RAWLS AND TORT LAW: A CRITIQUE OF RIPSTEIN

Abstract

The article challenges Arthur Ripstein’s theses on the place of private law (and tort law in particular) in John Rawls’ theory of justice. According to Ripstein, Rawls’ theory of justice grants private law a certain independence by exempting it from the distributive injunctions of the principles chosen in the original position. This conclusion has two bases, one negative and the other positive. On the negative side of the argument, Ripstein claims that Rawls’ original position does not lend itself to guiding the design of institutions, especially those institutions with a deontological structure such as tort law. On the positive side, Ripstein resorts to the idea of a division of responsibility between citizens and social institutions (an idea that Rawls presents in “Social Unity and Primary Goods”) to demonstrate Rawls’ commitment to a pre-institutional conception of ownership and to the independence of private law that would ensue. The article argues that Ripstein is wrong in neglecting the role of the original position and the principles chosen in that position and exaggerates the consequences for private law of the division of responsibility between citizens and institutions. KeyWorDs: tort law; Rawls; Ripstein; distributive justice; corrective justice