Dagan and Dorfman, ‘Just Relationships’

Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The traditional position is conceptually misguided and normatively disap­pointing; the critical position confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus denying private law’s inherent value.

This Article seeks to break the impasse between these two positions by offering an innovative account of the values that should, and to some extent already do, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitment to self-determination and substantive equality. A liberal private law establishes frameworks of respectful interaction conducive to self-determining individuals. These frameworks are indispensable for a society in which individuals recognize each other as genuinely free and equal agents.

Hanoch Dagan and Avihay Dorfman, Just Relationships, Columbia Law Review vol 116 no 6.

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