Private (Law) Egalitarianism

Introduction

Private law, with its focus on interprsonal rights, is often thought to have an inherently libertarian bent. This is not to say that it necessarily yields libertarian conclusions; still, if we wish to avoid these, we must introduce considerations (of distributive justice, say) that are in some important sense external to the relations among private persons central to private law. Or so it is often assumed. It is one of the distinctive virtues of Hanoch Dagan and Avihay Dorfman’s book, Relational Justice,[1] that it puts pressure on this proto-libertarian assumption about private law, by articulating an alternative interpretation of the interpersonal normativity underpinning private law—one that is centered on the eponymous ideal of relational justice and its egalitarian commitments. It is this feature of Dagan and Dorfman’s book—their account of the egalitarian commitments that are internal to private relations, and their implications for what private law is and ought to be—that is the focus of this brief essay.

I. Understanding the Basics of Private Law Egalitarianism

What I will call Dagan and Dorfman’s “private law egalitarianism” builds on two central assumptions: first, that private law, understood as “the law of interpersonal relationships” (3), is answerable to the moral ideals appropriate to interpersonal relationships; and, second, that the moral ideals governing interpersonal relationships have an important egalitarian dimension that private law should reflect. Let me say something about each of these, starting with the former.

A.   The congruence between interpersonal morality and private law

For Dagan and Dorfman, the proper domain of private law is constituted by “the horizontal interactions of people in their personal capacity” (3). And “the question of whether private persons participating in an interaction relate to one another as free and equal” is, according to them, “in and of itself, a source of value and concern” (42). So it is appropriate that private law has among its central tasks to enable morally valuable interpersonal relations—relations living up to the ideal Dagan and Dorfman call “relational justice”—among individuals interacting in their private capacity.

For Dagan and Dorfman, there is essential continuity among the moral norms governing how we ought to relate to one another (what philosophers often discuss under the header of “what we owe to each other”[2]) and the legal norms appropriate to private law. This reflects what we may call the “deep congruence” between interpersonal morality and private law, which, on their view, are both ultimately grounded in the same concern for the values of self-determination and equality. Interpersonal morality and private law are, furthermore, practically aligned because the moral demands of “reciprocal respect for self-determination” (4) and equality are mediated by concrete social practices and institutions, including law. Thus, private law plays an important constitutive role in shaping the contours of the parties’ relationship, and (part-)determines what relational justice requires between them.

This deep congruence does not entail, however, that the content of private law is (or should be) identical to the content of interpersonal morality. There are features of the law as a social institution—concerns for the rule of law, for administrability, and so on—that explain why legal norms properly deviate from the moral norms of relational justice that govern how we ought to interact. Still, this occasional divergence is practical rather than principled in nature: it does not track a principled distinction (familiar from influential Kantian approaches to private law) between the norms of interpersonal morality (what Kantians would call the domain of “virtue”) on the one hand and the norms relevant to law (what Kantians would call the domain of “right”) on the other.[3]

B.   The egalitarian ideals inherent in interpersonal relationships

Turning to our second point: Dagan and Dorfman emphasize that substantive egalitarian demands are internal to the appropriate relations among private parties, rather than an external restriction on these relations grounded in alternative considerations. Interpersonal relationships should live up to the demands of relational justice, and relational justice is committed to “substantive equality,” or “the egalitarian ideal of relating to other persons as equals.” Substantive equality requires, in particular, that the terms governing the parties’ interactions “reflect, rather than disregard, certain differences between the parties”: they must pay heed (i) to the “qualitative distinction between sheer preferences as opposed to the features and choices that make” the parties who are they; and (ii) to “imbalances of power and vulnerability” (4).

This egalitarian position grounded in how private parties should relate to one another can be usefully contrasted with another view that grounds equality’s significance in relations among political and legal institutions and their subjects. Consider, for instance, Ronald Dworkin’s influential articulation of egalitarian values. On Dworkin’s approach, equality is (in Samuel Scheffler’s memorable characterization) “the virtue of sovereigns”: political institutions are required to treat their subjects with equal concern and respect, and various egalitarian features of the law (perhaps including private law) can be traced to these requirements.[4] One need not reject Dworkin’s argument for equality, grounded in the relation between political and legal institutions and their subjects, to accept that there are also egalitarian requirements that arise directly from within relations among private persons, and that it may be among private law’s proper ends to help ensure that these requirements are met. Such egalitarian requirements among private individuals are central to Dagan and Dorfman’s account.

