A. Preventive and Non-Preventive, Forward and Backward Looking.
The first reason why we ought to accept the distinction is that it allows us to clarify the debate about whether it is justifiable to impose secondary duties on those who have breached their primary duty to avoid committing a wrong. In order to explain this, I must introduce some further terminology. Duties whose function is, at least in part, to avoid some state are
preventive duties. Preventive duties can be divided into two groups: first-person preventive
and third-person preventive. First-person preventive duties require an agent to avoid causing
some state. Third-person preventive duties require an agent to act so that some state is avoided, even if that agent would not have caused it. Duties not to harm or commit wrongs are first-person preventive as they require an agent to avoid causing one of these detrimental states. A duty to save a drowning child (which one is not causally responsible for
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endangering) is third-person preventive as it is designed to avoid an outcome, but one that the duty-bound agent would not have caused.
Duties are forward-looking if they are directed at some state that will occur in the future or has already begun to occur but will continue into the future. So if D punches V in the face, causing her some transient pain but not placing her in an ongoing harmed state, any corrective duty D owes will be backward-looking. If the punch breaks V’s nose, placing her in an ongoing harmed state that requires some intervention, a duty to repair V’s nose will be forward-looking as it responds to a state that continues into the future. Alternatively, if D exposes V to noxious dust that will cause her to develop cancer in five years, a duty in response to this will be forward-looking as development of the cancer will be a new state beginning at a future date. As before, we can also distinguish between forward-looking duties that are directed at states for which the duty-bound agent is causally responsible, and those that are directed at states for which she is not.
All preventive duties are forward-looking, since it is impossible to avoid a past state. However, not all forward-looking duties are preventive. If a future state cannot be avoided there can be no preventive duty requiring some agent to avoid it, but there may still be a forward-looking duty to do something else in response to the unavoidable future state, as there is in the case where V’s exposure to noxious dust will cause her to develop cancer. In this case D may have a duty to give V a different good, such as a sum of money, in lieu of averting the threat. Primary duties are both preventive and forward-looking. They are preventive as they require us to avoid committing wrongs, and since they are preventive they are also forward-looking. Negatory duties are also preventive since they require us to avoid the continuation of some detrimental state by negating it, and since they are preventive they are also forward-looking. Counterbalancing duties are never preventive as they do not seek avoid harm. But they can be forward-looking since they may seek to counterbalance a future state that cannot be avoided. They may also be backward-looking if they seek to counterbalance a past state.
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The close connection between primary and negatory duties is notable. Suppose D wrongfully causes V to be in a specific harmed state, H, at T1. She cannot now fulfil her primary duty not to put V in H, but she can fulfil a very similar one. She can fulfil a duty not to cause V to be in H at T2, where T2 is the earliest point at which she is able to negate the effects of her wrong. If she fails to do this, she will have caused V to be in H at T2. The only difference between the descriptions of these duties is temporal. Both duties are first-person preventive as they require D to avoid causing V to be in H, albeit at different times. We might therefore think of negatory duties as instances of general duties to avoid harming others. Similarly, we might think of them as instances of general duties not to wrong others, since once a person suffers a wrongful harm the wrongdoer commits a further wrong if she fails to fulfil her corrective duties. Since, unlike primary and negatory duties, counterbalancing duties do not prevent detrimental states, the latter cannot be seen as instances of duties to avoid harms or wrongs. It is only when a harm is irrevocable or unavoidable that a benefit must be provided to counterbalance it. But as noted above, although counterbalancing duties are not preventive, they may, and often do, respond to
future harm and so are forward-looking.
