Private Law Theory

ABSTRACT
For Gardner, questions of justice arose in the context of competitive claims to some good, and were ‘distinctive in being allocative questions’, or questions about ‘who is to get how much of what and why’. According to Gardner, these questions arose uniquely at the remedial stage of a private law enquiry. I argue that Gardner was correct to emphasise that there is a ‘normative distance’ to be travelled from the fact of failure to perform some original duty to the imposition of a remedial burden, but that we need not travel this distance via a distinct frame of theoretical reference concerned with interpersonal (re)allocation. To the contrary, the theory of justice as allocation can obscure considerations that are relevant to the questions of whether legal intervention is justifiable, and what form it should take.

Dancy, Tatiana, Gardner on Justice (January 7, 2022) in S Steel and H Psarras (eds), Private Law and Practical Reason (OUP 2023).