We can now summarize the philosophical foundations of Dagan and Dorfman’s private law egalitarianism: Private relationships are properly subject to requirements of substantive equality. And private law is answerable to the moral ideals governing interpersonal relationships among private persons. So certain egalitarian commitments are internal to private law.[5] In other words: their egalitarianism about private law is downstream of their egalitarianism about private moral relationships, or what, for short, we may call “private egalitarianism.”

These egalitarian requirements, in turn, support broadly non-libertarian conclusions about private law. For instance (to introduce an example to which we will return later), Dagan and Dorfman propose that minimum wage laws should not be understood as external restrictions (say, of distributive justice grounded in ideals of a just political community) on private law and the ideals governing private legal relations among individuals. Rather, Dagan and Dorfman argue, demands for a minimum wage arise from within the ideals governing the relations among private persons—here, as employee and employer—that private law serves to uphold (213–15).

II. Varieties of Private Egalitarianism

For the remainder of this essay, I want to explore the arguments that support what I earlier called ‘private egalitarianism’, and how these arguments play out in the domain of private law. To do so, it will be helpful to distinguish two arguments for egalitarian requirements that arise in interpersonal relations.[6] (These two types of arguments are not mutually exclusive: one can, and many egalitarian philosophers do, accept both. But they are also not necessarily aligned: one can in principle adopt one without the other.)

The first rests on the abstract egalitarian assumption that everyone’s life matters equally; and that, correspondingly, everyone’s interests must be given equal weight in the justification of the norms governing our interactions and relationships. (Call this the abstract egalitarian argument.)

The second rests on specific egalitarian interests: some of the interests that must be considered when justifying how we are to interact and relate to one another are themselves interests in being treated (related to, interacted with) in distinctly egalitarian, or at least not distinctly inegalitarian, ways. (Call this the argument from egalitarian interests.)

To make more vivid these two arguments and the contrast between them, it may help to sketch how they play out in a familiar philosophical debate that is a step removed from our current concern with private law: the debate about political equality, or whether people should be given a (roughly) equal say in political decision-making.

According to one type of argument for political equality, we should give people an equal say on political matters because that is what fairness requires when people have different, and perhaps competing, interests in how their common affairs should be run.[7] Since everyone’s interests matter equally, we should give people equal opportunities to advance their interests, and this is a reason to give them an equal say. A recurring worry about this first argument is, however, that people’s interests may be fairly advanced as, if not more, effectively by giving some citizens (e.g., those who are better informed than others) a greater say than others. In other words, though there is little doubt that demands of fairness properly regulate how political power should be distributed, it is far from obvious that appeals to fairness yield the egalitarian conclusions about political say to which many of us living in democratic societies are committed.

This worry motivates an alternative argument for political equality, which points to our interest in standing in a certain relationship to others of which an equal say is an essential component. Because we have an interest in standing in such relationships, and these relationships require an equal say, we have a distinctly egalitarian interest (an interest with a particular egalitarian content) that justifies giving people an equal say.[8] By building a concern for equal say into the picture of attractive relationships, this strategy has a much easier time explaining why an appeal to the value of these relationships yields support for giving people an equal (rather than an unequal) say. But this approach of giving people an equal say for the sake of maintaining attractive relationships faces another challenge: it requires a plausible account of the relevant valuable relationship that explains both why this egalitarian feature is essential to this relationship, and why the parties whose interaction is at issue have reason to stand in this relationship to one another.[9]

III. The Limits of Private Law Egalitarianism

With this distinction between egalitarian arguments at hand, we can now return to Dagan and Dorfman’s account of relational justice and its commitment to “the egalitarian ideal of relating to other persons as equals” (4). This ideal requires that the norms governing the parties’ interactions pay due heed to the “qualitative distinction between sheer preferences as opposed to the features and choices that make” the parties who are they, and to “imbalances of power and vulnerability” that may arise among them (4). I want to suggest that their account may face a worry that runs parallel to the one I gestured towards in my reconstruction of debates about political equality.

