Why Relational Justice
In Relational Justice (OUP 2024) we rethink the normative foundations of private law and chart the path for a just reconstruction. We claim that the fundamental maxim of reciprocal respect for self-determination and substantive equality—relational justice, as we dub it—is (or should be) the distinctive normative commitment of a genuinely liberal private law. Anna Stilz, Mark Gergen, Abbye Atkinson, and Daniel Viehoff intriguingly challenge this proposition from various important perspectives. Addressing their critical concerns allows us to clarify the irreducible function of relational justice in guiding law’s construction of the legal frameworks that significantly structure a range of social spheres such as work, home, family, community, and commerce. These settings figure prominently in people’s lives as private persons rather than members of a specific political community. Relational justice captures the distinctive justice considerations that must guide law when it sets up the terms of interaction—the interpersonal rights and duties—within the legally constructed frameworks that constitute private law. Adherence to relational justice is necessary to establish private law’s legitimate authority and should guide its forms and functions.
Table of Contents Show
Introduction
In Relational Justice: A Theory of Private Law,[1] we examine numerous private law doctrines (with particular, though not exhaustive, focus on American law), affirming some and criticizing others. We recognize the complexity of private law and do not dismiss the role rules of private law can, and sometimes should, play in advancing collectivist goals like distributive justice, democratic citizenship, and social welfare. But we nonetheless argue that the core normative commitment of a genuinely liberal private law—its distinctive normative DNA, as we sometime refer to it—is, or at least should be, the fundamental maxim of reciprocal respect for self-determination and substantive equality, which we dub relational justice. A commitment to relational justice, we argue, both ensures the legitimate authority of private law and directs its proper architecture.
We are indebted to Anna Stilz, Mark Gergen, Abbye Atkinson, and Daniel Viehoff for their generous engagement with Relational Justice.[2] Their intriguing comments and the penetrating insights they each develop all raise, albeit in different ways and from differing perspectives, a similar question: Why relational justice? Why do we insist on going beyond the traditional division of labor between private and public law, Stilz asks, thus encumbering people with duties of accommodation which “might be (a) epistemically demanding, (b) extremely costly, and (c) unfairly distributed” (*95)? Gergen’s and Atkinson’s critique push in the other direction, but still in the same vein: Gergen wonders why should the “grand ambitions” of the relational justice project be limited to law, rather than take its task to also “improve social morality” (*105–*106) whereas Atkinson is worried that relational justice “conceives of private law in a way that ignores reality,” where human-to-human interactions are increasingly the exception rather than the rule, and “most of what private law does . . . is to structure the horizontal relationships between human beings and artificial persons” (*125, 132). Finally, Viehoff’s review questions whether relational justice has the normative resources necessary in order to add to (or justifiably revise) the “upstream” philosophical analysis of “what we owe to each other” which should inform liberal private law (82–*83).
Our specific responses to these important queries vary, of course. But they all add up to one proposition: Relational justice’s moral function is that of guiding private law in the construction of the legal frameworks that play a significant (albeit often unnoticed) role in our quotidian horizontal interactions in a range of social spheres such as work, home, family, community, and commerce. These settings, where we encounter one another as private persons rather than members of a specific political community, play an irreducible role in people’s lives. Relational justice crystalizes the distinctive justice considerations that must guide (liberal) law when it sets up the terms of interaction—the interpersonal rights and duties—which serve as the necessary preconditions for the legally constructed frameworks it instantiates.
In addition to defending this general response, our reviewers’ rich and thoughtful discussions provide us with an opportunity to better clarify the ambition of Relational Justice and its potential contribution: the division of labor between relational and distributive justice and the indispensable role of relational justice in addressing structural injustice (Stilz); the potential contribution of relational justice theory to improving social morality and the proper role of equity as a source of relationally just private law doctrines (Gergen); what relational justice theory already tells us about the proper terms for people’s relationships with corporate entities, and how it lays the groundwork for further development of this long-neglected aspect of private law theory (Atkinson); and, finally, the indispensable contribution of legal theory to moral and political philosophy, the proper distinction between right and virtue, and the significance of our egalitarian commitments to the terms of interactions between strangers (Viehoff).
I. From Accommodative Duties to Structural Justice
Anna Stilz finds “[t]he idea that relational justice imposes positive duties to accommodate impoverished persons’ vulnerability in private transactions [] original, and in many ways attractive” (*100). But she is reluctant to endorse this and maybe also parallel reformist takeaways of Relational Justice because she seems unpersuaded that “parties to private legal transactions have (or should have)” such “positive duties of accommodation” to redress the vulnerabilities of those with whom they interact (*94).[3]
Stilz is concerned that such accommodative duties are excessive since they “require people to undertake an inquiry into their counterparty’s characteristics and vulnerabilities” in order “to adjust their behavior to remedy structurally caused deprivations.” The difficulty is that, as Iris Marion Young observes, structural injustices such as the vulnerability of impoverished persons are not “‘traceable to specific individual actions or policies.’”[4] Stilz suggests that the fact that these vulnerabilities “do[] not involve any private interpersonal wrongs” lends support to the “standard view,” which relies on “a ‘division of labor’ between the state and private persons, according to which principles of justice apply to systems of public law, not to private individuals’ decisions and transactions.” Such a division of labor allows the standard view to avoid the difficulties of the “relational justice approach” that imposes “on private parties, transaction-by-transaction” duties of accommodation, which are likely to be “epistemically demanding, extremely costly, and unfairly distributed” (*93–*96).
This worry is “serious,” but not necessarily “fatal.” Its damage to relational justice theory, Stilz maintains, depends on whether one can “define accommodative duties in a way that minimizes these epistemic and material burdens,” which in turn depends on whether “the abstract values of self-determination and substantive equality give us enough resources to concretely specify the duties of accommodation that ought to structure private law.” Stilz recognizes that Relational Justice calls for instantiating accommodative duties not only, or even mainly, directly, but also through “structural strategies” which “build a floor or a ceiling into certain contractual and property transactions” (213). But she is worried that the examples we give for such strategies, including the one pertaining on landlord-tenant law on which she focuses, do not offer “a principled method by which to decide which specific accommodation duties to impose” (*96–*99).
* * *
We think that the predicament of pervasive structural injustices vindicates relational justice’s distinctive contribution rather than challenging it. But before we get there, we need to clarify the work relational justice theory aspires to perform.[5] Relational justice is, we maintain, the main normative lodestar of private law, rather than a first-order prescription for individual cases. It informs the doctrinal rules that private law should adopt rather than the outcomes that particular legal disputes should produce.
The jurisprudential starting point of the theory is that many of the frameworks that constitute our social life are at least partly legally constructed. This means that the ambition of private law—the law governing our relationships with one another in our capacity as private individuals, rather than as members of political communities—is necessarily both constructive and prospective. Instead of merely addressing ad-hoc encounters, say, between this or that landlord and tenant, private law constructs the edifice for this and numerous other categories of social relationship. The terms of the interactions it sets are thus typically prospective, establishing necessary preconditions for legitimate horizontal interactions rather than merely responding to what parties in a particular interaction have done.
