Relational Justice and Social Morality

In Relational Justice Hanoch Dagan and Avihay Dorfman adopt a posture of indifference towards social morality. They take the position relational justice should neither follow nor try to improve social morality. This paper challenges the latter position and argues the relational justice project need not, and should not, be indifferent to social morality. While law should not follow social morality when it is immoral, lawmakers still have reasons to care when there is a gap between law and social morality. Trying to improve social morality to bring it into line with what law demands is one-way to address such a gap. Dagan and Dorfman renounce this solution arguing several reasons preclude law from trying to change social morality. These reasons include a commitment to liberal neutrality, an objection to rules based on motives, and an objection to ad hockery. This paper will show these reasons at most preclude using certain legal mechanisms to try to improve social morality. This paper will also explain in a general way how lawmakers should think about proposed laws that demand more of people than existing social morality, and the nature of the gap between relational justice and existing social morality.

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‍This Essay addresses the relationship between relational justice and social morality. Section 1 makes a few introductory points about the grand legal ambitions of the relational justice project and the character of social morality. Section 2 observes that in Relational Justice[1] Hanoch Dagan and Avihay Dorfman adopt a posture of indifference towards social morality: relational justice neither follows nor seeks to change social morality. I agree law should not follow social morality when it is immoral, but I disagree law should not seek to improve social morality. Dagan and Dorfman offer several reasons against law doing this. These are a commitment to liberal neutrality, an objection to rules based on motives, and an objection to ad hockery. Sections 3 and 4 show these reasons only preclude law from using certain mechanisms to try to improve social morality. Section 5 explains in a general way how lawmakers should think about laws that demand more of people than existing social morality. Finally, Section 6 assesses the gap between relational justice and existing social morality. It argues the principle of relational justice should be presented as preserving what is good about exchange relationships—people treat others as equals and respect for self-determination is understood to be reciprocal—while tempering their toxicity by demanding people respect each other’s substantive autonomy and substantive equality. 

I. Relational Justice’s Grand Legal Ambitions and the Character of Social Morality

  This section uses a hypothetical case to illustrate the grand legal ambitions of the relational justice project and to make a few points about the character of social morality. In the hypothetical case, the relational justice project would bring law closer to social morality. Later sections will address contexts in which the projects demands more of people than existing social morality.

The case involves Chris, a third-year student at an expensive college who is halfway through the Spring semester. Until this Spring, Chris’s parents, both high-income professionals, paid the cost of tuition, room, and board. They have not paid the Spring bill because their lives have fallen apart. The parents separated on acrimonious terms one month into the semester; the parent who stayed in the family home lost their job, and the other parent told Chris to transfer to a local community college and live at home. Like many affluent families, their accumulated wealth consists of hard-to-access home equity and retirement accounts. The family’s liquid savings barely cover their credit card debt.

Chris and their parents are in clear breach of a contract all three signed with the college. The contract requires full payment of tuition and room and board by the third week of a semester, provides that failure to pay may result in immediate dismissal, and that full payment for a semester remains due if a student is dismissed for good cause—of course including dismissal for non-payment.

The crux of the case is how college administrators handle this situation. Possibilities range from dismissing Chris immediately if the Spring bill is not paid, letting them finish the semester but allowing them to return only if the Spring and Fall bills are paid, enabling Chris to complete the degree by helping them find loans to cover the cost, with the college perhaps serving as lender of last resort, and enabling Chris to complete their degree with a mix of loans and financial aid to lessen the debt burden.

Relational justice demands college administrators comply with “the maxim of reciprocal respect for self-determination and substantive equality” in deciding how to handle this situation. More concretely, relational justice requires the college to make accommodations for Chris’s financial need so long as these accommodations do not unduly burden the college and are subject to a few “operational” constraints that are not relevant here.[2] These rules clearly put off the table the harshest option of immediately dismissing Chris if the bill is not paid. This would be punitive because it would significantly harm Chris while providing little or no benefit to the college, other than showing the college is serious about people paying their bills. If the college is wealthy enough to bear the cost and the debt would be onerous enough, relational justice would require the college to provide some financial aid to help Chris to complete the degree.

This is an enormous change in the law. Under existing contract law, the college clearly has the right to dismiss Chris immediately for non-payment of the Spring bill. While a party to a contract is not allowed to exploit another party’s financial exigency to obtain better terms,[3] a party has no duty to forebear asserting rights under a contract to accommodate the other party’s financial exigency.[4] Indeed, creditors may and often do threaten to punish debtors to coerce them to pay debts.

This Essay is not about Dagan and Dorfman’s grand ambitions for law. It is about their indifference to social morality. Section 2 explains the posture Dagan and Dorfman take towards social morality in Relational Justice. Chris’s case illustrates social morality at work. Every academic administrator I have known in 50+ years attending and working in academic institutions would try to help Chris finish the semester and return to school to graduate. I expect an administrator would only consider the harshest option (immediate dismissal) if Chris refused to work with them, such as refusing to meet or to respond to reasonable requests for information. And even then, an administrator would make a significant effort to avoid this harshest outcome. No one would overtly threaten Chris with immediate dismissal to coerce payment of the Spring bill. And if they did dismiss Chris, they would do it quietly to avoid embarrassment.

Social morality explains this behavior. H.L.A. Hart identifies four characteristics that distinguish rules of social morality from both legal rules and less pressing social rules (like rules of etiquette). They are “importance, immunity from deliberate change, the voluntary character of moral offences, and the special form of moral pressure.”[5] Chris’s case nicely captures the first and fourth characteristic. The pressure college administrators feel to work with Chris is largely a matter of “conscience,” an administrator would “feel guilt and remorse” if they did not try to help Chris.[6] This internal pressure is often reinforced by external pressure. Imagine how other students and their parents would react if an administrator publicly threatened Chris with dismissal for non-payment, then followed through to embarrass Chris and to drive home to other students the importance of paying  their bills. An administrator would also understand helping Chris stay in school is a matter of great importance to Chris, the school, and themselves.[7] In bureaucratic organizations, social morality often is embedded in organizational structures, like a college’s financial aid office, that make compliance with rules of social morality people’s job. This underscores the importance of the norm and adds social pressure to comply.

