The Utopian Promise of Private Law

University of Toronto Law Journal (2016, Forthcoming)

26 Pages Posted: 18 Feb 2014 Last revised: 2 Mar 2016

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Date Written: February 17, 2014

Abstract

This Essay uses Robert Nozick’s account of utopia as a framework for utopias to examine the normative underpinnings of private law. Nozick’s insight, I argue, points to private law’s irreducible role in upholding individual self-determination, and reveals its function in vindicating a robust conception of relational justice. These underpinnings are far removed from the libertarian foundations ascribed to private law not only by Nozick and other libertarians, but also by Kantians and many division-of-labor liberal egalitarians. They thus require us to discard the conventional conceptions of property (as sole and despotic dominion) and of contract (as a means for delineating the boundaries of protected domains), which Nozick espouses. Private law’s underlying normative commitments to both individual self-determination and relational justice also have important distributive implications. These implications, however, are distinct from the considerations of justice in holdings which concern the institutions responsible for distributive justice.

Suggested Citation

Dagan, Hanoch, The Utopian Promise of Private Law (February 17, 2014). University of Toronto Law Journal (2016, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2397395 or http://dx.doi.org/10.2139/ssrn.2397395

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

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