Social Philosophy and Policy


Kevin A.  Kordana  a1 Professor of Law and Nicholas E. Chimicles Research Professor in Business Law and Regulation and David H.  Tabachnick  a2 Ph.D. Candidate in Philosophy
a1 University of Virginia School of Law
a2 University of Virginia

Article author query
kordana ka   [Google Scholar] 
tabachnick dh   [Google Scholar] 


We argue that for theorists with a post-institutional conception of property, e.g., Rawlsians, there is no principled reason to limit the domain of distributive justice to tax and transfer-both tax policy and the rules of the private law are constructed in service to distributive aims. Such theorists cannot maintain a commitment to a normative conception of private law independent of their overarching distributive principles. In contrast, theorists with a pre-institutional conception of property can derive the private law from sectors of morality independent of distributive justice. Nevertheless, we argue, this does not entail that the private law, for pre-institutional theorists, must be sanitized of equity-oriented values. Non-libertarian pre-institutional theorists holding principled commitments to equity-oriented values are free to invoke either tax and transfer or the rules of the private law to attain them.


a We are grateful to John G. Bennett, Harry Dolan, Edward McCaffery, and Ellen Frankel Paul for written comments on a previous draft and to Eric Mack, Fred Miller, Jeffrey Paul, A. John Simmons, and the other contributors to this volume for valuable discussions.