In Chris’s case, relational justice requires administrators to do what they would do anyway as a matter of social morality. Here, relational justice brings law into line with social morality. Sadly, social morality often falls short of what relational justice requires. For example, if Chris was a tenant in a low-rent building who could not afford rent, it is unlikely that the landlord’s agents would make a significant effort to keep Chris housed.  Indeed, a landlord might well threaten to evict Chris to coerce payment of the rent even if the unit would otherwise be unoccupied. And, if they evicted Chris, they might do it in a public way to encourage other tenants to pay their rent. The next section addresses what Dagan and Dorfman have to say about this gap between relational justice and existing social morality.

II. Relational Justice’s Indifference to Social Morality

  Dagan and Dorfman do not say much about social morality in Relational Justice. This is partly attributable to the book’s intended audience, which is law’s makers, not law’s subjects. Thus, they write the “task in this book is to offer the language and conceptual apparatus that can, at least to some extent, guide conscientious actors—be they the actual architects of private law or its critics and potential reformed—to do the right thing.”[8] But their indifference to social morality has deeper reasons. It is striking that throughout the book it is “private law,” and not private actors, that Dagan and Dorfman insist “should . . . abide by” or “must be guided by” the “maxim of reciprocal respect for self-determination and substantive equality we refer to as relational justice.”[9] Why not insist private actors “abide by” and “be guided by” this maxim?

I will come back to this question as the answer lies in several reasons Dagan and Dorfman give for why liberal law cannot try to improve social morality. I begin with Dagan and Dorfman’s position that private law and relational justice should not follow social morality when it is immoral. I agree with them on this point.

A. Relational Justice Does Not Follow Social Morality When it is Immoral

Dagan and Dorfman are quite clear that private law should not follow social morality when it is immoral. They reject the position that private law “is about enforcing such preexisting norms of appropriate behavior,” labelling this “naturalized traditionalism.”[10] Their immediate target here is Arthur Ripstein, who offers as one justification for private law embodying Kantian principles of justice that “this Kantian picture of interpersonal morality is so familiar as to be easy to overlook. Many of its basic norms are clearly articulated in kindergarten.”[11]

Dagan and Dorfman reject Kantian principles because these principles demand too little of people. Kantian principles merely require reciprocal respect for formal autonomy and formal equality. Thus, Kantian principles support the traditional position of private law that there is no duty to rescue,[12] and they support the traditional position of contract law that it is appropriate to use contract to exploit a position of advantage over another person, so long as they know what they are getting into, and there is a reasonably well functioning market.[13] Relational justice rejects both positions.

I agree with Dagan and Dorfman on this point. If law can improve the world by demanding more of people in their interactions than Kantian principles, then it should. And I agree this is the case even if Kantian principles conform to existing social morality.

B.  Relational Justice Does Not Try to Improve Social Morality

I may disagree with Dagan and Dorfman on a normative question succinctly put by Leslie Green: “should law improve morality?”[14] I will come back to Green’s answer to this question, which is a qualified yes. I read Dagan and Dorfman as answering this question “no.” They take the position that while law may demand more than social morality, law should not try to change social morality. This rest of this section explains the reasons they give for why law should not try to change social morality.

Dagan and Dorfman come closest to addressing Green’s question in a subsection captioned “Actions, Not Motivations.” The passages reproduced below are prefaced by a statement that relational justice’s “duties of accommodation . . . purport to provide duty-holders with mandatory reasons for action.” The passages distinguish law and morality, and as I read them, equate morality with values people hold, which are internal to them, and take the position liberal law cannot try to shape these values.

This passage is in the text:

A critical distance exists, then between the normative grounds of a given reason and the motivation for conforming to its demands when the reason cannot actually lead to the motivation and, at most, can only influence people to acquire it. This gap between reason and motivation is particularly important for private law (as opposed to personal morality). The enforcement of motives goes well beyond private law’s proper mandate, at least in liberal societies. However, relational justice does not threaten this boundary.[15]

And this passage is in a footnote:

More generally, while the gap between giving reasons and motivating is not a conceptual truth about law, it is a normative requirement that the law governing liberal societies must adhere to. This limitation on the enforcement of motives reflects both substantive considerations—such as those pertaining to the distinction between political and personal morality of right and virtue—and instrumental ones—notably the unverifiability of a person’s internal mental states.[16]

While the passages refer to “personal morality” I think this necessarily implicates social morality for social morality subsists in widely shared personal moral beliefs. The passages suggest two reasons why law should not try to change social morality and through this personal morality. The invocation of liberalism suggests this requirement flows from the general ideal of “liberal neutrality,” i.e., “the view that the state should not reward or penalize particular conceptions of the good life but, rather, should provide a neutral framework within which different and potentially conflicting conceptions of the good can be pursued.”[17]  

There also is an objection to law acting based on people’s motives or mental states. I will call this the objection to rules based on mental state.[18] That “[a] liberal legal order cannot (or at least should not) extend to our inner selves”[19] is a recurring point in the book. We are told “reciprocal respect for self-determination and substantive equality . . . does not imply measuring how much each party respects the other” and “is not about . . . some attitude of solidarity.”[20] That “[m]otives do not play a role in in deciding what private law duties we owe to each other.”[21] And, in the case of discrimination, “that motives or intentions should not be necessary for determining what counts as wrongful discrimination,” though they can affect things like remedies and the burden of proof.[22]

In a recent essay, Dagan and Dorfman qualify their commitment to liberal neutrality and emphasize another objection that may bear on Green’s question.[23] This is in a response to Aditi Bagchi’s argument relational justice is fundamentally illiberal because it seeks to impose an “ethical concept of equality” on people’s private interactions. Bagchi argues liberalism requires law take an agnostic position on how people appropriately interact in the absence of social harms justifying state intervention. In her words, “the liberal state should not purport to know (or impose) an ethical concept of equality” and “the liberal state should not purport to know private relationships and what they should look like.”[24]

