Private Law Theory

ABSTRACT
An influential and troubling objection to contractualism and rule consequentialism is that they cannot account for the fact that sometimes actual, imperfect social practices – such as, for example, our property conventions – can determine what we are morally required to do. My main aim in this paper is to argue that this objection is mistaken because it relies on an implausible interpretation of the possible worlds in which different candidate principles are to be assessed in contractualist and rule consequentialist moral reasoning. Rather than imagining possible worlds in which we have always lived under these principles, we should imagine worlds in which we have switched to living under these principles from our once prevailing social morality. My secondary aim is to defend the account of natural property rights that emerges from this ‘switch interpretation’. The switch interpretation provides the natural rights theory of property with the resources to overcome two challenges that some conventionalists have taken to be decisive – namely, that the natural rights theory can neither explain why historic injustice can sometimes be superseded nor why the conventions in place in our community sometimes have the authority to make our rights to certain resources determinate.

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Aaron Salomon, Moral Duties and Imperfect Social Norms, Social Theory and Practice, volume 52, issue 3, 501-525 (July 2026).