Private law has a peculiar status in recent political philosophy. It is often said that the law of property and contract establishes basic, pre-political rights that must constrain the activities of states. No less often, it is said that private law just is one of the activities of states, to be assessed in the same way as any other exercise of state power. This second approach has its roots in the utilitarian thought of Bentham and Mill, but in recent decades it has become home to the primary non-utilitarian account of private rights. Many of John Rawls’ most ardent admirers in the academy have sought to put his social contract theory foreword as an alternative to utilitarianism, while accepting the basic utilitarian perspective on private law as public law in disguise. My aim in this paper is to provide an alternative to these two prominent views. The alternative I will develop draws on Kant and Rawls. I will articulate Kant’s account of the nature and significance of private ordering in relation to freedom. The main part of my argument is concerned with the converse task of showing why private ordering requires public justice. I argue that the rule of law is a prerequisite to enforceable rights being consistent with individual freedom. Unless it issues from a public standpoint that all can share, the use of force subjects one person to the arbitrary choice of another. Turning once more to Rawls, I will argue that the best way of thinking about his emphasis on public provision of adequate rights and opportunities in parallel terms: they are the moral prerequisites for a shared public sphere, which is the precondition of legitimate enforcement of private rights.
Essay
Of Guns, Abortions, and the Unraveling Rule of Law
Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation’s history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.
I am unable to join in the jubilation. Heller represents a triumph for conservative lawyers. But it also represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.
In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.
Is As Ought: The Case of Contracts
A Response to Making and Keeping Contracts by Daniel Markovits.