In their response to Bagchi, Dagan and Dorfman concede that relational justice theory rejects “political liberalism’s normative modesty,” which requires “state agnosticism about the content of self-determination.”[25] They argue, “relational justice is sufficiently neutral” because law inevitably sets terms for people’s interactions that significantly impact people’s self-determination (in other words, law is never completely neutral), and because “[s]ignificant parts of Relational Justice are dedicated to translating the abstract maxim of reciprocal respect for self-determination to rule-of-law compliant doctrines.”[26] This, they argue, satisfies liberalism’s requirement “that any interpersonal duty we have should be grounded in the ‘justice of institutions,’ rather than in the state’s evaluation of ‘individual decisions, individual interactions, [or] individual relationships.”[27]

I will call this the objection to ad hockery. In Relational Justice, Dagan and Dorfman contrast ad hockery with the rule of law, which they explain has two “key elements,” “guidance and constraint.”[28] Guidance refers to the ability of law’s subjects to know what law empowers and forbids them to do, how to exercise legal powers, and what law may do to them if they do what law forbids or fail to do what law requires. Constraint refers to how requiring legal decisions be “anchored in stable general legal doctrines, made for publicly available reasons, [and] applied faithfully” constrains law’s makers and so “takes the edge off human political power, making it less objectionable, less dangerous, more benign and more respectful.”[29]

Sections 3 and 4 address these objections to law trying to improve social morality, beginning with the objections to ad hockery and to rules based on mental states.[30] I will show these objections at most are reasons law should not use certain mechanisms to try to improve social morality. Section 5 returns to the question of why and how lawmakers may address a gap between law and social morality, including by trying to improve social morality.

III. Objectionable Legal Mechanisms for Trying to Improve Social Morality

The objection to rules based on mental states goes to a particular type of law, i.e. rules that have this feature. The objection to ad hockery goes to a way law’s subjects and law’s makers can experience being subject to and making law as unpredictable and discretionary, respectively. These are not general objections to law trying to improve social morality. At most these are objections to law trying to improve social morality by this type of rule, i.e., a rule that is based on mental states, or by this approach, i.e., by unpredictable and discretionary decisions. In other words, these objections are to certain types of mechanisms law might use to try to improve social morality; they are not general objections to law trying to improve social morality.

Law can use multiple mechanisms to try to improve social morality. Often law improves social morality by demanding more than social morality and influencing people to treat legal rules as moral rules, i.e., as rules of great importance, that are a matter of conscience, and that are enforced by moral pressure. Law does this tacitly just by being law. In addition, lawmakers can express and justify law in moralistic terms, e.g., negligence law’s duty of reasonable care and contract law’s duty of good faith, to influence people to think in this way when they interact with others. And the modern state often tries to influence people’s “hearts and minds” explicitly through public education and ad campaigns.[31]

Law can only try to improve social morality—success is not guaranteed. Hart observes rules of social morality are not “capable of creation or change . . . by human fiat.”[32] Social morality is like other matters of tradition in that “rules acquire and lose the status of traditions by growing, being practiced, ceasing to be practiced, and decaying.”[33] Hart acknowledges “the enactment or repeal of laws may well be among the causes of a change or decay of some moral standard or tradition,”[34] but he cautions that “very often, the law loses such battles with ingrained morality, and the moral rule continues in full vigour side by side with laws which forbid what it enjoins.”[35] I will come back to this concern in Section 5 as the gap between relational justice and social morality casts a shadow over the project that Dagan and Dorfman do not sufficiently address. But first I address objections they pose that bear on certain mechanisms law might use to try to improve social morality.

A. Objectionably Ad Hoc Mechanisms

The objection to ad hockery puts off the table approaches to governing people and improving social morality that involve unduly unpredictable and discretionary decisions. Thus, the objection explains why law cannot simply order people to comply with the maxim of reciprocal respect for self-determination and substantive equality in an overly broad category of human interactions. An overly broad general command gives people too little guidance and lawmakers too much discretion.

Dagan and Dorfman allude to and reject an overly broad general command in the context of negligence liability for nonfeasance. The traditional starting position of negligence law is no liability for mere nonfeasance, otherwise known as no duty to rescue.[36] This is subject to exceptions. For example, a person who non-negligently creates a hazardous situation has a duty to act to eliminate the hazard. Thus, if a driver of a car unavoidably kills a deer in the road, they have a duty to move or mark the carcass, so it is not a hazard to other drivers.[37]

Dagan and Dorfman endorse these established “pockets of liability” for nonfeasance as consistent with relational justice while acknowledging they “do not fully satisfy the demands of relational justice.”[38] They argue this gap is unfortunate but sometimes is justified by the objection to ad hockery,[39] and urge lawmakers to close this gap by adding “further categories . . . to the list of exceptions” so long as liability is not objectionably ad hoc.[40] These categories would identify “the kind of persons whose special training, knowledge, and position render them appropriate duty-owners.”[41] Dagan and Dorfman give examples of two such rules. One covers “a [passerby] failing to make a reasonable effort to rescue a child drowning in a puddle.”[42] The other covers the duty of a social host “to refrain from knowingly dispensing alcoholic beverages to their visibly intoxicated guests insofar as they are motorists or calling a taxi to take them home.”[43]

The objection to ad hockery may explain why tort law should not impose a broad duty to rescue, but it is not apparent how the concern for ad hockery, i.e., law’s subjects experiencing law as unpredictable and law’s makers experiencing law as discretionary, bears on the separate question whether law should take the position there is a moral duty to rescue that is broader than the legal duty. It is not unusual for the law to embody norms that are under-enforced for institutional reasons.[44] In these situations, law can intelligibly take the position that social morality requires more than law. Indeed, this position seems implicit when a lawmaker explains an important norm is under-enforced for institutional reasons, like the concern for ad hockery.

