Acceso usuarios
Leandro Martins Zanitelli
In the literature about the place of private law in Rawls’s theory of justice, instrumentalists and anti-instrumentalists oppose each other. While, for the former, private law (or at least parts of it) is just one more among the institutions that must conform to the two principles of justice as fairness (including the difference principle), the latter advocate for a form of justice proper to private law, usually designated as corrective justice. A notable feature of this divergence of interpretations is that the authors rarely confront their opponents. Anti-instrumentalists treat instrumentalism in the Rawlsian version (i. e., instrumentalism in the service of the two principles of justice) as just one more form of instrumentalism among others. More recently, anti-instrumentalists have also preferred to advocate the thesis of private law as corrective justice on the basis of Kant rather than Rawls. Instrumentalists, in turn, tend to limit themselves to the exegesis of Rawls’s writings in the basic structure to conclude that private law has characteristics that make it belong to that structure. By doing so, instrumentalists ignore more sophisticated arguments found in the writings of anti-instrumentalists. The purpose of this article is modest. It is about listing some of the blind spots of this debate, with emphasis on certain theses of anti-instrumentalists to which instrumentalists have paid little attention.
