It is not every day that we are presented with a new theory of private law that invites us to see the project of private light in a new way.
In a move familiar to philosophers of contract and tort but perhaps surprising to American scholars of those subjects from other traditions and methods, Hanoch Dagan and Avihay Dorfman take “private law” as the operative unit of analysis. Like theories of corrective justice, they aim to identify foundational principles that apply across contract and tort. The language of “relationality” is also familiar from the corrective justice literature. However, Dagan and Dorfman offer us a new way to understand the moral demands that flow from ordinary relationships.
Corrective justice theories conceive of the relationships whose justice private law aims to repair in thin terms. The relationships at issue in corrective justice typically consist of only fleeting interactions. Dagan and Dorfman are more ambitious in the role that they assign private law: It should aim to realize substantive equality between people. It should do this by demanding that people show “reciprocal respect for substantive equality.” Equality understood in this way does not require that everyone has the same income or resources. But relational equality requires that we relate to each other as equals in a more robust—and demanding—sense than does the formal equality of corrective justice. Dagan and Dorfman argue that, when we deal with other people, we must take seriously what they need for self-determination and we must mutually support each other in securing the conditions for self-determination. The justice of even a fleeting interaction may turn on the ground projects of the people involved, and what they need from each other.
Two related features of their account are especially important departures from most existing accounts of private law. First, in their view, principles of equality do not just constrain the state in its allocative role; substantive equality, as they understand it, binds individuals horizontally and informs how we may treat each other independent of distributive justice. Second, because relational justice is strongly horizontal and does not rely on the state and its obligations to promote justice to explain the duties of private law, relational justice does not depend on any particular state. In fact, it constrains states and binds individuals acting across state boundaries.
One of the most interesting examples against which we can test the intuitive appeal of relational justice is the minimum wage. It is likely that raising the minimum wage results in some increase in unemployment. What relevance does this have to how we set the minimum wage? On a view, like my own, that regards contract regulation as a means by which we aim to give people access to the resources they need to pursue their various life projects, the unemployment effects of a minimum wage are cautionary. Where or when it is really the case that the most vulnerable social group fares worse under a proposed minimum wage, that expected effect counsels against the policy. By contrast, for Dagan and Dorfman, it is inherently wrongful for an employer to pay an employee a wage that is inadequate (locally and contingently understood) and the primary purpose of a minimum wage is to prohibit the relational wrong that very low wages represent. On this view, the internal morality of contract law (or more broadly, private law) demands a decent wage as a matter of horizontal justice between employers and employees, regardless of its economic consequences. Whether one is ultimately persuaded that this is the right way to think about the minimum wage, contract or private law, their account sets forth a powerful new way of understanding what we are doing in these domains, and how we might do it better.
