‘Kantian Justice and Aggregate Welfare’

Yitzhak Benbaji, ‘Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law’, 39 Law and Philosophy 473 (2020), available at SpringerLink. Is it permissible to take into account considerations of aggregate welfare, distributive justice, and others which concern the impact of the law on society as a whole in setting the content of private law rules? Certain Kantian theories – notably, Arthur Ripstein’s – seem to answer ‘no’: the only normative business of private law should be the realization of our innate right to freedom as independence. Benbaji’s article, ‘Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law’, seeks to show that a superior Kantian theory should answer ‘yes’, but only in so far as a legislator is choosing between private law systems which equally realize our innate right to freedom. In his view, the Kantian state’s duty to realize a private law that secures freedom has strict lexical priority over other non-freedom-related considerations … (more)

[Sandy Steel, JOTWELL, 13 May]

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