What Has Private Law Ever Done for Justice?

Abstract

This article identifies and explains an important and distinctive way in which a traditional set of private law rules, doctrines, and concepts (ie those that allocate particular goods to particular individuals) relate to distributive justice. Such rules, doctrines, and concepts are instrumentally valuable vis-à-vis a just allocation of goods in two different ways. On the one hand, and less controversially, they sometimes possess the ability to cause (or contribute to causing) such states of affairs into being. The article shows that they also discharge a constitutive function in relation to distributive justice, one that is required by conceptions of distributive justice that are centred around allocation-unbound justificatory criteria (which constitute the vast majority of the available accounts of distributive justice).