Dagan and Dorfman also recognize a degree of ad hockery is appropriate in circumscribed contexts in the application of legal standards.[45] They emphasize how “informative standards” provide guidance, enabling “their addresses (or their lawyers) to figure out their intended content, predict their possible applications, and modify their behavior accordingly.”[46] But standards also encourage situational moral deliberation both by law’s subjects and law’s makers, meaning whoever determines what constitutes compliance with a standard.[47] An example is the determination of breach of the duty of reasonable care in negligence law. This is a jury question in U.S. law in part because it is thought of as valuable for a group of lay people to deliberate about what reasonable care involves in a situation.[48] In close cases where reasonable people might disagree about what a standard requires, law’s subjects will experience law as unpredictable, and law’s makers will experience law as discretionary—or at least open to disagreement. This does not make the legal arrangement objectionably ad hoc because one of this arrangement’s purposes is to encourage situational moral deliberation by both law’s subjects and law’s makers. In these contexts, ad hockery is a feature and not a bug.

Dagan and Dorfman reject another type of ad hockery that is associated with equity. Courts can exercise equitable discretion and decline to apply the usual rule governing a case, without establishing a general exception.[49] Dagan and Dorfman reject this. Thus, while they encourage courts to create new pockets of liability for nonfeasance, they take the position this must be done by categorical rules and cannot be done by one-off decisions, e.g., by exercising equitable discretion. I will come back to their position on equitable discretion, but first I need to address the objection to rules based on mental states because it bears on their objection to equitable discretion.

B. The Objection to Rules Based on Mental States

The objection to rules based on mental states is doubly curious. First, and putting liberal principles to the side, it is not obvious why it is bad for legal rules to be based on mental states. Mental states must be established by inference, but this is true of many legally operative facts, including many past events and most causal claims.  And, of course, legal rules often are based on people’s mental states. Power conferring rules, such as assent rules in contract law, generally are based on people’s mental states because exercising a legal power involves an act of volition. Intentional wrongs are also generally based on people’s mental states because these wrongs involve an act of volition.

Of course, some legal rules are not based on people’s mental states. In this respect, legal offenses are unlike moral offenses because the latter always have a voluntary character. Hart explains in morality, unlike in law, “[i]f a person whose action, judged ab extra, has offended against moral rules or principles, succeeds in establishing that he did this unintentionally and in spite of every precaution that it was possible for him to take, he is excused from moral responsibility, and to blame him would itself be considered morally objectionable.”[50] But I take it this is not the point of the objection to rules based on mental states. The objection is that there is something troublingly illiberal about rules based on people’s mental states.

But it is not obvious why rules based on mental states categorically violate liberal principles. No doubt liberalism prohibits some types of rules based on people’s mental states. Liberalism clearly puts off the table enforcement mechanisms like Orwell’s “Thought Police” and laws that target “thoughtcrime.”[51] And some argue programs like state-mandated DEI training are illiberal because a liberal state should not compel organizations to pressure their employees to think certain ways.

But I don’t think this type of thing is what Dagan and Dorfman have in mind when they write “[t]he enforcement of motives goes well beyond private law’s proper mandate, at least in liberal societies.”[52] I think what they have in mind is people who live in a society and abide by its rules but who do not “accept and voluntarily co-operate in maintaining the rules,” but instead “reject the rules and attend to them only from the external point of view as a sign of possible punishment.”[53] Call these people the “alienated.” I think Dagan and Dorfman’s position is that liberal law can demand no more of the alienated than compliance with whatever rules law establishes to govern a type of human interaction.  Liberal law cannot criticize (much less punish) a person whose values are at odds with the principle of relational justice so long as they comply with the letter of the law. 

C. The Objection to Equitable Discretion

The problem of people violating the spirit of relational justice while complying with the letter of the law relates to Dagan and Dorfman’s position that relational justice has no place for equitable discretion. In their words:

[R]elational justice does not respond to ad hoc encounters and adopts a clear ex ante perspective instead. Relational justice, as we have recurrently emphasized, seeks to guide private law on how to set up the terms of the interaction that structure our interpersonal relationships constructively and prospectively. Ensuring the justice of private law must not be an afterthought of judges embarrassed by its inequitable results.[54]

In some contexts, relational justice has less need for equitable discretion because it replaces rules with standards that enable lawmakers to address conduct ex post, applying the principle of relational justice. For example, relational justice embraces a robust version of the duty of good faith in contract, which reduces the need to use equity to police opportunism in the performance and enforcement of contracts.[55]

But in contexts where relational justice uses rules to govern people’s interactions, the rejection of equitable discretion has unattractive implications that may make their position untenable. To see why, assume an area of law arranged like what Dagan and Dorfman propose for negligence liability for nonfeasance. People will understand the rules fall short of what relational justice requires for institutional reasons, particularly the concern law not be unacceptability ad hoc. True believers who “accept and voluntary cooperate in maintaining” a society committed to relational justice will do more than law requires because they think it important to show reciprocal respect for self-determination and substantive equality in their interactions with others. They will think of law as setting a floor and not a ceiling on what relational justice requires when it comes to aiding others in need. The alienated will do the minimum required by law.

Inevitably in rule-based areas of law there will be cases where people comply with the letter of the law but act in ways true believers consider beyond the pale. For example, imagine a bystander in a crowd films a child drowning and then markets the film. Presumably the bystander has no duty to rescue because they are in a crowd. But I hope a court would use equitable discretion to prevent the bystander from profiting from the film.[56]

Equity enables courts to do something about cases where people comply with the letter of the law while acting inequitably without having to create a rule. Importantly, in these cases equity’s sanctions tend to be weak.[57] This reduces the concern for ad hockery. But even a weak sanction is something. And a weak sanction is coupled with a declaration that the court is exercising discretion to sanction the transgressor because it considers their conduct beyond the pale. The alternative in which a court can do nothing, no matter how awful the transgressor’s conduct, is unattractive.

