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The Rawlsian View of Private Ordering

Social Philosophy and Policy, Vol. 25, pp. 288-307, 2008

20 Pages Posted: 20 Jun 2008 Last revised: 15 Jan 2014

Kevin A. Kordana

University of Virginia - School of Law

David Blankfein-Tabachnick

Michigan State University College of Law

Abstract

The Rawlsian texts appear not to be consistent with regard to the status of the right of freedom of association. Interestingly, Rawls's early work omits mention of freedom of association as among the basic liberties, but in his later work he explicitly includes freedom of association as among the basic liberties. However, freedom of association would appear to have an economic component as well (e.g., the right to form a firm). If one turns to such "private ordering" (e.g., contract, partnership, and corporate law), we find a similar ambiguity in the Rawlsian texts, as well as sharp divisions in the contemporary literature on Rawlsianism. This ambiguity has engendered widespread confusion over the scope of the two principles of justice - leading to the contemporary dispute over the breadth of what Rawls calls the "basic structure" and the question of whether the principles of justice are properly understood to govern private ordering. There is significant disagreement over the breadth of Rawls's basic structure - one aspect is whether the principles of justice apply to the private law. In a controversial passage in Political Liberalism Rawls addresses this question. This passage has, however, led commentators to reach divergent conclusions. We argue that this disagreement is explained by an instructive confusion in the passage over the distinction between what we characterize as "pre-institutional" and "post-institutional" freedom (vis-a-vis contract and property). The passage, we argue, illicitly shifts from invoking the post-institutional sense of "freedom" to the pre-institutional sense, thereby causing significant though understandable disagreement. Rawls's lapse into the pre-institutional conception of "freedom" provides interpretive grounds for the narrow understanding of the basic structure. If Rawls, however, had invoked the sense of "freedom" to which he is entitled at this stage of his theory - the post-institutional conception - such disagreement need not have arisen.

Keywords: Rawls, Private Law, Property, contract, tort, theory of the firm, private ordering, freedom of association, basic structure

Suggested Citation

Kordana, Kevin A. and Blankfein-Tabachnick, David, The Rawlsian View of Private Ordering. Social Philosophy and Policy, Vol. 25, pp. 288-307, 2008. Available at SSRN: https://ssrn.com/abstract=1147842

Kevin A. Kordana

University of Virginia - School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
804-924-3680 (Phone)
804-924-7536 (Fax)

David Blankfein-Tabachnick (Contact Author)

Michigan State University College of Law ( email )

648 N Shaw Ln
East Lansing, MI 48824
United States

HOME PAGE: http://www.law.msu.edu/faculty_staff/profile.php?prof=924

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