Let me start with what I called the abstract egalitarian argument, according to which the norms governing our interactions and relationships must be justified in a suitably egalitarian manner, reflecting the fact that everyone’s interests matter equally. This requirement applies to all our interactions: even one-off interactions with complete strangers are governed by moral norms that must be justifiable, in a suitably egalitarian fashion, to all relevant parties.

Furthermore, the abstract egalitarian requirement, when combined with Dagan and Dorfman’s substantive account of freedom as self-determination, yields certain concrete egalitarian (or at least distinctly anti-libertarian) conclusions. Freedom as self-determination requires, not just independence from another’s will, but the positive “ability to make meaningful choices about the direction of [one’s] life” (45). Correspondingly, in our relationships with one another, we should be concerned, not just with upholding independence from another’s will, but also with enabling each other’s meaningful choices. Private law that seeks to uphold the ideal of relational justice among private parties must, in turn, “proactively support their ability to shape a life they can view as their own and cannot be contented with merely respecting their bare capacity for uncoerced choice” (46).

This suffices, I think, to support Dagan and Dorfman’s anti-libertarian conclusion that private law properly includes, certain affirmative obligations of assistance in addition to negative duties of non-interference. It also explains why (per what they call “substantive equality”) interpersonal morality (and thus private law) must pay due heed to the “qualitative distinctions between sheer preferences as opposed to the features and choices” (4) that makes us who we are: the latter are central to our autonomy as self-determination, and thus worthy of protecting and advancing, in ways in which the former are not. Finally, it explains why we may have certain objections to “imbalances of power and vulnerability” (4): if (as will often be the case) those who are more vulnerable have, as a matter of self-determination, more at stake in an interaction, then their correspondingly weightier interests presumptively put pressure on any moral norms that allow those with less at stake to exploit their advantageous position.

I doubt, however, that the abstract egalitarian argument yields some of the concrete egalitarian conclusions to which Dagan and Dorfman are committed. Consider their argument for minimum wage laws (213–15). To simplify a complex discussion: Dagan and Dorfman grant, at least for the sake of the argument, the assumption often held by economists that a higher minimum wage creates unemployment at the margin, which harms those who would have had a job but for the minimum wage (214). Still, they propose, minimum wage laws can be justified by appealing to the ideals of relational justice that properly govern relations between employers and employees: “A minimum wage requirement could make the terms of employment interactions between private persons . . . relationally just” (214). To be clear, I don’t take them to say that the concern for upholding relational justice necessarily takes precedence over other considerations. What matters for our purposes is, rather, their more limited claim that at least sometimes, considerations of relational justice can justify minimum wage laws that would otherwise be unjustified: the value of employer and employee appropriately relating to one another can outweigh the harm to the marginally unemployed that the minimum wage law causes.

But if the egalitarian requirements at issue are grounded only in the abstract egalitarian argument, then this justification seems to me difficult to pull off. It is true that the employer’s own interest in paying less could not justify allowing her to pay a sub-minimum wage, if we assume (in line with the earlier discussion of vulnerability) that the employee has more at stake here than the employer. But if we grant (again, at least arguendo) that minimum wage laws negatively impact employment, then the objection to minimum wage laws rests, not on the interests of the employer, but on the interests of the marginally unemployed. Since the marginally unemployed (for whom minimum wage laws make the difference between being employed rather than unemployed) has even more at stake than the employee (for whom these laws make the difference between being paid at a higher or lower wage), an employer has a justification for paying sub-minimum wages (and a legislator for rejecting minimum wage laws) that is compatible with (and, unless more is said to change the balance of interests at stake, plausibly required by) the abstract egalitarian requirement. So if all that “the egalitarian ideal of relating to other persons as equals” (4) required were to abide by norms that satisfy the abstract egalitarian assumption (combined with plausible views about the interests that affected people have), then (granting the economists’ assumption) it would not bar minimum wage laws. (Nor could a concern for the just relation between employer and employee override a concern for the interests of the marginally unemployed, because the latter would already be reflected in the former.)