Telling courts to do nothing may also be untenable because courts may be unwilling to countenance awful conduct. Karl Llewellyn famously observed that under the highly formalistic rules of traditional contract law, courts often employed “covert tools” to reach fair results.[58] Again, relational justice’s embrace of flexible standards, like good faith and unconscionability, reduces the need for courts to use covert tools to avoid countenancing awful conduct. But inevitably some cases will remain, particularly in rule-based areas of law. Preserving equitable discretion provides a less covert, and therefore more law-like, way for courts to do what they might do anyway in these cases.

I move on because the question whether law should allow equitable discretion is tangentially related to the question whether law should try to improve social morality. Law still has other ways to try to improve social morality even if equitable discretion is off the table, e.g., using standards and taking the position important norms sometimes are under-enforced for institutional reasons. And while the exercise of equitable discretion clearly is influenced by judges’ moral beliefs, it is unlikely that allowing judges to use equitable discretion has much of an effect on social morality. What judges do with equitable discretion is best thought of as a trailing indicator of social morality, which has some value. I turn to the next question, which is whether a commitment to liberal neutrality precludes law from trying to improve social morality.

IV. The Commitment to Liberal Neutrality

It is not self-evident why a commitment to liberal neutrality precludes the state from trying to improve social morality so long as it does not use objectionable mechanisms. Social morality is a collective human construct that, from the perspective of individuals, is a fact. Steven Wall describes social morality as an important part of a society’s “ethical environment,” and forcefully argues that, just as state has a duty to maintain and support a physical environment in which people can thrive, it has a duty to maintain and support an ethical environment in which people can thrive.[59] I am sympathetic to Wall’s project, which is consequentialist and perfectionist,[60] but the narrow point I will make here does not require you be persuaded by his arguments.

Wall is attempting to justify a comprehensive system of state sanctions and incentives, or sticks and carrots, that maintains and supports a suitable ethical environment. Dagan and Dorfman propose just such a system to structure people’s private interactions based on the principle of relational justice. But they take the position lawmakers must be indifferent to the influence of this system of sticks and carrots on social morality.

The narrow point I want to make is that the position Dagan and Dorfman take is untenable. Liberal neutrality requires the state to “provide a neutral framework within which different and potentially conflicting conceptions of the good can be pursued.” It is bizarre to think the state can satisfy this requirement, while providing a non-neutral framework of sticks and carrots to govern people’s private interactions, by taking a neutral position on social morality. Another way to put this point is that a commitment to liberal neutrality may be a reason to object to lawmakers using sticks and carrots to implement the principle of relational justice—this is what Bagchi argues—but once these objections are overcome it is not a reason to object to lawmakers trying to improve social morality to align with the principle of relational justice, assuming, of course, they do not use means that are objectionable for other reasons.[61]

Indeed, lawmakers who adopt laws to govern people’s interactions to implement the principle of relational justice will have compelling reasons to improve social morality to align with the principle of relational justice, assuming this can be done. Leslie Green notes two major reasons. One is knowability. While “people should not have to consult a lawyer to get through daily life,” they “can be expected to know what morality requires of them.”[62] The other is that law works best if people do not think of it in a “legalistic” way. “We do not want people thinking that anything that is not unlawful . . . is perfectly fair” or “to take minimally lawful behavior as establishing a social norm.”[63]

Green presents these reasons as “arguments against law-induced moral change.”[64] I present them as reasons for law to induce moral change by stipulating law succeeds in improving social morality. Of course, success is not guaranteed when law tries to improve social morality. This brings me to an issue Dagan and Dorfman do not sufficiently address: the gap between relational justice and social morality.

V. Mind the Gap

Dagan and Dorfman say nothing in Relational Justice about the character or size of the gap between relational justice and social morality, or how it should bear on the relational justice project. They simply dismiss theorists who take the view private law “is about enforcing such preexisting norms of appropriate behavior,” denigrating this position as “naturalized traditionalism,” and arguing these “theorists radically understate” the constitutive effect of law on these norms.[65] The last dismissive argument can be set to the side. The fact law shapes social morality may be a reason to question social morality, though it is not obvious why the source of social morality should bear on its critical assessment, but it is not a reason for lawmakers to be indifferent to problems that arise when law differs from social morality.

Leslie Green identifies several reasons why lawmakers should be concerned about creating a gap between law and social morality. I have already noted the two most important: the interest in law being “knowable” and the recognition law works best if people do not think of it in a “legalistic” way. Green adds to these a concern that people “should not be subject to too many conflicting demands,”[66] a concern for the “costs associated” with trying to change social morality, and the recognition “success is rarely guaranteed,” which Green argues warrants deferring to existing social morality when it is “good enough.”[67] Finally, Green argues deference to existing social morality is appropriate when it falls “within a margin of appreciation that acknowledges that social groups, like individuals, can have rights to do things that are sometimes wrong.”[68]

Building on Green, lawmakers should balance several competing considerations when thinking about adopting laws that demands more of people than existing social morality. A primary consideration is how bad is the behavior or practice lawmakers seek to change.[69] Lawmakers should also consider the likelihood the behavior or practice will change, the likelihood social morality will change to align with law, eliminating the gap, and the costs if social morality does not change, leaving a gap. These include costs associated with people not knowing the law, people thinking of the law in legalistic ways, and people being subject to conflicting demands. The size of the gap between the proposed law and social morality bears on many of these considerations. Lawmakers should also consider how entrenched is the targeted behavior or practice, and the norm of social morality that supports it.

In theory, lawmakers could implement a law to try to increase the likelihood of changing social morality. Green warns against taking an overly law-centric perspective in thinking about this. His paper concludes by making a case for law trying to improve social morality on what constitutes consent to sexual activity.[70] But he also sounds a note of caution about the influence of rape law on sexual morality, wryly noting that “thinking that only rape law stands a chance of shaping attitudes to rape is no better than jurisprudential homeopathy.”[71] Instead, the best way for lawmakers to improve “our social morality of sex” is by changing background conditions of sexism and gender inequality. Many of his proposals in this regard—Green mentions “discrimination laws, workplace harassment laws, and fairer work-family policies”[72]—are planks in the relational justice project.

