Moral Uncertainty and Redistribution through Private Law

Abstract

One of the central arguments against redistribution through private law is its inefficiency due to the double-distortion phenomenon that accompanies it. I argue that in a subset of cases—in which there is uncertainty regarding the fairness principle that should be accepted in the realm of private law—it may be required to take into account redistributive considerations even if one generally accepts the double-distortion argument. I assert that while side-constraints may apply to direct redistribution, they do not apply to the role of redistributive considerations in determining which of the fairness principles should be accepted in the realm of private law. As a consequence, some distributive patterns could be achieved only by taking into account redistributive considerations in the realm of private law. I argue that redistributive considerations may tilt the scales toward accepting the fairness principle with the lower credence of being true.