Dan Priel, ‘Private Law: Commutative or Distributive?’

Allan Beever argues in his new book that there are two distinct forms of justice — commutative and distributive — and that we have forgotten about commutative justice, the form of justice that governs our interpersonal relationships. Consequently, we erroneously think of private law from the perspective of distributive justice, the form of justice that governs our relation to the state. Forgetting commutative justice, he claims, has been a serious philosophical mistake with potentially grave practical implications. Theoretically, says Beever, the modern view is wrong, because politics and distributive justice are grounded in our pre-political, interpersonal relationships. In other words, commutative justice is logically prior to distributive justice. Practically, the dominance of the mistaken modern view has led us to think of people too much as part of a collective and not as individuals and to over-emphasize the significance of the state. In this essay I challenge all of Beever’s claims. I argue that there is no basis for the claim that people these days have forgotten about interpersonal relationships, nor of the claim that interpersonal relationship are the foundation for politics. I challenge Beever’s historical account, arguing both that Beever has failed to provide any convincing argument for why commutative justice has been forgotten, and that there are historical facts that explain the changes in the structure of private law that he ignored. I then turn to Beever’s theoretical claims and argue that Beever’s view about the independence of commutative and distributive justice are indefensible. Even accepting pre-political norms of commutative justice as the foundation of politics, it does not follow that contemporary contract law should reflect such norms. Finally, I argue that contrary to Beever’s claim that commutative justice is apolitical, Beever’s views reveal a clear political bent, which Beever never defends.

Priel, Dan, Private Law: Commutative or Distributive? (November 26, 2013). Forthcoming Modern Law Review, Volume 77 (2014); Osgoode CLPE Research Paper No. 56/2013.

First posted 2013-11-28 08:23:25

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