This Essay uses Robert Nozick’s Anarchy, State, and Utopia as a springboard for examining the relationship between private law and the basic structure of society. Such an inquiry may seem odd, given that this book stands for a libertarian credo that questions the idea of such a normative structure in the first place. And yet, I hope to show that this is still a worthwhile pursuit because Nozick’s account of utopia as a framework for utopias captures a profound truth about private law.
His insight points to the normative underpinnings of private law, namely, to its irreducible role in upholding individual self-determination, and reveals its function in vindicating a robust conception of relational justice. These underpinnings are far removed from the libertarian foundations ascribed to private law not only by Nozick and other libertarians, but also by Kantians and many division-of-labor liberal egalitarians. Furthermore, they also require us to discard the conventional conceptions of property (as sole and despotic dominion) and of contract (as a means for delineating the boundaries of protected domains), which Nozick espouses. On the other hand, while these commitments have important distributive implications, they are also distinct from the considerations of justice in holdings that concern the institutions responsible for distributive justice.
Dagan, Hanoch, The Utopian Promise of Private Law (February 17, 2014).