Private Law Theory

ABSTRACT
The concept of relational duty figures prominently in standard rights-based theories of tort law. The primary obligations that anyone owes under tort law, on this view, are owed to another. A corollary of this is that tortious conduct is not conduct that is merely wrong, but conduct that wrongs. The relationality of duty in tort law and so of tortious wrongdoing, on this picture, accounts for the definitive bilateral or bipolar plaintiff-defendant structure of tort litigation. Indeed, a strong case can be made that the notion of relational duty is fundamental to any alternative to an economic approach to tort law, which does not—indeed cannot—accept relational duties and wrongs. Just what relationally consists in, however, remains controversial. In this paper, I argue that Gregory Keating’s attempt to defend an omnilateral conception of relationality does not succeed, and I make the case for a more personal, bilateral conception of relationality.

More specifically, this paper defends a bilateral or “personal” conception of relationality in tort law. It argues that a personalized conception of duty and civil wrongs is compatible with the forward-looking re-orientation of tort theory, is interpretively defensible, and is normatively superior to a de-personalized form of relationality. This chapter begins by resisting the conceptual argument that the wrong of negligence is not an affront to anyone in particular. It goes on to explore the value of personhood and argues that only a personalized conception of duty respects the autonomy of persons as agents. Finally, this chapter defends the value of the pattern of relations that only a personalized conception of duty makes possible.

Oberdiek, John, It’s Something Personal: On the Relationality of Duty and Civil Wrongs (March 19, 2020) in Civil Wrongs and Justice in Private Law (Oxford University Press 2020), Paul B Miller and John Oberdiek (eds); Rutgers Law School Research Paper Forthcoming.