Reciprocal Freedom

Abstract

Abstract This book continues a decades-long exploration of the theory of private law. Two previous books, The Idea of Private Law and Corrective Justice had presented, respectively, the theory of corrective justice and the analysis of a wide range of specific issues in private law. The present book starts with corrective justice as the structure of the private law relationship and gradually moves outward to situate private law within the wider world of law, dealing with the state’s role in forwarding distributive justice, the horizontal application of constitutional rights to private law, and the rule of law. The book draws on Kant’s legal philosophy to exhibit law, both private and public, as the necessary medium for the reciprocal freedom of all. Central to this enterprise is what Kant called ‘public right’, with its system of public institutions. Throughout these books, four ideas about private law have consistently been in play: (1) fair and coherent reasons for liability are correlative in structure; (2) rights and their correlative obligations provide the content for this structure; (3) the activity of theorizing about private law involves not the construction of a utopia but the understanding of an ongoing normative practice; and (4) a theory of private law is concerned not with producing a determinate code of law, but with explicating the conceptual structure and normative presuppositions of the phenomenon of liability.