Another way to put Green’s point is that improving the social morality of sex may require something like the relational justice project (as well as using fiscal and other tools to reduce inequality of income and wealth). Implicit in this point is an aspect of the relational justice project that increases the likelihood it will change social morality. This is the project’s breadth. It aspires to inculcate a norm of treating others as substantive equals with an equal right to self-determination across a broad range of human interactions.

I set to the side questions about the likelihood of the relational justice project changing social morality to take up a prior question: In what respects does the maxim of reciprocal respect for autonomy and substantive equality demand more of people in their interactions than existing social morality?

VI. What is the Gap Between Relational Justice and Social Morality?

A good place to start in answering this question is to identify the feature of our moral landscape the principle of relational justice opposes. This is what the anthropologist David Graeber calls the morality of “commercial exchange.”[73] This morality accepts money as the measure of value;[74] valorizes the accumulation of money and material goods;[75] tends “to reduce all human relations to exchange;”[76] accepts “the logic of the market, where we like to imagine we start out as individuals who don’t owe each other anything;”[77] is “impersonal;”[78] and assumes “both parties to the transaction are only interested in the value of goods being transacted [so] they may well—as economists insist they should—try to seek the maximum material advantage.”[79]

Peter Benson describes something similar in providing a Kantian “public justification”[80] of traditional contract law. Benson writes the market is a “self-generating social process that becomes ever more established . . . as individuals participate in it: the more they seek satisfaction of their needs and interests in this way-as they must-the more complete their dependence on each other becomes and the more pervasive and necessary the system itself . . . [as] each participant, acting and producing on his own account, eo ipso acts and produces for the needs and interests of everyone else.”[81] The market “educates”[82] people to be “moved by the thought of what others may need or provide.”[83] It encourages relationships that are “impersonal, reciprocal, and mutually voluntary giving and taking that operates on the basis of respect for each side's separate holdings and undertakings.”[84] “Finally,” the market is not geared to “the realization of distributive justice. Quite the contrary . . . [t]he satisfaction of need depends on the contingent existing distribution of purchasing power . . . .”[85]

Identifying the morality relational justice opposes is only part of the picture. The principle of relational justice can also be related to existing moral beliefs and practices that are at odds with, or at least alternatives to, the morality of commercial exchange. This makes the project seem more a matter of rearranging moral furniture than trying to persuade people to buy into a strange, new morality. Dagan and Dorfman make a legal argument along these lines in Relational Justice when they show that much of existing private law can be explained by the principle of relational justice.[86] But this approach is not well-suited to identifying moral beliefs and practices that are at odds with the morality of commercial exchange because many of these rules can also be explained by the morality of commercial exchange.

A more promising strategy for identifying moral beliefs and practices that are at odds with the morality of commercial exchange is to identify cases where existing law and the morality commercial exchange licenses conduct that many people consider morally objectionable. I will limit myself to one example—debt enforcement—that illustrates both the promise and a pitfall of trying to tie relational justice to existing moral beliefs and practices that are odds with the morality of commercial exchange. Both existing law and the morality of commercial exchange enable debt enforcement practices that violate a widely held belief (i.e., a belief that is a matter of social morality) that creditors should forebear from enforcing personal debts when individuals are unable to pay for reasons beyond their control.[87]

The principle of relational justice would justify significantly stronger debtor-protection laws than the U.S. now has. Thus, it would support a rule precluding creditors from imposing debilitating punishment debtors without first determining punishment is warranted, i.e., the debtor incurred the debt dishonestly or the debtor is shirking, so long this can be determined with reasonable accuracy and without an undue burden. In other words, relational justice would require something like due process by creditors before punishing debtors who default.

This may seem like low hanging fruit as a matter of social morality because of the widely held belief creditors should forebear from enforcing person debts when individuals are unable to pay for reasons beyond their control. The principle of relational justice could be presented as bringing the law of personal debt enforcement closer to social morality—stronger debtor protection laws would encourage creditors to do what they ought to do anyway, as a matter of social morality.  Similarly, Dagan and Dorman could tie rules they propose to require institutions and professionals to make reasonable accommodations to serve poor people to widely held moral beliefs that people with the means should aid people in need.

But there is a hitch. The moral norms supporting forgiveness of debts and accommodating poverty are fundamentally illiberal. In times past, the relationship between a creditor and a debtor whose debt was forgiven was thought of in hierarchical terms. Creditors were people at the top of society who had a duty to care for people at the bottom. Being at the bottom of society, people whose debts were forgiven owed their creditor a duty of social deference.[88]

The same can be said of the many relationships where Dagan and Dorfman argue relational justice requires accommodating poverty. In times past, the relationship between a professional and an individual served as a matter of charity would have been explained in hierarchical terms. People at the top of society, like doctors, lawyers, and teachers, had a duty to care for people at the bottom, and people at the bottom who were cared for little-to-no charge owed a duty of social deference. The same would have been said of people who provided shelter to people in need of shelter. To some extent, these ways of thinking persist to this day. It is unlikely that people think of these acts in terms of relational justice.

Hierarchy is one of several general categories social theorists use to describe different ways people think about how they may appropriately treat other people in economic interactions. David Graeber describes the other two general categories as “communism” and “exchange.”[89] He uses the word communism to describe “any human relationship that operates on a principle of ‘from each according to their abilities, to each according to their needs,” while noting “a more neutral term like ‘solidarity’, ‘mutual aid’, ‘conviviality’ or even ‘help’” gets at the same way of thinking. A hallmark of “communistic relations” is that “taking accounts is considered morally offensive or just bizarre.”[90] Graeber’s point is that it is offensive for people in a sharing relationship to keep a tally of what each does for the other. This distinguishes communistic relations from exchange relations, which are all about equivalence, whether that be in reciprocal gift giving or bargaining.[91]

When wealthy people comply with legal rules and customs that require them to make accommodations for poverty, I expect many of them think about the interaction in hierarchical terms, such as paying taxes.[92] I expect many creditors think about forgiving debts in the same way. Alternatively, and sticking with Graeber’s typology, wealthy people might think about these interactions in communistic terms, like good people think about how they should regularly treat family members and how they should treat other people in the “immediate wake of great disasters.”[93]

Relational justice describes another way people might think about these interactions. This way of thinking about interaction is not hierarchical. It combines aspects of exchange—people treat others as equals and respect for self-determination is understood to be reciprocal—with aspects of “mutual aid”—wealthy people are expected to make accommodations for the poor because they can do so without an undue sacrifice, and it would be considered offensive to “keep accounts.”