B. The Justifiability of Secondary Duties
With these details in place, we can identify a few confusions inherent in the debate about whether imposing secondary duties is justifiable. The breach of a primary duty is often held to ground a secondary duty. According to these views, imposing such a duty is the next best way to uphold the right that was violated, so the justification is ‘carried over’ from the primary duty. For example, Stevens argues that “the secondary obligation to pay money imposed upon the wrongdoer can be seen as the law's attempt to reach the ‘next best’
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position to the wrong not having been committed by him in the first place”.12
Similarly, Weinrib claims that “with the materialization of wrongful injury, the only way the defendant can discharge his or her obligation respecting the plaintiff’s right is to undo the effects of the breach of duty”.13
As John Gardner has suggested, these views should not describe the initial breach as a mere condition of a secondary duty, as this fails to capture the justificatory relationship between them. A secondary duty is imposed if and because a primary duty has been breached – the breach of a primary duty is often necessary and sufficient to justify a secondary duty.14
The assumption that a breach is necessary appears to follow from the fact that primary and secondary duties are fundamentally distinct, albeit closely related. Otherwise, secondary duties might need no greater justification than primary duties. But as indicated above, one category of secondary duties – negatory duties – shares some properties with primary duties. More specifically, many primary and negatory duties are first-personal and preventive. They are designed to prevent either the initial occurrence or the continuation of a detrimental state caused by an agent. Perhaps, therefore, it is sufficient to ground a negatory duty that, having caused V to be in H at T1, D will cause V to be in H at T2 unless she removes H. Since V’s harmed state is ongoing, only some of the overall costs have been incurred, and the potential costs may ground a negatory duty, the fulfilment of which will avert those costs, in the same way they ground a primary duty to avoid causing V to be in H in the first place. This depends on what role the preventiveness of primary and negatory duties plays in their justification.
12
Robert Stevens, Torts and Rights, p. 59. See also Arthur Ripstein, “As If It Had Never Happened”, p. 1968
13
Ernest Weinrib, The Idea of Private Law, p. 135. 14
See John Gardner, “Backwards and Forwards with Tort Law” in Law and Social Justice, Eds., J. Keim-Campbell, M. O'Rourke & D. Shier, MIT Press, (2005), pp. 24 – 31.
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I defined a secondary duty as one that prescribes a corrective measure in response to a detrimental state caused by the breach of a primary duty. Negatory duties sometimes fit this description, so on this model they are classed assecondary. The truth, however, is that they do not fit simply into this binary scheme. The properties of these duties with potential moral relevance are not uniformly distributed across all those labelled ‘secondary’. This is a problem, since the debate about their justification is framed in terms of this scheme. The key question is really this: precisely which features of secondary duties are thought to pose a special justificatory problem? The fact that primary duties are preventive cannot explain why negatory duties require special justification, since these are also preventive. Another thought is that whilst all primary duties are forward-looking, secondary duties are backward- looking. But again, this is a misunderstanding. Negatory duties, like primary duties, are preventive and therefore forward-looking. Counterbalancing duties, though not preventive,
can be forward looking if they are designed to counterbalance an event that will unavoidably occur in the future, as in the case where a victim develops latent cancer.
To put the point another way, if imposing preventive duties is more justifiable,
ceteris paribus, than non-preventive duties, then imposing both primary and negatory duties is more justifiable than counterbalancing duties. If imposing forward-looking duties is more justifiable, ceteris paribus, than backward-looking duties, then imposing primary, negatory and forward-looking counterbalancing duties is more justifiable than backward-looking counterbalancing duties. Neither of these distinctions – between preventive and non- preventive, and forward-looking and backward-looking duties – explains why, on the traditional understanding, secondary duties require special justification.
There are, however, two important differences between primary duties on the one hand and negatory and counterbalancing duties on the other. First, it is often more
burdensome to fulfil the latter than the former. Most wrongs are avoidable without a significant degree of effort. One can avoid breaching a duty of care in negligence by using a reasonable degree of care and skill. If this duty is breached, the corrective obligations that follow may be much more costly to fulfil. If the victim suffers a broken arm and chronic
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discomfort, repairing the break and counterbalancing the discomfort may cost the wrongdoer substantially more than it would have cost to meet her standard of care. It must be remembered, however, that this is typically rather than necessarily true: we can imagine a careless billionaire for whom counterbalancing harm ex post is less burdensome than meeting a reasonable standard of conduct ex ante.
Second, primary duties are generally negative whereas negatory and counterbalancing duties are positive. In other words, primary obligations do not usually impose ends on the duty-bearer – they merely require her to refrain from performing some act, X, leaving her free to do anything but X. Corrective duties require the duty-bearer to set as her end the negation or counterbalancing of some detrimental state. Perhaps these two features explain the way the justificatory issue has traditionally been framed.
I have outlined four separate features of corrective duties: preventiveness, temporal orientation, costliness and the distinction between negative and positive duties. All of these features may have some moral significance, although assessing this is a difficult normative inquiry that I have not attempted to undertake. The point I want to reiterate is that these potentially significant properties are not uniformly distributed between negatory and counterbalancing duties. Referring generally to corrective duties will obscure this important fact, so recognising the distinction is a prerequisite to assessing the normative significance of these duties.