A just private law shapes these frameworks in a normatively appealing way. This means that relational justice theory does not require people to directly implement the abstract maxim of reciprocal respect for self-determination and substantive equality in their daily interactions with others, which would indeed be an excessive encumbrance on their own autonomy. Rather, the theory requires the architects of private law to shape its doctrines in line with relational justice (57), which in turn requires them to translate this abstract maxim to rule-of-law compliant doctrines. Importantly, this exercise is not limiting relational justice; quite the contrary. Relational justice’s “most significant inherent limit”—that private law’s interpersonal duties “must neither undermine duty owers’ autonomy nor subordinate them to others”—also “requires respect for [people’s] ability to form expectations based on stable frames of reference” (58–59).
Thus, relational justice theory does not require people to apply reciprocal respect for self-determination and substantive equality “transaction-by-transaction,” but rather to comport themselves with the demands of private law doctrines that conforms with its prescriptions.
The question that still remains is, as Stilz insists, whether relational justice theory can provide sufficient guidelines for the translation of its abstract normative maxim to such doctrines. Throughout the book, we offer numerous examples for this exercise, including in our discussion of the context of poverty, where we analyze measures like minimum wage, price controls, and warranty of habitability in these terms. In each of these cases, we realize that there is an unavoidable gap between “the theory’s guidelines” and “the concrete answers for as-applied, real-world questions doctrine.” But this gap is “a feature rather than a bug,” since relational justice theory, like many other theories, aspires to apply across time and place. Therefore, the theory must “leave room for local adjustments based on the pertinent doctrinal landscape and the broader social, cultural, and economic circumstances as well as—and no less significant—democratic prescriptions (and some measure of experimentation)” (67).
Because the translation of abstract principles to concrete blueprints is not, and cannot and should not be, a technical algorithm, we cannot guarantee that relational justice theory will always have enough resources for its principled guidance. The point is rather that entrenching relational justice as private law’s normative DNA may gradually lead to a set of “best practices” on top of the principled normative foundation the theory provides. That said, happily enough, although we cannot offer here a full-blown blueprint to the example Stilz uses to show the difficulty, we can use it to demonstrate how relational justice theory serves as a lodestar.
In considering how landlords’ accommodative duties to impoverished tenants can be integrated into doctrine, Stilz zooms in on a possible rule that would “require landlords to forgo security deposits altogether in certain neighborhoods, e.g., where the average annual income falls below poverty level.” Let’s assume, with Stilz, that this rule could indeed be a viable floor of landlord-tenant law, which can serve as a proxy for poverty-minded relational justice, given the systemic difficulty of impoverished people getting security deposits. It means that certain landlords would assume some risk of uncompensated damage to their property, which obviously translates into an additional cost that in turn gives rise to two important questions: first, “how high costs need to be before they void [a landlord’s] accommodative duties”; and, second and more fundamentally, “why exactly high costs should matter” given that landlords’ pertinent interest is typically purely commercial, so that their autonomy is unlikely to be affected? (*93, 96, 98–*99).
Relational justice theory can offer two guidelines here. First, it qualifies the scope of the claim that landlords have no competing autonomy interest. That claim indeed applies in the (usual) case of landlords which are large commercial corporations, where the pertinent burdens of accommodative duties are typically significantly diluted before they reach individual stakeholders.[6] By contrast, landlords’ interest should be taken seriously where they are individuals who may well rely on the rent they collect for their own livelihood, a clear example being seniors who use rent payments to cover the cost of an assisted living facility. This may suggest that the proposed rule should be limited to commercial landlords. In these asymmetrical contexts, relational justice theory indeed prioritizes tenants’ autonomy interest over landlords’ commercial interest (48).
Second, even in these contexts relational justice does not ignore costs and the larger concern about the excesses of (accommodative) duties. The reason for this is that, as already implied, the theory requires law’s architects to “shape private law with an ex ante perspective,” which means that they “should carefully attend to the likely implications of its potentially contending configurations and thus take seriously their incentive effects” (60). This requirement implies that while the commercial interests of these landlords should not be on a par with tenants’ housing interests, accommodative duties such as a mandatory waiver of security deposit should not be imposed when they are likely to significantly undermine the availability of sufficient rental units in the pertinent neighborhood, which is of course critical to the autonomy of potential tenants.[7]
* * *
Back to division of labor and onto structural injustice. Even if relational justice can be successfully grafted into private law, one may wonder how meaningful this would be. After all, “social problems like poverty and unemployment are extremely difficult for individuals to redress acting on their own”; hence, Stilz asks, “Will the [accommodative] duties in fact succeed at redressing a complex social problem like poverty?” (*95, *100).
Our answer is that it depends on which aspect of poverty (or any other social problem) we focus on. If the focus is on poverty’s distributive injustices, then we acknowledge that even a private law that is optimally tuned to address poverty as a challenge to relational justice is unlikely to solve poverty’s distributive injustices. Simply put, private law, grounded in relational justice, is indeed not designed to address the distributive injustices associated with poverty. Moreover, the comparative advantages of the public law mechanisms of tax and redistribution imply that they should play a primary role in this effort.[8]
But the value of “the justness of legally structured relational frameworks” is irreducible to the marginal contribution of private law to the amelioration of the distributive injustice of poverty. The reason is that the concern of distributive injustice, critical as it surely is, “does not exhaust the evils of poverty.” Poverty “affects the poor’s ability to interact with other people in terms of reciprocal respect for self-determination and substantive equality throughout the various (legally constructed) markets they routinely participate in—employment, housing, consumption, credit, et alia.” This is why we insist that “even if the state fully complies with its distributive justice obligations, the prescriptions of relational justice on the horizontal interactions constructed by private law remain” (63–64, 201–02).
The freestanding significance of the terms of horizontal interactions explains why relational justice theory perceives distributive injustices to be on par with other sources of vulnerability (hence our analogy of poverty to disability). It also points to our response to Stilz’s concern that relational justice’s accommodative obligations are unfairly distributed: for the theory the question is always, as implied above, what is the just burden of accommodation that is appropriate for this category of legally constructed interpersonal interaction. Recall that this constraint is integral to relational justice: Relationally just terms of interactions require respect for the self-determination and substantive equality of both parties.
The same analysis applies, mutatis mutandis, to other social problems, such as discrimination, which we also analyze in relational justice terms. In fact, it suggests, as we’ve hinted, that private law’s relational justice plays a critical, ineliminable role in addressing the structural injustices that triggered Stilz’s concerns.
Because structural injustices affect people at scale and have causes that are often hard to trace, they indeed cannot be ameliorated, let alone redressed, by a legal regime that is based solely on individual responsibility for specific acts of alleged wrongdoing.[9] But as clarified above, relational justice theory does not take its starting point to be that of assessing individuals’ behavior, but rather that of setting just terms of horizontal interaction; and it does so with exactly the right orientation for properly addressing structural injustices. Here is why.
