I. INTRODUCTION: LEGAL RIGHTS AND MORAL RIGHTS

Having outlined two different ways of articulating the tort of negligence, John Gardner explains that: “the way we render the ingredients of the tort matters for the defensibility of the regime of liability that it brings in its wake. The reason is that to defend the incidence of the liability one must first defend the assertion of the duty.” And defending the assertion of the duty—given that the law “stands or falls in its own moral legitimacy depending on whether it has the very moral authority that it claims”—involves the following: