Private Law in the Service of Distributive Aims: Three Classic Positions

Tommi Ralli

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Private Law in the Service of Distributive Aims: Three Classic Positions

In: Law, Morality and Power: Global Perspectives on Violence and the State

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Tommi Ralli

Tommi Ralli
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Type:: Chapter

Pages:: 35–41

DOI:: https://doi.org/10.1163/9781848880412_006

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This paper juxtaposes three major late-twentieth-century approaches to the subject of distributive justice by a philosopher, a lawyer, and two economists. Rawls (1978) proposes a division of labour between the Basic Structure and the law of contract ‘and so on.’ But his reasons for the separation are empirical, such as the simplicity and efficiency of alternative rules. Not all rules of private law need be so excluded, outside the Basic Structure, at all times. Supporting the general empirical approach, Kronman (1980) asks whether a particular inequality in question in a contract-law case is justified in Rawlsian terms. Kaplow and Shavell (1994) oppose the preceding case-by-case empiricism. They argue that distributive aims are always achievable more efficiently by means of taxes and transfers than by other, including private-law, rules. Their analysis is logically flawed, though, because it implies that redistributive non-tax-and-transfer rules increase social costs in activities that would otherwise be efficiently regulated, while it assigns redistribution to tax-and-transfer rules unburdened by such efficiency concern. As the tautologous argument does not show that any redistributive non-tax-andtransfer rule would be undesirable, we remain in the state of knowledge indicated by the previous, empirical and procedural approaches.

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Law, Morality and Power: Global Perspectives on Violence and the State

E-Book ISBN:: 9781848880412

Publisher:: Brill

Print Publication Date:: 23 Apr 2010

Subjects
- Philosophy
  - Ethics & Moral Philosophy
  - Social & Political Philosophy

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Private Law in the Service of Distributive Aims: Three Classic Positions

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Law, Morality and Power: Global Perspectives on Violence and the State

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