On Rawlsian Contractualism and the Private Law

Abstract

Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice. Simply put, for Rawlsianism, the private law was not thought to be the province of distributive concerns. In more academic terms, the private law is not properly understood to be subject to Rawls’s range-limited principles of justice. In this conventional view, the private law is not part of what Rawls describes as “the basic structure of society,” which is roughly limited to basic constitutional liberties and taxation and transfer. This view points to the conclusion that Rawlsian political philosophy— despite its lexically ordered, distributive demand that economic institutions are to be arranged to the maximal benefit of the least well-off—is stunningly neutral with respect to the economic arrangements and ordering of the private law. This thinking led to the conclusion that the private law, if it is to exist, may be justified by values or principles other than Rawls’s lexically ordered principles of justice, whether wealth-maximization, autonomy, or pre-conceived or even pre-political notions of property entitlement. We have argued that there is a flaw in this conventional approach. Our view has been well-received and change is upon the legal academy. A wide range of scholars have, at last, begun to reject the conventional view. But in our view, scholars have not always fully recognized what we take to be the full ramifications of the private law being constructed by distributive principles. As we say, academic paradigm shifts are rare; being at the center of one is rarer still. This piece continues the dialogue that proceeds at the heights of the legal academy. In what follows, we aim to discuss our position regarding Rawlsian private law while engaging with scholars who have further developed this complex debate. Ultimately, we hold that, despite the purported complications, there is, as we path-breakingly argue, a Rawlsian account of the private law.

Keywords: Taxation, Tax, Private Law, Kaplow and Shavell, Scheffler, Freeman, Keating, Ripstein, Rawls, Distribution, Tort, Contract, Property, Law and Economics, Entitlements, Consent, Equality, Egalitarianism, Wealth Maximization, Basic Structure, Fairness, Rawls and Private Law

JEL Classification: k10, K11, K12, K13