The utopian promise of private law

This article uses Robert Nozick's account of utopia as a framework for utopias to examine the normative underpinnings of private law. Nozick's insight, I argue, points to private law's 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-labour liberal egalitarians. They 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. Private law's underlying normative commitments to both individual self-determination and relational justice also have important distributive implications. These implications, however, are distinct from the considerations of justice in holdings that concern the institutions responsible for distributive justice.