Private Law Theory

Abstract:
This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (ie, distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the distinction is worthwhile and that this can only be accomplished by the introduction of positive allocation schemes.

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Claudio Michelon, Virtuous Circularity: Positive Law and Particular Justice. Ratio Juris, Volume 27, Issue 2, pages 271–287, June 2014. Article first published online: 19 MAY 2014. DOI: 10.1111/raju.12041.

First posted 2014-05-24 07:32:24