Structural injustices are systematic micro patterns of disadvantage, which usually escape scrutiny because their entrenchment in the structure of our everyday lives often renders them invisible.[10] They are, as Sally Haslanger claims, contingent practices that “organize us in ways that are unjust/harmful/wrong.”[11] Relational justice theory exposes this contingency, highlights the legal foundations of its injustice, and directs law for making the structure of our everyday lives normatively defensible. It thus “requires us to examine the most fundamental building blocks of society—the scope of owners’ authority, the preconditions of promises’ enforceability, and what makes acts and omissions legal wrongs.”[12] It “helps to expose the pre-distributed burdens hindering members of disadvantaged groups in the pursuit of their life plans and in relating to others as equals.” In that, relational justice theory impresses upon the architects of the legally constructed frameworks that saturate our everyday life to fix “the currently tilted terms of interactions,” so as to ensure that they “comply with the injunction of reciprocal respect for substantive, rather than formal, equality”; that they “truly take people as they are rather than as abstract bearers of generic personality” (44).
II. On Social Morality and the Role of Equity
Mark Gergen subscribed to the vision of replacing traditionalism with relational justice: “If law can improve the world by demanding more of people in their interactions than Kantian principles, then it should. And [] this is the case even if Kantian principles conform to existing social morality” (*107). But he thinks there is no good reason to limit the ambition of relational justice theory to the law along these lines. He thus criticizes our “indifference to social morality,” or more precisely that we fall short of ascribing to the theory the task of “trying to improve social morality” (*106–*107, *109).
Gergen acknowledges that employing certain mechanisms in an attempt to improve social morality may be objectionable. Thus, one may—although Gergen doesn’t, at least not fully—object to trying to improve social morality by a rule that is based on certain mental states[13] or by discretionary equitable decisions. But whatever the power of these objections is, it cannot justify a general objection to law trying to improve social morality, because law can use other, unobjectionable mechanisms. As Gergen notes, law often improves social morality “just by being law”: Demanding more than social morality and expressing and justifying law in moralistic terms, so that people treat legal rules as moral rules, tends to “influence people to think in this way when they interact with others.” Moreover, “the modern state often tries to influence people’s ‘hearts and minds’ explicitly through public education and ad campaigns” (*110).
Gergen finds our position regarding social morality “untenable,” given the project’s aspiration “to inculcate a norm of treating others as substantive equals with an equal right to self-determination across a broad range of human interactions.” He argues that if relational justice sufficiently complies with liberalism’s commitment to neutrality amongst conceptions of the good—and elsewhere we explain that it does[14]—then there is no reason to abstain from proactively trying to use law to “improve social morality to align with the principle of relational justice,” assuming of course that this can be done, which clearly depends on a variety of socially contingent factors (*116–*118).
Gergen recognizes the challenge. It is not only that relational justice stands against the existing “morality of commercial exchange,” in which “people with wealth and power [can] seek the ‘maximum material advantage’ for themselves in all exchange relations” (*119, 122). Relational justice theory also prescribes “an unfamiliar way of thinking about how people appropriately treat others in economic interactions” (122). This way clearly ill-fits the “hierarchical terms” in which caring about unfortunate others was understood “in times past” (*120); and it also doesn’t fit the other “categories social theorists use to describe [how] people think about how they may appropriately treat other people in economic interactions” (*121). Rather, relational justice “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’” (*121). Gergen claims that relational justice’s distinctive voice must not be “a reason to give up on a project to make the maxim of reciprocal respect for autonomy and substantive equality a social norm,” which may be particularly urgent given the “toxic effects” of the morality of commercial exchange it seeks to substitute (*120–*122).
* * *
We begin where Gergen starts, but with a twist. We agree, of course, that substituting reciprocal respect for independence and formal equality, which is the normative DNA of traditionalist law (147), with reciprocal respect for self-determination and substantive equality would make the world into a better place. This, however, is not a sufficient justification insofar as private law, the law of our interpersonal relations, is concerned. For private law rules to be justified they should be accountable to the category of duty-owers, which means they should rely on a fundamental maxim of interpersonal obligation that can justify the distinct interpersonal burden they impose, at least when this burden is substantial and is imposed on private parties who don’t have disproportionate market power or provide some essential good (32).[15]
Part of the reason that makes relational justice the proper maxim for private law is that the legitimacy of private law’s power-conferring institutions, notably property and contract, relies on this very same maxim.[16] In other words, for the normative powers instantiated by private law to be legitimate, they must be circumscribed so as to comply with this maxim.[17] Relational justice is, as noted at the outset, not only private law’s lodestar, but also the premise of its legitimate authority.
Gergen is clearly correct that there are good reasons to hope that making private law compliant with relational justice may happily improve social morality. And as he further notes, law works best when people adopt its values, so making social morality closer to relational justice would also make a just private law more effective by making it more knowable to people and reducing the possible conflicting demands to which they may be subject (*116–*117). Finally, he is also right to recommend not only adopting the prescriptions of relational justice theory in private law doctrines but also inculcating the language of relational justice in private law discourse. This is important because the notion of relational justice clarifies that the theory’s prescriptions are not a matter of grace or benevolence (as they are from a hierarchical social perspective); and—critical to the way legal theory functions in guiding law—it helps direct judges and other lawmakers to critically examine law and change it, where necessary, in the right direction.
All this implies that improving social morality is a potential happy side-effect of making private law more compliant with relational justice. And this may be achieved with law just being law, as Gergen puts it, especially if (or where) many of law’s addressees employ what H.L.A. Hart famously describes as the “internal point of view” on law. For these people, legal norms are taken not only as predictions of judicial action, but also as standards and guides for conduct and judgment and as bases for claims, demands, admissions, criticism, and punishment. Hart’s law-abiding people voluntarily cooperate in maintaining law’s prescriptions irrespective of the probability of sanctions (or other hostile reactions) in cases of breach.[18] Gergen’s conjecture that broad social compliance with relational-justice-based legal rules may improve social morality seems plausible, which would obviously be a happy consequence.
While Relational Justice says nothing about this trajectory, our discussion of relational justice in the context of transnational wrongs in Chapter 15 of the book implicitly assumes that much. In the last part of Stilz’s review, which focuses on this context, she asks whether relational justice’s duties are legal or moral (*99-*100). Our response is that duties of accommodations of the relational justice type are legal even in this context since they are supposed to be baked into legally constructed frameworks, as emphasized above. But Chapter 15 indeed works somewhat differently than the other chapters in the book; it employs relational justice theory from a semi-Gergenite perspective. Its ambition is to provide victims of transnational wrongs with a language that can then be further legally instantiated, either domestically or via private international law’s doctrines such as public policy. The way to do so is to gradually entrench the notion of interpersonal human rights, a universal minimum of relational justice, which is supposed to work similarly to the way vertical human rights work in our current public discourse, where human rights such as free speech are deemed rights that should be legally instantiated in any decent legal system.
