The Enigma of Interpersonal Justice in Private Law Theory

Abstract

Abstract The purpose of this article is to establish that contemporary private law theory has located no foolproof conception of interpersonal justice. I examine four accounts and find them wanting: the instrumentalist deterrence and loss-spreading approaches of economists; Kantian right and corrective justice; critical and social justice accounts; and the human flourishing approach. If my critiques are justified, this leaves us with the enigma of ‘interpersonal justice’. I consider three options going forward, rejecting the suggestion that we should abandon the search for a theoretical concept or be content with a modus vivendi. I sketch a third option, ‘emancipating interpersonal justice’, drawing from the resources of contractualist philosophy, to suggest that interpersonal justice is not a unitary concept or single regulative idea but a framework for determining what we owe each other in different spheres of interaction, and propose how this might illume certain questions of private law theory.