That relational justice involves an unfamiliar way of thinking about how people appropriately treat others in economic interactions is not a reason to give up on a project to make the maxim of reciprocal respect for autonomy and substantive equality a social norm. The morality of commercial exchange is well-suited to changing societies organized around traditional hierarchical relationships, and to encouraging and enabling people to create and accumulate wealth. But in a society with enormous wealth, and enormous wealth disparities, the morality of commercial exchange has toxic effects because it licenses people with wealth and power to seek the “maximum material advantage” for themselves in all exchange relations. Relational justice preserves what is good about exchange relations—people treat others as equals and respect for self-determination is understood to be reciprocal—while tempering their toxicity by demanding people respect each other’s substantive autonomy and substantive equality.

Copyright © 2026 Mark P. Gergen, Professor, University of California, Berkeley School of Law.

[1] Hanoch Dagan & Avihay Dorfman, Relational Justice (2024).

[2] Dagan & Dorfman, supra note 1, at 208-09. Dagan & Dorfman address the duty of a college to provide financial relief to poor students at the point of admission. This logic extends to Chris’s case. They describe the operational constraints as “publicity, hybridity, and fungibility.” The publicity constraint does not apply because the aid is confidential. The hybridity constraint does not apply because a college education is a basic good. The fungibility constraint does not apply because Chris cannot resell the good.

[3] Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15 (9th Cir. 1978) (holding that a creditor could void a settlement on ground of duress if it could establish that the debtor “deliberately withheld payment of an acknowledged debt, knowing that [the creditor] had no choice but to accept an inadequate sum.”)

[4] Chouinard v. Chouinard, 568 F.2d 430 (5th Cir. 1978) (holding there is no claim of duress when a person exploits another person’s financial distress to drive a hard bargain). Indeed, traditional contract law would not hold the college to a promise to waive part of the Spring bill because of the absence of consideration. Foakes v. Beer, [1884] 9 App. Cas. 605 (Eng.).

[5] H.L.A Hart, The Concept Of Law 180 (3d ed. 2012).

[6] Id. at 180.

[7] Id., at 173-74.

[8] Dagan & Dorfman, supra note 1, at 57.

[9] Dagan & Dorfman, supra note 1, at 4, 5.

[10] Dagan & Dorfman, supra note 1, at 34.

[11] Arthur Ripstein, Kantian Perspectives on Private Law, in The Oxford Handbook Of The New Private Law 69, 71 (Andrew S. Gold, et al. eds. 2020).

[12] See, e.g., Peter Benson, Justice In Transactions: A Theory Of Contract Law (2019).

[13] See, e.g., Daniel Markovits, Good Faith as Contracts Core Value, in Philosophical Foundations of Contract Law 291 (Gregory Klass, George Letsas & Prince Saprai eds., 2014).

[14] Leslie Green, Should Law Improve Morality?, 7 Crim. L. & Phil. 473 (2013).

[15] Dagan & Dorfman, supra note 1, at 53.

[16] Dagan & Dorfman, supra note 1, at 254 n.73.

[17] Will Kymlicka, Liberal Individualism and Liberal Neutrality, 99 Ethics 883 (1989).

[18] Motive is a type of a mental state that refers to reasons people have in mind when they act. I use the broader term because I will not try to distinguish between rules based on motives and rules based on other types of mental states like intent, choice, or belief. I don’t think any points I make turn on my lumping these different types of mental states together.

[19] Dagan & Dorfman, supra note 1, at 10.

[20] Dagan & Dorfman, supra note 1, at 45.

[21] Dagan & Dorfman, supra note 1, at 66.

[22] Dagan & Dorfman, supra note 1, at 66, 186-7.

[23] Hanoch Dagan & Avihay Dorfman, The Work and Values of Relational Justice, Law & Phil. (forthcoming 2026).

[24] Aditi Bagchi, How Liberal is Relational Justice?, Law & Phil. (2026), at *19.

[25] Dagan & Dorfman, The Work and Values of Relational Justice, supra note 18, at 24.

[26] Dagan & Dorfman, The Work and Values of Relational Justice, supra note 18, at 22, 24 (emphasis added).

[27] Dagan & Dorfman, The Work and Values of Relational Justice, supra note 18, at 22.

[28] Dagan & Dorfman, Relational Justice, supra note 1, at 58.

[29] Dagan & Dorfman, Relational Justice, supra note 1, at 58-59 (quoting Joseph Raz and Jeremy Waldron, respectively).

[30] Relational Justice connects these concerns: “A liberal legal order cannot (or at least should not) extend to our inner selves and should abide by rule of law concerns.” Dagan & Dorfman, Relational Justice, supra note 1, at 10.

[31] Richard Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 60 (2008) (highlighting the “Don’t Mess With Texas” ad campaign, which was fabulously successful in reducing highway litter).

[32] Hart, supra note 5, at 176.

[33] Hart, supra note 5, at 176.

[34] Hart, supra note 5, at 176.

[35] Hart, supra note 5, at 177.

[36] Restatement (Third) of Torts § 37 (stating general rule that “[a]n actor whose conduct has not created a risk of physical harm to another has no duty of care to the other . . .”).

[37] See id. § 39.

[38] Dagan & Dorfman, Relational Justice, supra note 1, at 96.