Back to the domestic context, on which Gergen focuses. Gergen suggests that private law should go further than simply being law: that it is justified and maybe even required to seek and employ (legitimate) mechanisms that would more forcefully improve social morality. This would indeed, as he writes, help the state “maintain and support an ethical environment in which people can thrive” (*116). But this clear public good would raise the justificatory question with which we’ve started, namely, whether imposing this additional burden on the specific categories of people subject to the pertinent private law can be justified. Insofar as that burden upon individual people’s self-determination is reasonable, the answer may be positive: Private law can legitimately be a home for people’s civic responsibilities of supporting, and not only complying with, just institutions.[19] Whether that burden is indeed reasonable and thus justified, or rather overly demanding and thus unjustified, is of course a matter of contingent empirical inquiry.
The significance of empirical knowledge for properly addressing the task of improving social morality goes well beyond this (normatively important) question. As Gergen writes, improving social morality through private law requires a rather complex context-dependent inquiry, as it implicates balancing “several competing considerations.” Those considerations include the following: the wrongness of “the behavior or practice [we] seek to change”; the embeddedness of “the targeted behavior or practice, and the norm of social morality that supports it”; and “the likelihood the behavior or practice will change, the likelihood social morality will change to align with law . . . , and the costs if social morality does not change.” The weight of “many of these considerations” is affected by the “size of the gap between the proposed law and social morality” (*117–*118).
Indeed, addressing the challenge of reforming social morality calls upon a set of questions which are very different from the ones that an enterprise of legal reconstruction such as relational justice theory must face. The point is not only that these different analyses require differing tools and modes of inquiry. Even if this cleavage does not necessitate an intellectual division of labor—we don’t deny that some scholars may be able to perform all these tasks—we should not blur the distinction between what would make a given system of private law more relationally just and how this can be extended to social morality. The answer to the former question is not only a necessary step towards answering the latter one but is also important in and of itself. One reason for this is straightforward: A clear vision of the proper private law regime is necessary to both evaluate the existing state of the law and adjudicate among competing proposals for its reform. Moreover, mixing a legal loadstar with strategy for improving social morality might cause analytical confusion and generate actual pitfalls.
One example of that emerges from Gergen’s discussion. As he claims, “relational justice could be presented as bringing the law of personal debt enforcement closer to social morality” by invoking “norms supporting forgiveness of debts and accommodating poverty” (*120). But this path is far from being “low hanging fruit,” because “there is a hitch”: these norms are “fundamentally illiberal,” that is, profoundly hierarchical (*120–*121). This means that an incautious resort to existing social morality in an effort to instantiate relationally just legal doctrine might end up backfiring. Reaffirming prevalent norms that are clearly antithetical to relational justice theory would surely be unfortunate since, as Gergen argues, a significant virtue of relational justice theory is its distinctive normative voice that rejects both hierarchy and the morality of commercial exchange.
* * *
With this, we turn to address a critique which is, as he says, somewhat tangential to Gergen’s main point, but may nonetheless benefit from a brief response. Gergen is generally sympathetic to relational justice’s adherence to the rule of law, discussed earlier,[20] which “puts off the table approaches” that give “people too little guidance and lawmakers too much discretion.” But he is worried that we go too far when ousting equitable discretion from the workings of relational justice theory.[21] This, he says, is less of a problem where private law resorts to broad standards, such as good faith, so that there is less “need to use equity to police opportunism.” But in “rule-based areas of law” our “rejection of equitable discretion has unattractive implications.” Equity, he insists, is valuable because it “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” (*111, 114-115) (emphasis added).
Equity as a historical enterprise has some critical shares in the gradual development of relationally just private law doctrines (61). Relational Justice nonetheless rejects equitable discretion, at least as influentially conceptualized by Henry Smith and shared herein by Gergen. Equity for Smith is “meta-law,” “a second-order component system [that] acts on the output or the structure of the first-order system.” [22] Equity intervenes in “a particularized fashion,” which means that “some hindsight is at the heart of equitable decisionmaking.”[23] Such particularized equitable decisionmaking is an anathema to relational justice’s commitment to the rule of law; happily, it is also unnecessary insofar as “the grand legal ambitions of the relational justice project” (*103) are concerned.
To see why, consider first good faith. Guarding against all types of objectionable behavior in contract performance with bright-line rules might generate technical non-intuitive complexity, which, in turn, could undermine the guidance value of rules. But this does not justify using good faith as an invitation for ad hoc discretion given the particularized circumstances of the case at hand.[24] And indeed, although framed as an open-ended standard, the good faith doctrine at its best operates quite differently, serving as a doctrinal framework for the gradual development of quite specific rules and a small set of much more informative standards (152–54).[25]
Our accounts of the many relational-justice-based doctrines discussed in Parts II and III of the book are structurally similar. These doctrines, we insist, “do not intervene in the second order because there are no prior, first-order rules they are supposed to operate on.” We acknowledge that “[t]he first time (or first few times) a court of appeals confronts a situation invoking relational justice concerns allows it to view this innovation as supplementing the first-order layer of rules with a second-order layer. But this added layer will, at some point, be assimilated into the former layer” (61). This is, in a sense, the story of the common law tradition (broadly conceived to include equity) in which judges occasionally use new cases as triggers for an ongoing refinement of rules, as well as opportunities to revisit the normative viability of the doctrine and gradually reform it, if needed.[26]
III. Private Law’s Real and Fictional Legal Persons
Abbye Atkinson sees relational justice as “aspirational in the best sense to the extent that it offers those person-to-person horizontal interactions a path that more fully embodies essential and shared humanity” (*134). But she claims that “[w]ithout a theory of reciprocity,” which “expressly accounts for what a human being may owe an artificial person,” relational justice theory “risk[s] marginalizing itself as a private law theory of everything” (*125).[27]
On the bright side, Atkinson seems to appreciate relational justice’s emphasis on the significance of the interpersonal dimension of people’s lives to their self-determination and substantive equality and thus to embrace its insistence that the frameworks of our interpersonal relationships private law structures should take seriously the typical differences between the interacting parties. We further read her to endorse the way we conceptualize these differences by reference to people’s self-determination and substantive equality, which imply, respectively, an application of “an autonomy accounting” (distinguishing interests that implicate people’s ground projects from those that are matters of sheer preferences) as well as “an egalitarian accounting” (considering imbalances of interest, power, and vulnerability) (*124–*129).
But then Atkinson points to a big lacuna, which might render the theory purely “aspirational” (*133). Relational Justice envisions private law through the prism of human interactions. But this is increasingly “the exception rather than the rule” (*132). Private law “often feature[s] a human on one side and an artificial person on the other side,” or “to the extent that two humans do interact with each other . . . at least one human is functioning as a mere agent of an artificial person” (*132). In other words, our daily lives “in the modern world” involve “private interactions between human beings and artificial persons” (*132); they are our typical employers, landlords, retailers, and lenders. Yet, Relational Justice is relatively thin in this respect. Atkinson points out that, by our own admission, we leave for another day a principled treatment of incorporated entities. She recognizes, to be sure, the guidance we do offer there: that in these interactions the principled differences between the participants should afford greater protection to the human participant, and that we can envision “a rough distinction between, on the one hand, incorporations that serve as a ground project of a natural person or group of persons and, on the other, those that do not” (*125, 129, 133 citing 66–67). But she is not satisfied by that.
