Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law

Yitzhak Benbaji*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

The Kantian theory of private law, as Ernest Weinrib and Arthur Ripstein have developed it over the last two decades, is based on a fundamental normative truth, viz., no person is subordinate or superior to another person. Kantians construe any attempt to understand and justify the distribution of the rights-claims and rights-liberties that constitute private law in terms of aggregate welfare and/or distributive justice, as a deep category mistake. This essay outlines a ‘semi-Kantian’ theory of private law, which is like Kant’s in that it understands private law as a means of instituting and protecting private freedom. Yet, semi-Kantians insist that the choice between different private law programs, which respect private freedom equally well, can at times be justified by considerations of aggregate welfare and distributive justice, as well as other considerations that concern the impact on society as a whole.

Original languageEnglish
Pages (from-to)473-501
Number of pages29
JournalLaw and Philosophy
Volume39
Issue number5
DOIs
StatePublished - 1 Oct 2020

Funding

FundersFunder number
Israeli Research Foundation396/18

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