Samuel Freeman

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.¹ 1.See David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022).Show More In recent papers, Samuel Scheffler and I have made similar arguments, though we have modestly departed from their views.² 2.Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Private Law and Rawls’s Principles of Justice, in Liberalism and Distributive Justice 167, 168 (2018) (arguing that Rawls’s principles apply to the private law).Show More 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.³ 3.Freeman, supra note 2, at 191–93 (arguing that in an unjust economy designed to maximally benefit the more rather than the less advantaged, the application of the difference principle to economic torts is a proper corrective to vast inequalities and economic injustices).Show More Blankfein-Tabachnick and Kordana (hereinafter “the Authors”) contest my argument, as well as my contention that Rawls’s difference principle requires maximizing the position of society’s less advantaged relative to the more advantaged, not their absolute position.⁴ 4.Blankfein-Tabachnick & Kordana, supra note 1, at 1683–87 (contending that Rawls’s difference principle is “a maximizing and consequentialist theory, if a constrained one,” and not, as I contend, “an intra-schemic relational principle” of reciprocity that is nonconsequentialist and nonmaximizing).Show More After a brief summary of my position, I discuss why I believe the difference principle, under Rawls’s final interpretation of it, is often not suitable for consistent application in determining personal tort liability and remedies, even though the principle can play a significant role in economic torts involving the violation of economic rights and liberties. I also discuss why the difference principle is best understood to require society to maximize the relative, not absolute, position of the least advantaged. I conclude with some remarks on Rawls’s own reservations regarding courts’ interpretation and enforcement of the difference principle, or any principle that structures the economy, including economic efficiency and utilitarian wealth maximization.

1.  See David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022). ↑
2.  Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Private Law and Rawls’s Principles of Justice, in Liberalism and Distributive Justice 167, 168 (2018) (arguing that Rawls’s principles apply to the private law). ↑
3.  Freeman, supra note 2, at 191–93 (arguing that in an unjust economy designed to maximally benefit the more rather than the less advantaged, the application of the difference principle to economic torts is a proper corrective to vast inequalities and economic injustices). ↑

4.  Blankfein-Tabachnick & Kordana, supra note 1, at 1683–87 (contending that Rawls’s difference principle is “a maximizing and consequentialist theory, if a constrained one,” and not, as I contend, “an intra-schemic relational principle” of reciprocity that is nonconsequentialist and nonmaximizing). ↑