Reciprocity, Atkinson writes, is “crucial” to our conception of private law. And given its “centrality,” its “conspicuous disappearance” in “the significant swath of private horizontal interactions between a human and an artificial person” is disheartening (*123, 125, 126, 132). What is most troublingly missing is an account that would guide us whether, and if so how, there is “any reciprocal obligation that a human being might owe to a corporation” given the way it “might serve as a ground project of [its] shareholders” (125). Atkinson uses as an example our discussion of poverty and the accommodative duties of developers, where we “do not take seriously the possibility that [our] prescription might undermine some human ground project that exists just beyond the corporate veil” (*131).
* * *
We begin with these last points, which can help to refine what exactly is missing now in relational justice theory. Atkinson is right, of course, that a full articulation of developers’ accommodative duties requires a more careful discussion of both parties’ pertinent interests. We hope that our response to Stilz per landlords’ accommodative duties[28] can begin the answer here as well. That response, however, does not yet consider the possibility of looking for autonomy and substantive equality behind the veil of incorporation, which is, of course, the core of Atkinson’s worries.
But before we approach this critical point, it is apt to clarify that what is missing is not a theory of reciprocity. It is no coincidence that the concept of reciprocity is rarely mentioned in the book. What is mentioned time and again is reciprocal respect for self-determination and substantive equality, which means that terms of interactions are to be set in a way that takes account of the required respect of both parties to each other’s self-determination and substantive equality.[29] This may seem a subtle distinction, but it is important here. It clarifies that Relational Justice does not purport to offer a theory of reciprocity, which means, of course, that in addressing human-entity interactions, we haven’t eschewed, relinquished, or abandoned reciprocity (contra 124, 128, 132). This does not suggest that Atkinson is wrong in highlighting a building block that is currently missing in the theory.[30] Rather, it points to what exactly is missing, and what is needed to fill the gap.
The requirement of respect for self-determination and substantive equality applies to both parties; but it, as Atkinson recognizes in discussing human-to-human interaction, often points out a principled asymmetry between the parties, given the pertinent differences in each party’s stakes (in terms of autonomy, of course) as well as structural imbalances of power and vulnerability. Therefore, what is missing is an account of the way private law should address self-determination and substantive equality with regard to incorporated entities, which would then tell us what humans may owe such entities.
* * *
Relational Justice takes, however, important steps that lay the groundwork for tackling this question. To see why, we need to recall its point of departure from traditional private law theory. Traditional theory, as well as conventional private law discourse more generally (think restatements and 1L casebooks, for example), tend to treat the parties to private law interaction as As and Bs, abstract interchangeable beings. Relational justice repudiates this foundational—typically implicit—role of formal equality. It emphasizes the significance of differences between parties, and thus opens the moral space to consider the autonomy stakes and substantive equality’s concern for power differentials while setting up private law’s terms of interaction.
This dramatic shift is what enables, indeed underlies, the proposition that private law should focus mostly on people’s interests in certain human-entity interactions; where the entity at hand is both large and purely commercial so that legal burdens are likely to be significantly diluted before they reach individual stakeholders. This proposition is of course imprecise. But exactly because the contexts in which the human-entity disparity is so distinct are prevalent, this proposition can often be quite informative and thus practically meaningful.[31]
Much more is surely required for relational justice to properly address more subtle cases of entities which interact with humans (or amongst themselves). But as the corner, easy case just noted implies, there is an important continuity between the theory’s prescriptions regarding human-to-human interactions and those addressing human-to-entity interactions. Put differently, the theory’s prescription of looking for the autonomy stakes and power differentials of the typical parties while shaping law’s frameworks for human-to-human interactions also applies, mutandis mutatis, where people interact with incorporated entities, rather than other people.[32]
* * *
The missing link requires, as noted, unpacking the interests of incorporated entities that call for respect. In Atkinson’s words, because “humans [increasingly] choose to order their daily affairs and engage in their ground projects through collective structures like the corporation,” private law theory “must include some theory of human autonomy in artificial personhood” (*133). One way to do so is by recovering (and reconstructing) the legacy of “law’s two persons.” This is an ambitious project which one of us embarked upon with Ela Leshem.[33] For our purposes, it suffices to highlight the critical (reconstructed) distinction between “real” legal persons and “fictional” legal persons, specifically those of incorporated entities.
Here is a rough sketch: The legal personhood of real persons is grounded in their equal moral personhood. This means that real legal persons (should) enjoy a robust presumption of equal legal rights and duties, any derogation from which requires moral justification. Fictional legal persons are qualitatively different. Legal personhood on that side of the divide serves to protect entities with either intrinsic or purely instrumental value. Therefore, insofar as fictional legal persons (such as incorporated entities) are concerned, liberal law (should) start from a no-personhood baseline and compile a narrowly tailored bundle of legal incidents inasmuch as it is justified by their (intrinsic or instrumental) functions.
This schema implies that, as Meir Dan-Cohen argued some years ago, an incorporated entity can make two types of claims on us. First, it can “make a valid claim on its own behalf [] if the claim is somehow linked, directly or indirectly, to one of the goals which define and legitimize [that type of entity].” Second, it can also make claims where its function implicates individuals’ autonomy insofar as it can credibly invoke, rely on, or have rights that are derivative of those of these real legal persons.[34]
Dan-Cohen’s distinction points out three propositions which would be helpful in this reconstructive effort. First, that the functions of a pertinent entity can help define its legitimate claims. Second, that once an incorporated entity is recognized as a (fictional) legal person, it is not meaningless to inquire as to imbalance of power and vulnerability (even though it is hard to think of human-entity interactions with power imbalances favoring the human). Finally, that people’s autonomy stakes, on which relational justice theory heavily relies, are relevant again. Tracking our sheer preferences/ground project distinction, the core question here is whether the role of the (type of) incorporated entity at hand goes beyond people’s welfarist interest;[35] whether, insofar as the category of interactions at hand is concerned, it can be credibly described as playing a constitutive role in the lives of its human stakeholders.[36]
IV. The Role of Legal Theory and the Value of Relationships
Daniel Viehoff finds one of Relational Justice’s “distinctive virtues” to be its challenge to the “inherently libertarian bent” of theorizing about private law and, instead, its articulation of “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” (*82). He focuses his review on the moral foundations of relational justice: its place within moral theory, and on its ability to ground its legal prescriptions in the moral ideal of relational equality.
With respect to morality, Viehoff observes that relational justice is “answerable to the moral ideals appropriate to interpersonal relationships,” which in turn implies a “‘deep congruence’ between interpersonal morality and private law” (*82, *83). In unpacking this congruence and Relational Justice’s more precise position, Viehoff invokes two basic distinctions in moral theory. On his reading, the theory embraces one distinction, while discarding another.
