Gardner on Duties in Tort

Abstract Gardner often endorses the claim that tort liability is conditional upon a wrong (or, equivalently, a breach of duty) by the defendant. But it is not obvious why. According to the Razian account of duties that Gardner endorses, breaches of duty lack the features that other tort writers regard as so important: breaching a duty does not entail that one has behaved objectionably, all things considered; it does not entail that one has done something very serious morally. Hence the usual reasons for endorsing the claim would not avail, or appeal to, Gardner. Why did he endorse it? And was he right to? First, the chapter explains why these questions are worth asking. In the process, the chapter brings out some features of Gardner’s tort scholarship which make the answers non-obvious. Second, the chapter assesses Gardner’s argument for the claim that torts are wrongs and offers some criticisms of it. The chapter concludes that his argument is unsound but nevertheless illuminating.