The obvious response at this point is to switch gears and invoke what I earlier called the argument from egalitarian interests: employee and employer have interests in standing in a relationship to each other that meets certain distinctly egalitarian conditions even if those conditions are not required by the abstract egalitarian argument. Once we consider these distinctly egalitarian interests of the parties to the employment relation, we may conclude that minimum wage laws can be justified even if they come at a cost to the marginally unemployed, given that they now impact, not just the employee’s wage situation, but also his relationship with his employer (and hers to him), and the interest that the parties to this relationship have in it possessing the characteristics (including, one might think, certain egalitarian features) on which the relationship’s non-instrumental value depends.

I think there is significant plausibility to the idea that many non-instrumentally valuable relationships are governed by moral ideals that are incompatible with significant inequality of vulnerability or power. (Crucially, for our purposes, they are so incompatible even if, based on considerations of fairness alone, these inequalities in vulnerability or power would not be objectionable.) Consider, for instance, valuable interpersonal relationships like friendship and marriage. These have (at least in a culture like ours) a deeply egalitarian character: our friendship or marriage falls short, on its own terms, if the friends don’t relate to each other in line with certain egalitarian norms, or suffer from significant inequalities in power over, or vulnerability within, the relationship.[10] This is true even if these inequalities can be justified by appeal to other, external considerations (such as the interests of third parties): even if your having much greater power over me than I have over you is all things considered justified by its benefits to third parties, it does come at a genuine cost to the quality of our relationship. (Here is a way to see this: even if the inequality is all things considered justified, there is an impact it has on our relationship and its value that is clearly deserving of regret.)

But this argumentative strategy, of appealing to egalitarian interests, faces an obstacle of its own. While the abstract egalitarian requirement, that people’s interests matter equally when it comes to justifying norms governing interactions and relationships, applies to any interaction, even one-off encounters between strangers, relationships that give rise to egalitarian interests are much rarer. The norms of friendship or marriage do not apply to all of our relationships, because not all of them are, or even aspire to be, friendships or marriages. And even if one thinks that such egalitarian interests can arise in relationships that are not, on their face, instances of friendship (or marriage), such as relations among colleagues or neighbors, it remains the case that the relevant kind of valuable relationship seems dependent on certain conditions that are generally only contingently met: if the parties have a shared history, certain positive attitudes to each other, etc. If those conditions aren’t met, then the relevant kind of valuable relationship is anyway absent; and so the parties have no relationship-dependent reason to meet other conditions on which the relationship’s value depends (such as certain egalitarian requirements). To make this more concrete: Friendship depends on some form of shared history or interpersonal attitudes. If those are absent, then there is no friendship. So even if friendship requires that certain egalitarian conditions are met, if there is anyway no friendship between us, then you and I have no compelling reason—at least none grounded in the value of friendship—to see to it that these egalitarian conditions are met.

There are evidently some (perhaps many) interpersonal interactions governed by private law that do constitute valuable relationships among the parties. If these relationships are aspirationally egalitarian, then this explains why private law has reason to uphold certain egalitarian conditions among the parties in these cases. But many other interpersonal interactions governed by private law are, it seems to me, much too thin to ground a substantive interpersonal relationship with internal egalitarian norms which is of value to the parties. It is, after all, among the great benefits of a well-functioning legal system that it enables us to engage with complete strangers in limited interactions. But when this is so, then it becomes difficult to see how this interaction could be governed by egalitarian norms grounded in the value of substantive interpersonal relationships that presuppose something more than such one-off interactions among strangers. Applying this to the minimum wage case: if the employer and the employee are strangers, and the employment agreement is for a short time (too short, let’s stipulate, to create the kinds of conditions on which thicker relationships like friendship depend), then it is difficult to see how the parties to the employment relation could have the kinds of egalitarian interests that the second type of argument requires.

