The Negligence Standard: Political Not Metaphysical

Date01 January 2017
Published date01 January 2017
AuthorJohn Gardner
DOIhttp://doi.org/10.1111/1468-2230.12240
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THE
MODERN LAW REVIEW
Volume 80 January 2017 No. 1
The Negligence Standard: Political Not Metaphysical
John Gardner
This contribution distinguishes two kinds of responsibility: the basic (or ‘metaphysical’) kind
that we all inescapably haveas functioning human beings; and the assignable (or ‘political’) kind
that connects each of us with some particular tasks, and not with others. Having explored some
differences between the two, and in particular the role of law’s authority in connection with
each, the discussion turns to the negligence standard, especially but not only as it figures in tort
law. Recently, several philosophers have attempted to find a role for the negligence standard in
the metaphysics of basic responsibility. This contribution resists that development and stands up
for the traditional lawyer’s view that the negligence standard belongs to the pliable politics of
assignable responsibility. Basic responsibility, it is argued, is fundamentally strict.
INSTITUTIONAL ACTIONS, ORDINARY REASONS
My title echoes that of a famous article by John Rawls.1But the main distinction
that I will be drawing and exploring in this lecture is not the one that Rawls had
in mind. Rawls sought to isolate, among all valid reasons for action, those that
are suitable to guide and assess the use of gover nmental, or perhaps morebroadly
institutional, power. He aimed to identify reasons that have a proper place, as he
sometimes put it, in ‘public justification’. The hallmark of public justification, as
Rawls saw it, is that it does not cleave to any particular ‘conception of the good’
or ‘comprehensive doctrine’. Rather, it has ecumenical appeal across a wide
range of such conceptions, namely the ones that Rawls dubbed ‘reasonable’.2
Rawls thought that this ecumenical appeal made public justification somehow
Senior Research Fellow, All Souls College, Oxford. This is the revised text of the 45th Chorley
Lecture delivered at the London School of Economics on 21 June 2016. I received many useful
comments and criticisms in conversations after the lecture. I also benefited from discussion of an
earlier draft at the University of Edinburgh Department of Philosophy, and from discussion of the
wider topic at a conference at the University of Birmingham School of Law. Special thanks (but no
assignment of responsibility) to Arash Abizadeh, Leo Boonzaier, Kathryn Lindeman, Ulrike Heuer,
Ori Herstein, Timothy Macklem, Mihaela Popa, Prince Saprai, Geoff Sayre-McCord and Alexandra
Whelan, and most especially to Matthew Chrisman and James Penner (who each gave me detailed
written comments).
1 J. Rawls, ‘Justice as Fairness: Political not Metaphysical’(1985) 14 Philosophy & Public Affairs 223.
2 For a short recapitulation of these ideas, see J. Rawls, ‘The Idea of Public Reason Revisited’
(1997) 64 University of Chicago Law Review 765, 786. Here Rawls speaks of ‘comprehensive
doctrines’ where, in ‘Justice as Fairness’ ibid, he had spoken of ‘conceptions of the good’.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(1) MLR 1–21
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Negligence Standard
less metaphysical than other kinds of justification. I have never been sure what
he meant.3Maybe he was using the word ‘metaphysical’ in what might be
called the ‘Glastonbury’ sense, to mean something like ‘mystical’. Maybe he
hoped to demystify the theory of sound governmental or institutional action
by demerging or abstracting it from the theory of sound action more generally.
If that was his ambition, history has not smiled upon him. There is little in
contemporary philosophy that more resembles an esoteric new age teaching
than the idea of a purely ‘political’ theory of politics, a ‘political liberalism’, of
the kind that Rawls bequeathed to us in his later work.4
As this remark already reveals, I am not among those who regard govern-
mental agents as inhabiting a world apart from the rest of us. Governmental
agents answer to all valid reasons for action, just like you and me. If some
claimed reason for action could never possibly contribute to the justification
of what a governmental agent does, then it is not a valid reason for action and
cannot contribute to the justification of what anyone does. Political morality, to
put it another way, is just ordinary morality as it bears on the circumstances in
which certain agents (certain officials and institutions) find themselves. These
circumstances may seem a world apart at first sight. Few of us have vast armies
to command, multi-million-pound healthcare budgets to spend, or a succession
of strangers parading before us who face losing their liberty or their children on
our say-so. Yet still these are, in the final analysis, but large-stakes examples of
the same kind of responsibilities that we all have as friends, employers, teachers,
neighbours, and so on. Public or private, individual or collective, personal or
institutional, in law or in love, in parliament or in the supermarket, all valid
reasons for action count.
It is true that they may count, among other things, in the assignment of
responsibilities. It is true that when we have responsibilities we have reasons to
concentrate on some reasons for action at the expense of others in connection
with our own actions. Such playing up and playing down of reasons is the
normal business of all rational life, or at least all human rational life – for
parents and volleyball teams as much as for police officers and constitutional
courts. Only rarely should one person attempt to attend even-handedly to all
the applicable reasons at once in her reasoning. Apart from anything else, doing
so would often be counterproductive. Focusing one’s attention on a subset of
the applicable reasons, or even relying on some simplified proxy reasons that
marshal and conceal the underlying mel´
ee of applicable reasons, is often a better
policy, with a lower error rate. That much was pointed out by Rawls himself in
earlier work.5He used it to explain the rational appeal of certain rules, including
responsibility-assignment rules, that lie at the heart of certain social practices.
It is, however, a long way from this early Rawlsian insight to the later Rawlsian
thesis that the theory of sound government (sound judging, sound legislating,
sound constitution-making, etc) can be demerged or abstracted from the theory
of sound action more generally. The earlier Rawlsian argument reveals a set
3 His attempt to explain appears in ‘Justice as Fairness’ ibid, 238-240.
4 See J. Gardner, ‘The Mysterious Case of the Reasonable Person’ (2001) 51 University of Toronto
Law Journal 273.
5 J. Rawls, ‘Two Concepts of Rules’ (1955) 64 Philosophical Review 3.
2C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(1) MLR 1–21

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