Postscript to Just Relationships: Reply to Gardner, West, and Zipursky

In “Just relationships” (116 Colum. L. Rev. 1395 (2016)), we developed a novel theory of private law for a liberal legal order. We argued that private law assumes the moral responsibility to determine just terms of interactions among private persons. Its most basic organizing ideas are substantive freedom and equality. Professors John Gardner, Robin West, and Benjamin Zipursky offer fascinating comments on our theory. Their rigorous engagement with our work and the penetrating insights they each develop provide an excellent opportunity for us to pose and reflect on some of the basic questions that arise in connection with the theoretical study of private law. This short response is organized around three issues: the normative status of private law, the private-law/public-law distinction, and interpretation and social criticism. It focuses on these issues because they reflect key areas of disagreement between our commentators and our account of private law. Elaborating them can help us clarify and refine our characterization and justification of private law, defined as the law governing the interactions among private persons.