First, Viehoff interprets relational justice as presupposing the familiar two-system picture of the relationship between law and morality. On this picture, private law, as the law of interpersonal rights, applies normative prescriptions developed in the domain of interpersonal morality while adapting them to the institutional circumstances and constraints of legality. Viehoff therefore concludes that the moral underpinning of relationally just private law is “downstream” from the moral theory of interpersonal relationships, or “private egalitarianism” (*84). Normative private law theory, in this view, occupies the receiving end of the relationship between the systems of morality and legality.
Second, Viehoff claims that relational justice theory departs from moral theory in that 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” (*83).
Lastly, Viehoff’s more specific and substantive point relates to our account of relational equality. Here, Viehoff questions whether relational justice can deliver on its promise to provide a normative framework for private law’s structuring of interpersonal relationships in ways that are answerable to the demands of “private law egalitarianism.” Viehoff’s concern is that the ideal of substantive equality at the moral core of relational justice (alongside self-determination) lacks the normative resources needed to justify important aspects of the interpersonal rights and duties recognized by private law.
* * *
Begin with the place of relational justice in moral space as characterized by the distinctions between law and morality and between right and virtue. In this respect, Viehoff characterizes our view backwards: we resist the view that private law is downstream from interpersonal morality, while embracing the distinction between right and virtue.
Consider first Viehoff’s claim that relational justice, as a theory of private law’s morality, is derivative of interpersonal morality. This two-system picture is, implicitly or explicitly, widely invoked in legal and political philosophy.[37] It is surely correct with respect to straightforward instances of legal enforcement of clearly determined moral injunctions, such as the duty not to deliberately punch an innocent person in the face. It loses force, however, once we move beyond such cases to address questions that raw interpersonal morality—that is, the pre-legal morality of what we owe to each other—lacks the normative resources to resolve (36, 252 n.33). The two-system picture fails altogether when private law engages not in recognizing and enforcing fully specified pre-legal moral demands, but in facilitating and empowering forms of human action that are neither required by nor exist within pre-legal morality (34–35).[38]
Thus, whereas some tort law rules merely replicate interpersonal morality, many others exemplify the way private law facilitates conduct, including excessive risk-taking and even harm-inflicting practices, that can hardly be understood as downstream implications of pre-legal interpersonal morality.[39] This difference law makes in moral space by empowering human action is even more clearly illustrated by the power-conferring institutions of contract and property. Here, private law is not merely in the business of recognizing preexisting wrongs and providing mechanisms for their enforcement. Nor is it simply rendering inchoate moral prescriptions more determinate. Rather, contract and property are constitutive of human and social relationships (35–36). Their moralities therefore stand at the headwaters, rather than downstream, of interpersonal morality.
This means that moral and political philosophy is, in part, a legal theory of the less straightforward—or even non-straightforward—dimensions of interpersonal morality. These dimensions are obscured by the two-system picture in which legal theory is merely a beneficiary of moral and political philosophy. Relational justice seeks to fill the gap by offering a liberal theory of the legal rules and institutions that constitute the less straightforward dimensions of interpersonal morality.
That said, the morality of relational justice does not abandon the broadly Kantian distinction between right and virtue. A crucial manifestation of this distinction in relational justice theory is the exclusion of motivations from the justification of private law’s terms of interaction. Accordingly, the reasons for action underlying the legal prescriptions of relational justice make no reference to motivation. Rather than seeking compliance motivated by relationally just terms of interaction, private law requires only conformity to those terms.[40] What motivates people to conform therefore has no bearing on whether the terms themselves, or conduct in conformity with them, satisfy the demands of justice.
The “[c]ritical distance” between grounds and motivations implies that duties of virtue necessarily lie beyond the proper scope of a relationally just private law (53). This is because duties of virtue require compliance, not merely conformity: their fulfillment depends on duty-holders acting from the appropriate motives when discharging those duties (53, 148–49).
Perhaps our extensive defense of accommodative duties and duties of easy rescue creates the impression that relational justice pushes against the boundary between the morality of right and the morality of virtue. That impression is mistaken. On our account, these are duties of right, and their justification neither does nor should appeal to virtue. Rather, they are justified in the same way as negative private law duties—by reference to relational justice’s commitments to self-determination and substantive equality. Put differently, Relational Justice fully endorses the exclusion of the morality of virtue from the domain of the liberal legal order, while resisting “the view that interpersonal affirmative duties are always and necessarily duties of virtue.” One of its distinctive contributions is to show that the distinction between right and virtue does not coincide with the distinction between negative and affirmative duties; that some affirmative duties are duties of right (29, 53, 89–91, 160).
* * *
A relationally just private law constructs terms of interaction that treat participants as substantive equals (49–52) and, in doing so, vindicates, as Viehoff puts it, their basic “interests in being treated (related to, interacted with) in distinctly egalitarian, or at least not distinctly inegalitarian, ways” (*85). Viehoff nevertheless questions whether relational justice possesses the normative resources to address the “egalitarian requirements that arise directly from within relations among private persons” (*84). His specific concern is that the liberal-egalitarian commitments underlying Relational Justice cannot account for the full range of interpersonal interactions governed by private law. On his view, the most compelling egalitarian grounds available to us are based on relationships of “non-instrumental value,” such as marriage, friendship, and some instances of employment and neighborly relations (*88). By contrast, many other private law interactions lack any non-instrumental value.[41] Consider, for example, involuntary encounters between risk-creators and risk-bearers, or fleeting contractual transactions between consumers and sellers. According to Viehoff, such cases fall outside—or ought to fall outside—the “moral ideals” (*88) that animate Relational Justice and contemporary philosophical accounts of relational equality.[42]
Relational Justice’s philosophical starting point is importantly different. Although the non-instrumental value of a relationship may be sufficient to subject it to the demands of equality, we argue that it is not necessary. The normative significance of egalitarian terms of interaction therefore does not depend on whether the interaction, ongoing or episodic,[43] is non-instrumentally valuable. Even relationships that are purely instrumental can give rise to egalitarian concerns sufficiently weighty to require that their terms of interaction conform to the “egalitarian requirements” defended in Relational Justice, namely, the principle that persons should relate to one another as substantive equals (49–50).[44]
To see why, consider the paradigmatic case of a one-off conflict between the liberty interest of a motorist and the life and limb interest of a pedestrian. Their actions and omissions are governed by the terms of interaction established by tort law. Those terms apply to these strangers simply as private persons whose practical affairs happen to place their interests on a potential collision course. The absence of intrinsically valuable relationship notwithstanding, tort law must still determine what they owe to each other—for example, by deciding whether one owes the other a duty of care and what that duty requires. We contend that tort law must not neglect addressing whether the terms of interaction between the parties, including the duties they owe one another, reflect an interest in relating to others, and in being treated by tort lawmakers, as substantive equals. As explained in more detail elsewhere, this contention rests on two necessary elements.[45]
First, any resolution of this conflict of interests, including the decision to leave it unresolved, inevitably requires an egalitarian judgment. Determining what each party is entitled to do, or required to refrain from doing, determines how that party—viewed as a free and equal agent—stands in relation to the other. Tort law therefore determines the terms on which they relate to one another. A liberal law of torts cannot prescribe inegalitarian terms of interaction, say, by relieving the motorist of the duty to exercise due care toward the pedestrian. The defect in such a rule need not lie in its inefficiency or its distributive consequences.[46] Rather, it is wrongful because, given the relative importance of the parties’ interests, it fails to establish terms under which they relate to one another as substantive equals. The relational question is, therefore, inescapable: because tort law necessarily specifies the parties’ rights and duties, it must determine whether they stand in a relationship of substantive equality or inequality.
