punishment involve the intentional infiction of sufering or
deprivation. If the person on the sharp end does not sufer and
is not deprived, the act of revenge or punishment has failed. It
is extremely hard to explain why anyone should aim to bring
extra sufering or deprivation into the world, especially in the
name of putting right sufering or deprivation already brought
5
about. Happily, one need not do so with remedial measures of
the kind that are characteristic of private law. Any sufering or
deprivation of the defendant here is but a side- efect of reparative
and restitutionary measures. Such measures are designed, not to
add new losses, but to reallocate losses which, thanks to the de-
fendant, are already faits accomplis. To make them succeed, the de-
fendant need not bear any new sufering or deprivation, or indeed
any sufering or deprivation at all. If he is insured, so much the
better; the deprivation will be spread thinly and will ideally go
unnoticed by everyone, so there will be no sufering. Could the
justifcation of such relatively innocuous measures in which there
need be no new deprivation, let alone sufering, possibly depend
on the justifcation of more noxious measures by which extra suf-
fering or deprivation is created? I doubt it.
This book has nothing much to say about the justifcation of
punishment, let alone about the justifcation of revenge. Predator
will not be our concern. Nor, for the most part, will Prosecutor, a
third instalment in our imaginary trilogy (in which the hero of
Predator is fnally arrested and indicted with the help, let us sup-
pose, of the scrupulous killjoy hero of Plaintif). I spent many years
thinking and writing about philosophical issues in criminal law,
while always remaining very unsure about how to justify punish-
ment, even when it takes the form of withholding pocket money
from youngsters or giving someone the cold shoulder at a party.
One big reason why I  stopped working on philosophical issues
in criminal law (around 2008) was that I had reached the point at
5
See my discussion of Hart’s difculties in the introduction to HLA Hart,
Punishment and Responsibility (2nd edn, Oxford University Press 2008).
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4 From Personal liFe to Private law
which, in my view, I could not proceed further without a more
secure sense of how to justify punitive responses and, indeed, a
more secure sense of how to justify the mysterious ‘blaming’ atti-
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tudes which seem to underlie punitive responses. What are they
all about? I was not sure where to start. Strangely, for a philoso-
pher of criminal law, I was not even sure that punitive responses
and blaming attitudes can be justifed.
Even now the same doubts remain. One big reason why I took
up more serious work on private law (from 2008 onwards) was
that I saw more prospect of making both moral peace and philo-
sophical progress with private law’s (as it seemed to me) less toxic
remedial apparatus. In particular, those mysterious blaming at-
titudes did not seem to be of the essence. I vaguely hoped that
I might come back to criminal law some day, armed with some
transferable insights from the study of private law. In Chapter 4
of this book there are some hints of possible directions for fur-
7
ther thought about punishment. But all that, I must confess, is
incidental. It is not the topic of the chapter. Rather, I am trying
to get to the bottom of a puzzle about so-c alled ‘general dam-
ages’ for torts and breaches of contract. The puzzle concerns the
longing to repair the irreparable. So, you see, I have come to grasp
over the years that the remedial apparatus of private law is itself
extremely hard to explain and defend. I had underestimated the
scale of the ethical and the philosophical challenges. This book is
testimony both to the scale of the challenges and the very limited
progress I have made, so far, in meeting them. I feel that with pri-
vate law I have only slightly bettered my frustrating attempts to
understand what is going on in criminal law.
The remedial apparatus of private law dominates the rather
complex middle chapters of the book, Chapters 3 and 4. They
focus on the ‘now they have to pay’ part of the Plaintif plot.
What counts as paying in the relevant sense? Why does it count as
6
I  shared and still share the bafement about blame expressed in Bernard
Williams, ‘Internal Reasons and the Obscurity of Blame’ in Williams, Making
Sense of Humanity (Routledge 1995). I do not share Williams’ diagnosis; the puzzle
remains even without Williams’ misguided ‘internalism’ about reasons.
7
Some of them have been fruitfully explored by Chris Bennett in The Apology
Ritual (Cambridge University Press 2008), although not to the point at which my
puzzlement evaporates.