Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality

31 Pages Posted: 11 Sep 2017

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: September 7, 2017

Abstract

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call substantive equality.

[This is a sequel to Avihay Dorfman, “Private Law Exceptionalism? Part I: A Basic Difficulty with the Arguments from Bipolarity and Civil Recourse” (2016) 35 Law & Philosophy 165.]

Keywords: equality, justice, private law, corrective justice, relational justice

Suggested Citation

Dorfman, Avihay, Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality (September 7, 2017). Canadian Journal of Law and Jurisprudence, 2018, Available at SSRN: https://ssrn.com/abstract=3034145

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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