The second element that calls for an egalitarian judgement is that the conflicting interests at hand in this interaction of instrumental value are fundamental to either party’s ability to function as a free and equal agent. Tort law governs interactions, or aspects of interactions, that implicate interests in bodily and emotional integrity, privacy, reputation, and other fundamental ones.[47] Given the moral significance of protecting such interests—for example, by preventing serious physical injury through the exercise of due care—the purely instrumental nature of the value of the parties’ interaction does not relieve a liberal law of torts of the obligation to resolve their conflict by establishing egalitarian terms of interaction.[48]
* * *
Thus, our response to the Viehoff-type of the “Why Relational Justice” question is that relational justice theory challenges the widely held views in moral and political philosophy concerning the relationship between law and morality, the proper delineation of the right/virtue distinction, and the scope of the egalitarian ideal of relating as equals. As a theory of private law (the sub-title of our book), Relational Justice addresses these three themes from law’s viewpoint. But our proposed reconstructions—highlighting the indispensable contribution of legal theory to moral and political theory, identifying a normatively attractive boundary between right and virtue, and noting the significance of our egalitarian commitments to the terms of interactions between strangers—are no less relevant to moral and political philosophy. To that extent, both Relational Justice and this Response should be read as an invitation to further engagement.
Concluding Remarks
Private law theory has a proud legacy stretching back to antiquity, which has been continually renewed and updated. Part of its task comes from the changing reality in which it operates; think AI or climate change. But alongside these important challenges, private law theory has always faced an enduring challenge coming from within, so to speak. Private law, like law more generally, is a justificatory practice: Because law claims to have the legitimate authority, including over monopolized power in society, its carriers must always justify its prescriptions and should moreover seek to further improve the law so that it lives up to its implicit and often imperfectly executed promises.
In Relational Justice we attempted to rethink the normative foundations of private law along these lines and chart the path for a just reconstruction. We are very grateful for the thoughtful critical reviews of this Symposium, which pushed us to clarify and refine, and hopefully also better defend, relational justice theory. We approach this project as an ongoing work-in-progress, even though the book is out (now in paperback!). So, we are looking forward to continuing the dialogue in the joint pursuit of making private law more (relationally) just.
Copyright © 2026 Hanoch Dagan* and Avihay Dorfman**
* Elizabeth J. Boalt Distinguished Professor of Law, Berkeley Law School and Founding Director of the Berkeley Center for Private Law Theory.
** “The Friends of Joe Jamail” Regents Chair in Law and Founding Academic Director of the Private Law Theory Program, University of Texas at Austin.
[1]. Hanoch Dagan & Avihay Dorfman, Relational Justice: A Theory of Private Law (Oxford Univ. Press 2024). Subsequent references appear parenthetically in the text.
[2]. See Anna Stilz, Are There Private Law Duties to Accommodate the Poor?, 17 Calif. L. Rev. Online 91 (2026); Mark P. Gergen, Relational Justice and Social Morality, 17 Calif. L. Rev. Online 102 (2026); Abbye Atkinson, The Limits of Reciprocity in Relational Justice, 17 Calif. L. Rev. Online 123 (2026); Daniel Viehoff, Private (Law) Egalitarianism, 17 Calif. L. Rev. Online 82 (2026). Subsequent references appear parenthetically in the text with an asterisk (to distinguish them from references to Relational Justice).
[3]. In addition, Stilz asks whether relational justice’s duties of accommodation are legal or moral (*99–*100). We respond to this part of her review in Part II, since it closely relates to Gergen’s critique. See infra text following note 18.
[4]. Iris Marion Young, Responsibility for Justice 44 (2011).
[5]. See also Hanoch Dagan & Avihay Dorfman, The Work and Values of Relational Justice, L. & Phil. (forthcoming 2026).
[6]. See Meir Dan-Cohen, Rights, Persons, and Organizations: A Legal Theory for Bureaucratic Society 60, 63–64, 74, 77 (1986).
[7]. Cf. Gregory C. Keating, Reasonableness and Risk: Right and Responsibility in the Law of Torts 202–03 (2022).
[8]. The cautious language of the text is intentional, since a radical division of institutional and moral labor between private and public law is not viable, even in a closed economy. See Hanoch Dagan, A Liberal Theory of Property 120–21 (2022). Globalization significantly exacerbates the difficulty. See Tsilly Dagan, The Global Market for Tax and Legal Rules, 21 Fla. Tax Rev. 148 (2017).
[9]. See Jonathan Wolff & Virginia Mantouvalou, Introduction, in Structural Injustice and The Law 1, 3 (Jonathan Wolff & Virginia Mantouvalou eds. 2024); Colm Ó Cinnéide, ‘Cruel Optimism’: The Limits of Legal Liability as a Tool for Engaging with Structural Injustice, in Structural Injustice and the Law, Id., at 32, 33-34, 52, 54–55.
[10]. See Khiara M. Bridges, Critical Race Theory: A Primer 148–49 (2019).
[11]. Sally Haslanger, Systemic and Structural Injustice: Is There a Difference?, 98 Philosophy 1, 22 (2023) (emphasis added). Cf. Andrea Sangiovanni, Structural Injustice and Individual Responsibility, 49 J. Soc. Phil. 461, 461-62 (2018).
[12]. See also Hanoch Dagan, Advanced Introduction to Private Law Theory 119–24 (2025). Stilz is thus wrong to treat property and contract law as part of private law’s background regime, in line with taxation and the provision of health care, education, and public transportation (*95).
[13]. As Gergen recognizes, we also do not object to all rules that rely on mental states. We only insist that liberal law should not inquire into people’s “motivation for conforming with its demands” (53). The souls of the alienated, as Gergen refers to those who don’t take these rules to heart, need not—indeed must not—be legally reformed (*113–*114). In other words, liberal law must not seek to control how people think, let alone feel, when they do the right thing. See also infra text accompanying note 40. It should allow people the breathing space to govern their lives within more-or-less knowable rules and, as long as they conform to those rules, to have the freedom of action and thought.
[14]. See Dagan & Dorfman, supra note 5.
[15]. This is one of the reasons that make the justificatory burden of private law weightier than that of public education and ad campaigns.