Conclusion

I do not take myself to have offered any decisive objections to Dagan and Dorfman’s private law egalitarianism. Rather, I have sought to distinguish different kinds of arguments for the private egalitarianism on which their conclusion rests, and to identify the limits of each of these. Since the two kinds of arguments that I distinguished are compatible, and can be conjoint, many of the egalitarian conclusions Dagan and Dorfman seek to defend are compatible with the limitations I have identified. But some—such as the argument for minimum wage laws that would apply in general to employment relations—are not. Or at least not unless more is said to explain which substantive relationships give rise to egalitarian interests, and to show that even the thin types of interactions that law (including private law) enables among relative strangers engaged in one-off encounters can suffice to ground valuable egalitarian relationships of the right sort.

Copyright © 2026 Daniel Viehoff, Associate Professor of Philosophy, University of California, Berkeley.

       [1]. Relational Justice: A Theory of Private Law. By Hanoch Dagan & Avihay Dorfman. Oxford University Press, 2024. Unattributed page numbers in this article refer to this book.

       [2]. The most prominent discussion of this domain in recent philosophy can be found in T.M. Scanlon, What We Owe To Each Other (Harvard University Press. 1998). But one need not accept Scanlon’s contractualism to accept that there is a distinctive domain of interpersonal morality structured by claims (or ‘owing’ relations) that persons hold against one another.

       [3]. Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy (Mary Gregor ed. 1996 [1797]). For an influential contemporary interpretation and defense of Kant’s approach, which also explores Kant’s (and, more generally, broadly Kantian) takes on various elements of private law, see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press. 2009).

       [4]. For Dworkin’s account of equality, see Ronald Dworkin, Sovereign Virtue : The Theory and Practice of Equality (Harv. Univ. Press 2000). For Scheffler’s critical discussion, see Samuel Scheffler, What Is Egalitarianism, 31 Phil. & Pub. Affs. (2003); Samuel Scheffler, Equality as the Virtue of Sovereigns: A Reply to Ronald Dworkin, 31 Phil. & Pub. Affs. 199 (2003). (The latter is a response to Ronald Dworkin, Equality, Luck, and Hierarchy, see id. at 190. Though Dworkin has misgivings about Scheffler’s characterization of his account, Scheffler seems to me to properly capture the account’s deep structure, and specifically its grounding in public rather than private relations).

       [5]. As Dagan and Dorfman put the point, “We argue that these two commitments—to self-determination and to substantive equality—ground the basic rights and powers that make up the domain of private law and . . . help to assess what counts as just terms of interactions.” (4)

       [6]. For a broadly similar distinction in a somewhat different context, see T.M. Scanlon, Why Does Inequality Matter? 157–58 (Oxford Univ. Press 2018). For discussion, see Daniel Viehoff, Review of T.M. Scanlon, Why Does Inequality Matter?, 130 Ethics 259 (2020).

       [7]. This is, for instance, broadly the strategy pursued in Charles R. Beitz, Political equality : An Essay in Democratic Theory (Princeton Univ. Press 1989).

       [8]. See, for further discussion, Daniel Viehoff, Democratic Equality and Political Authority, 42 Phil. & Pub. Affs. (2014).

       [9]. I discuss some of the associated difficulties in Daniel Viehoff, Power and Equality, 5 Oxford Stud. in Pol. Phil. 3 (2019).

     [10]. For discussion, see, Viehoff, Democratic Equality and Political Authority, 42 Phil. & Pub. Affs. (2014); Samuel Scheffler, The Practice of Equality, in Social Equality: On What It Means to Be Equal (Carina Fourie, et al. eds., 2015);Viehoff, Power and Equality, 5 Oxford Stud. in Pol. Phil. (2019). Views of this sort are part of a broad family of views philosophers often call ‘relational egalitarianism.’ But they differ in important respects from views that Dagan and Dorfman discuss, and reject, under that header. Dagan and Dorfman focus on views that put center stage, not personal relationships like friendship and marriage, but rather relations in which people stand in their civic or political capacity (41). The specific problems they identify for these views do not apply to the views now under discussion (though other problems do apply).