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Anthony Kronman rejects the argument that redistribution by contract law encroaches more on individual liberty than does redistribution by tax law.
Redistribution by Tax Law Versus Private Law: Do Both Intrude Equally on Liberty?
This difference between the two methods of redistribution can be clarified by considering Margaret Radin's "property as personhood" theory.
Based on the foregoing discussion, it seems that contrary to Kronman's claim, redistribution by means of contract law does in fact intrude more on one's liberty interest than redistribution by the tax system.
68) Thus, compared with the losses and gains of liberty involved in tax redistribution to strong and weak parties, respectively, an increased interference with the liberty of the strong party by tort law redistribution might be offset, in whole or in part, by an increase in liberty of the weak party.
Private Law Redistribution Intrudes More Than Tax-Based Redistribution--And It's a Good Thing, Too
Kronman's second argument in favour of using private law as a mechanism for redistribution is more promising.
74) A further important insight concerning private law redistribution is that the effectiveness of redistributing different entitlements varies with the type of entitlement.
If we truly aspire to bring about a significant change in the well-being of the disadvantaged, we should therefore be willing to use private law in a principled and premeditative way; we should not be content with merely engaging in a limited redistribution by the tax system.
79) Merely effecting progressive redistribution of wealth by the tax system will not do.
Even if it were true (contrary to Kronman's second claim) that the interest in enhancing equality cannot justify the additional restriction of liberty arising from the use of contract law to engage in redistribution, there is still room to argue that a different conclusion is warranted with regard to tort law.
While such a conclusion involves problems of incommensurability, I would like to distinguish between three different claims, each of which supports the use of tort law as a mechanism for redistribution.