[16]. See generally Dagan, supra note 8; Hanoch Dagan & Michael Heller, Liberal Contract Theory—Part I of Freedom Through Contract (Apr. 1, 2025), ssrn.com/abstract=5176909.
[17]. See Hanoch Dagan & Avihay Dorfman, The Powers of Discrimination (May. 5, 2025), ssrn.com/abstract=5202668.
[18]. H.L.A. Hart, The Concept of Law 79–88 (1961).
[19]. See John Rawls, A Theory of Justice 293–94 (rev. ed. 1999).
[20]. See discussion supra p. 169.
[21]. Relatedly, Gergen is critical of our rule-of-law-based skepticism about open-ended standards (as opposed to informative ones), claiming that at times they are aimed at encouraging “situational moral deliberation,” not only by law’s makers but also by its subjects. This is, he argues, partly why “the determination of breach of the duty of reasonable care in negligence law is a jury question in U.S. law” (*112). Relational justice is a theory of private law, rather than of American private law, which means for us that the role of jury is not constitutive of what the standard of due care, let alone negligence law, requires. See Avihay Dorfman, Conflict Between Equals: Tort Law Beyond Wrong, Harm, and Cost 294 (2026). At any rate, our view is not inconsistent with U.S. tort law. Three of the most canonical U.S. cases on how to determine the standard of due care are judge-made. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2nd Cir. 1947); T.J. Hooper, 60 F.2d 737 (2d Cir. 1932); Adams v. Bullock, 128 N.E. 93 (N.Y. 1919). There are good reasons to believe that these cases (of which the first two are in maritime law) have been highly influential on the way courts, including by instructing juries, decide the breach question. See further Dorfman, supra, at 293–310.
[22]. Henry E. Smith, Equity as Meta-Law, 130 Yale L.J. 1050, 1055, 1059, 1079 (2021).
[23]. Id.
[24]. Cf. Dagan, supra note 8, at 166–68.
[25]. Cf. Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577 (1988).
[26]. See respectively Joseph Raz, The Authority of Law 183–89 (1979); Karl L. Llewellyn, The Common Law Tradition: Deciding Appeals 36, 38, 217 (1960).
[27]. Atkinson also implies that we inflate the role of relational justice in private law, insisting that “private law can have multiple orienting principles” (*134). As noted in the Introduction, we do not deny the possible role private law can play in advancing various collectivist goals. However, we insist on the following two: that such goals cannot override the basic demands of relational justice and that relational justice is private law’s distinctive normativity. See Dagan & Dorfman, supra note 1, at Ch.2.
[28]. See discussion supra pp. 169–70.
[29]. By requiring respect we do not require the parties to acquire certain pro attitudes or motives that, in the morality of virtue, come with some conception of respect. Our discussion of the distinction between right and virtue in the response to Viehoff further clarifies this point.
[30]. While Relational Justice does not develop a theory of reciprocity, it does set limits on what an adequate theory of reciprocity for private law in a liberal legal order might look like. One limitation is that reciprocity must not be predicated on notions of either formal or strict equality (137). Another limitation is that it must not require the reciprocating parties to possess specific attitudes or to act from specific motives.
[31]. See, e.g. Hanoch Dagan, Mark P. Gergen, and Michael Heller, Making Consumer Contracts Legally Unremarkable, 105 N.C. L. Rev. (forthcoming 2026).
[32]. This continuity can also have implications for moving from substantive equality to fairness when it comes to interactions between humans and living organisms. See Avihay Dorfman, Relational Justice, in The Oxford Handbook of Climate Change and Private Law 49 (Douglas A. Kysar & Ernest Lim eds., 2026).
[33]. See Ela A. Leshem & Hanoch Dagan, Law’s Two Persons (unpublished manuscript). There is another critical implication of the significance of incorporated entities to people’s life in the modern world, one that goes beyond what is needed to prescribe what obligations humans may have towards such entities. Both Atkinson’s Review and our Response take the way such entities—specifically, commercial corporations—are currently structured as a given. But private law theory must critically evaluate current (economic) orthodoxy. Relational justice theory suggests that the theory of the firm should be grounded in self-determination and substantive equality of real people, rather than in efficiency, which means, inter alia, that workers must be reconceptualized as key actors, rather than as factors of production, as the dominant (Coasean) paradigm suggests. This is another formidable challenge we are working on in a different project co-authored with Katharina Pistor.
[34]. See Dan-Cohen, supra note 6, at 14, 57-69, 74-78.
[35]. Atkinson provides two examples, which can be generalized into operational categories for private law to employ. First, “a sole proprietor may incorporate her business to guard against risk of catastrophic personal loss to her family” (*133). Second, “[p]ublic teachers may pool their retirement savings into a pension fund that purchases shares in a financial institution to maximize each teacher’s ability to live a good life upon his retirement” (*133). The second example need not—and we suppose should not—imply that financial institutions have any independent autonomy claim. Rather, it means that the rules governing these institutions must be reconfigured in a way that properly reflects this crucial fact.
[36]. For an application of these considerations in the context of entity-to-entity interactions, see Hanoch Dagan & Seth Davis, Interpreting Intergovernmental Contracts (Liberally) (unpublished manuscript).
[37]. For more on the add-on conception of the difference law makes in moral space, see Avihay Dorfman & Alon Harel, Reclaiming the Public 45-47 (2024).
[38]. Notice that here, as in Relational Justice, we refer to law as including law-like systems of social norms (57).
[39]. See Dorfman, supra note 21, at 100-17.
[40]. For more on the compliance/conformity distinction sees Joseph Raz, Practical Reason and Norms 178–82 (1999).
[41]. As Viehoff correctly notes, a different grounding of private egalitarianism (what he calls the “abstract egalitarian argument”) appeals to the notion that “everyone’s interests matter equally” (*86). We set this view to one side.
[42]. See, e.g., Daniel Viehoff, Democratic Equality and Political Authority, 42 Phil. & Pub. Aff. 337, 352 (2014). See also Samuel Scheffler, The Practice of Equality, in Social Equality: On What It Means to Be Equal 21 (Carina Fourie et al. eds., 2015).
[43]. Contra Niko Kolodny, The Pecking Order: Social Hierarchy As A Philosophical Problem 98 (2023).
[44]. The significance of moral (or egalitarian) concerns cuts across the distinction between non-instrumental and instrumental value. For instance, some of the most important goods, and even some relationships, can be purely instrumental. Water and certain physician-patient relationships are cases in point. More generally, that something has non-instrumental value does not necessarily make it more important, normatively speaking, than something whose value is purely instrumental. The demands of equality should sometimes (or rather always?) track moral significance.
[45]. Dorfman, supra note 21, at 246–47.
[46]. Consequentialist justifications for who owes care to whom such as efficiency and distributive justice depend on a set of highly contingent assumptions about the world.
[47]. Dorfman, supra note 21, at 46–49.
[48]. See further Hanoch Dagan & Avihay Dorfman, Postscript to Just Relationships: Reply to Gardner, West, and Zipursky, 117 Colum. L. Rev. Online 261, 263 (2017).
