Democracy is ordinarily thought to require what John Rawls called an overlapping consensus on principles that govern our basic structure. The aspiration is not total agreement, but debate becomes dangerous when citizens do not share a commitment to basic political-moral principles. We usually look to three kinds of institutions to generate and preserve something like an overlapping consensus in liberal democracies: the design of electoral institutions themselves; the press, and; education. I will point to another, perhaps unlikely, site for public discourse: private law. Private law helps to manage reactive discord between citizens as they encounter each other in public spaces, such as public streets and commercial markets. While interactions in these public spaces rarely directly implicate the salient political questions of the day, our assessment of what we owe each other in these interactions turns on political-moral questions that underlie broader policy debates. By offering authoritative resolutions to our private disputes on terms that are self-consciously consistent with community norms and conventional morality, private law operates as a centripetal force on the political community, allowing us to work through principles at the bilateral level that we can then extend to other matters of public policy.
Aditi Bagchi is a Professor of Law at Fordham University in New York City. She writes primarily about contract law, especially contract interpretation and questions in political and moral philosophy as they arise in contract. She has a related interest in the comparative political economy of contract, labor and corporate law. Professor Bagchi previously taught at the University of Pennsylvania Law School and has been a Visiting Professor at Yale Law School and Columbia Law School. She obtained her JD from Yale Law School, an MSc in Economic and Social History from Oxford University, and an AB in Government and Philosophy from Harvard College.