Private Law Theory

INTRODUCTION
In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private law, including not just property and contract law, but also torts. In recent papers, Samuel Scheffler and I have made similar arguments, though we have modestly departed from their views. I contend that, while the difference principle applies to much of the private law of property and contract, it does not apply to all tort law. Rather, in tort law, the difference principle applies primarily to economic torts in unjust economic systems that do not satisfy Rawls’s difference principle in the first place ….

Samuel Freeman, A Response to David Blankfein-Tabachnick and Kevin A Kordana, ‘On Rawlsian Contractualism and the Private Law’, 110 Virginia Law Review 815 (12 May 2024)