In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “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.” (P. 1657.) Now, private law scholars—in tort, but also in contract—are coming to think that these bodies of law are parts of what Rawls called “the basic structure of society.” Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included.
Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the “privateness” of private law threatens to trivialize fundamental legal fields. Blankfein-Tabachnick and Kordana are quite right to insist that contract, property, and tort engage fundamental questions of power and justice and that theories of private law must engage these questions. And turning private law theory in this direction might breed fruitful interaction with very different kinds of tort scholarship, such as the “social justice tort theory,” championed by Martha Chamallas and Sarah Swan. That scholarship, too, insists that tort law articulates basic terms of social interaction and therefore does (or fails to do) “social justice.”1
Blankfein-Tabachnick and Kordana’s article is especially relevant to tort scholarship because tort is the private law field where some (though not all) theoretically inclined legal scholars have been most adamantly committed to the separation of their subject from basic principles of justice. “[P]rivate law,” Ernest Weinrib once remarked, is “just like love.” “Explaining love in terms of extrinsic ends is necessarily a mistake because love does not shine in our lives with the borrowed light of an extrinsic end. Love is its own end . . . in this respect, private law is just like love.”2 Strikingly, this separation of private law (preeminently, tort law) from basic justice has been one of the few points of agreement between corrective justice theorists and economists. In influential articles and an important book, Louis Kaplow and Steve Shavell argued “that the private law should be sanitized of egalitarian or equity-oriented values. The . . . idea was that any desired egalitarian moves could be achieved more efficiently through systems of income taxation and transfer than through any egalitarian alterations in private law rules.” (P. 1658.)
Private law should maximize wealth and leave equity to the tax system. Tort, for example, should pursue optimal accident avoidance and insurance and leave everything else aside. This division of labor between tort and taxation is, they argue, the institutional recipe for promoting human welfare as well as possible.
For the past forty years or so, it has seemed clear to theorists of private law that private law is distinct from the basic structure of society governed by Rawls’s principles of equal basic liberties, equal opportunity, and the difference principle. Directly applying Rawls’ difference principle to tort damages, for instance, would be a poor way of pursuing either distributive or corrective justice. Tort law, surely, must operate by its own special principles of responsibility and repair.
Lately, though, this consensus has been breaking down. Private law scholars have begun to rethink the matter. In part, to put matters in my own words, this rethinking is a reaction to the threat of trivialization implicit in the view that tort law is thoroughly “private.” Tort lawsuits begin to look like something of importance only to the parties. But this seems wrong. Private law plays a fundamental role in our social life. It governs the relations and interactions among persons in civil society as they go about pursuing the aims and aspirations that give their lives meaning. Tort—or some New Zealand style replacement for it—is a fundamental and necessary institution.
People need to have their urgent interests protected from interference and impairment at each other’s hands. Without some such protection, we would not really have left the state of nature. In the view of the authors, tort is, in Rawlsian terms, “one of the . . . institutions that materially affect citizens’ life prospects, such as basic constitutional liberties, security of the person, the system of taxation and transfer, schooling, and fiscal policy.” (Pp.1659-60.) It is part of “the basic structure of society.” (id.) Upon reflection, this contrary truth also seems plainly correct. Property, tort, and contract were, for instance, fundamental building blocks of the laissez-faire economy of the late nineteenth century.
We are, then, in a puzzling situation. On the one hand, Rawls’s principles of justice don’t apply directly to private law. We can’t, say, use the difference principle to determine who should win tort lawsuits, or to calculate damage awards. On the other hand, we can’t just say that it does not matter if standard ways of computing tort damages reproduce and reinforce historic discrimination along race and gender lines. Tort law must work in ways that are congruent with our fundamental commitments of justice. It should not subvert them.
In On Rawlsian Contractualism and the Private Law, the authors tackle this conundrum. They entertain three possibilities: (1) strong distributivism; (2) weak distributivism; and (3) incompleteness. Strong distributivism holds “that the private law ‘should be designed solely to serve the distributive purposes of the difference principle.’” (P. 1663, quoting Scheffler.3) Following the lead of philosopher Samuel Scheffler (from whom they take the three possibilities), Blankfein-Tabachnick and Kordana reject this view. It is incompatible with the priority of equal basic liberties and equality of opportunity. Weak distributivism calls for a conception of private law that avoids “worsening the economic position of the least favoured members of society.” (P. 1664.) Incompleteness holds that there are “aspects of a sufficiently satisfactory private law, and perhaps criminal law, that are just not about distributive justice.” (P. 1667.) For Blankfein-Tabachnick & Kordana, the contest is between these latter two views, and the subordinate questions that they raise—whether, for instance, the difference principle is a principle of reciprocity or a maximizing principle.
On Rawlsian Contractualism and the Private Law’s discussion of these matters is rich and sophisticated, although understandably abstract. Even better, the article opens up important new avenues of thought for thinking concretely about issues in the law of torts. The physical and psychological integrity of the person, for example, is a fundamental concern of both Rawlsian justice and tort. Fundamental questions in tort law directly raise questions of justice that are both basic, and distinctive to the legal field.
Whether product accidents should be controlled by contract law or tort law, and what duties owners of real property owe to entrants on their land, are two cases in point. To choose contract over tort to govern product-related risks of physical harm may jeopardize the safety of those who can only bring to bear relatively limited purchasing and bargaining power. Preferring contract to tort may also undervalue the urgency of our interest in the physical integrity of our persons and overvalue our interest in tailoring our product purchases to our tastes. In the context of landowner liability, to prefer the old regime of the status categories over the new regime with its default duty of reasonable care may overvalue our interest in the free use of our real property and undervalue our interest in the safety of our persons.
In a similar vein, to leave our privacy wholly unprotected may deprive us of one of the conditions essential to our psychological development as beings whose sense of self is not wholly exhausted by our presentations of ourselves to others. To deny any protection to our emotional integrity is to leave an interest as urgent as the physical integrity that tort law has long taken seriously utterly undefended. Because security against various forms of unacceptable interference by others is an essential institutional condition for us to be able to pursue our conceptions of the good as we see fit, tort is both an important institution and one that addresses distinctive questions of basic justice. And, as I noted at the outset of this jot, recognizing that private law engages fundamental questions of justice opens up the possibility of connecting philosophically sophisticated work on the normative content of private law with various forms of “critical” scholarship that emphasize the ways in which private law all too often works injustices.
Most of this work, to be sure, has yet to be done. The “paradigm shift” that Blankfein-Tabachnick & Kordana discern is an incipient one. But, as they rightly assert and argue, the change of mind about the relation of tort law (and contract law) to basic justice is real and important. It holds out the promise of revitalizing private law theory and scholarship by reconnecting them with urgent questions of right and responsibility. Blankfein-Tabachnick & Kordana have spent a number of years crying in the wilderness.4 Now, they have caught the academy’s attention, and for good reason.
- See, e.g., Martha Chamallas, Social Justice Tort Theory, 14 J. Tort L. 309, 332 (2021); Sarah L. Swan, Tort Law and Feminism, in Oxford Handbook on Feminism and Law in the U.S. 651 (2022).
- Ernest Weinrib, The Idea of Private Law 6 (2012).
- Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 222 (2015).
- See, e.g., David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017); Kevin A. Kordana & David H. Tabachnick, Taxation, the Private Law, and Distributive Justice, 23 Soc. Phil. & Pol’y 142, 163 (2006); Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls and Tort as Corrective Justice, 92 Va. L. Rev. 1279, 1291–92 (2006).