[39] Dagan & Dorfman, Relational Justice, supra note 1, at 92 (characterizing this as a “line drawing” problem).

[40] Dagan & Dorfman, Relational Justice, supra note 1, at 96.

[41] Dagan & Dorfman, Relational Justice, supra note 1, at 92.

[42] Dagan & Dorfman, Relational Justice, supra note 1, at 96.

[43] Dagan & Dorfman, Relational Justice, supra note 1, at 97.

[44] Cf. Lawrence Gene Sager, Fair Measure: The Legal Status of Under-Enforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978).

[45] Dagan & Dorfman, Relational Justice, supra note 1, at 59.

[46] Dagan & Dorfman, Relational Justice, supra note 1, at 59.

[47] See, e.g., Seana Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 Harv. L. Rev. 1214 (2010). Peter M. Gerhart emphasizes this aspect of standards in a trio of books on contract, property, and tort law, and argues large parts of each of these bodies of law encourage people to think in other-regarding terms when their behavior affects other people. Peter M. Gerhart, Tort Law And Social Morality (2010); Peter M. Gerhart, Property Law And Social Morality (2014); Peter M. Gerhart, Contract Law And Social Morality (2021).

[48] Mark P. Gergen, The Jury’s Role in Deciding Normative Issue in the American Common Law, 68 Fordham L. Rev. 407, 435-38 (1999). Situation-specific normative decisions can be delegated to judges, rather than juries, in U.S. law. An example is unconscionability determinations in contract law. It should not be assumed judges are better exponents of relational justice. There are good reasons to think negligence law better conforms to relational justice because of juries’ role in making negligence law, id. at 425-27, and that juries have not been allowed to play a similar role in making contract law because judges worry juries will demand more than the morality of the marketplace in contractual interactions. Id. at 413-14.

[49] Henry E. Smith, Equity as Meta-Law, 130 Yale L.J. 1050, 1076-81 (2021).

[50] Hart, supra note 5, at 178.

[51] George Orwell, 1984 (1949).

[52] Dagan & Dorfman, Relational Justice, supra note 1, at 53.

[53] Hart, supra note 5, at 91 (describing them as people who look at law from an external point of view).

[54] Dagan & Dorfman, Relational Justice, supra note 1, at 60-61.

[55] Dagan & Dorfman, Relational Justice, supra note 1, at 152-54.

[56] The child’s parents or estate could ask a court to impose a constructive trust on the profits to prevent the transgressor from profiting from the misappropriation of the image of the child’s death. The general template for the claim is International News Service v. Associated Press, 248 U.S. 215 (1918). The equitable relief sought in that case was an injunction.

[57] Mark P. Gergen, Equity’s System of Open-Ended Wrongs and Limited Remedies, 11 Tex. A&M L. Rev. 541 (2024).

[58] Karl Llewellyn, Book Review, 52 Harv. L. Rev. 700, 703 (1939).

[59] Steven Wall, Enforcing Morality (2023). Wall addresses the neutrality principle at pages 14-16 and chapters 5 and 6.

[60] See Heidi M. Hurd, Ethical Environmentalism and the Demands of Justice: An Exploration of Steven Wall’s Enforcing Morality, Crim. L. & Phil. (2026) [https://doi.org/10.1007/s11572-025-09783-6].

[61] It follows that I think Dagan and Dorfman need to come up with another answer to Bagchi.

[62] Green, supra note 14, at 488.

[63] Green, supra note 14, at 489.

[64] Green, supra note 14, at 486.

[65] Dagan & Dorfman, Relational Justice, supra note 1, at 34.

[66] Green, supra note 14, at 488.

[67] Green, supra note 14, at 489.

[68] Green, supra note 14, at 489.

[69] Green, supra note 14, at 486.

[70] Green, supra note 14, at 489-94.

[71] Green, supra note 14, at 492.

[72] Green, supra note 14, at 492.

[73] DAVID GRAEBER, DEBT: THE FIRST 5,000 YEARS 103 (2011).

[74] Id. at 46-48

[75] Id. at 125-26.

[76] Id. at 18.

[77] Id. at 71.

[78] Id. This is in the sense that who is on the other side of the transaction is “entirely irrelevant. We are simply comparing the value of two objects.”

[79] Id.

[80] “Public justification” is a term of art for the principle that in a liberal society the exercise of political power, and in particular state coercion, must be justified by reasons the public can recognize as valid. See, e.g., John Rawls, Political Liberalism 137 (expanded ed. 2005).

[81] Benson, supra note 12, at 420.

[82] Benson, supra note 12, at 419.

[83] Benson, supra note 12, at 419.

[84] Benson, supra note 12, at 422-23.

[85] Benson, supra note 12, at 423.

[86] Dagan & Dorfman, Relational Justice, supra note 1, at 8 (stating their account “builds on existing practices while suggesting a new perspective on the law that both reaffirms core aspects of existing law and proposes justified reforms.”).

[87] Martha Minow, When Should Law Forgive? (2019), devotes a chapter to debt forgiveness as a case study of how the law can accommodate a norm of forgiveness. Debates over bankruptcy law from early commercial England to the present reflect a widespread belief that a creditor ought to forgive a debtor who defaults for reasons beyond their control. Robert Weisberg, Commercial Morality, the Merchant Character, and the History of Voidable Preference, 39 Stan. L. Rev. 3, 7-9 (1986). Going back further, canon lawyers also debated about when leniency was required. Wim Decock, Law, Religion, and Debt Relief: Balancing Above the ‘Abyss of Despair’ in Early Modern Canon Law and Theology, 57 Am. J. Legal Hist. 125 (2017).

[88] Craig Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England 306 (1998).

[89] David Graeber, On the Moral Grounds of Economic Relations: A Maussian Approach, 14 J. Classical Socio. 65 (2014).

[90] Id. at 70.

[91] Id. at 70-72.

[92] Id. at 74 (discussing “hierarchical redistribution”).

[93] Id. at 68.