However, even in terms of the promotion of liberty alone, redistribution by tort law is superior to redistribution by the tax system, since the increase in the liberty of the disadvantaged under tort law outweighs the decrease in the liberty of the privileged.
According to the egalitarian approach, redistribution which does not maximize overall liberty in society might be superior to the alternative--maximizing distribution--provided the former distribution is more egalitarian.
In summary, while it might be true that private law regulation more extensively (or intrusively) curtails the liberty of the privileged than does redistribution by the tax system, given the trade-off between liberty and equality, those who are committed to an egalitarian agenda should endorse private law regulation at least as a complementary mechanism to taxation in order to better achieve the desirable distributive goal.
A first response to the claim is that the existence of an alternative mechanism for redistribution that is theoretically less costly does not in itself justify refraining from using private law for redistributive purposes.
In addition, one should not ignore the different, principled, symbolic meanings of redistribution in the two systems.
The excessive cost argument assumes that (1) advancing equality by private law would necessarily cost society too much in terms of predictability and liberty, and that (2) the same degree of equality can be achieved more cheaply by tax-based redistribution.
While private law redistribution might burden the privileged more than does tax-based redistribution, it is also likely to better advance the liberty interests of the disadvantaged.
Law's normativity, as well as the recognition paradigm, suggest that private law will at times be more potent than tax law in affecting progressive redistribution of entitlements.
1) For a list of relevant literature, see Tsachi Keren-Paz, "An Inquiry into the Merits of Redistribution Through Tort Law: Rejecting the Claim of Randomness" (2003) 16 Can.
Second, public choice theory might lead to the conclusion that court-made redistribution may not be problematic, despite the fact that judges are not accountable.
20) For a rejection of the claim that the redistribution achieved by the private law mechanism is partial and thus results in outcomes that are inferior to the status quo, see Keren-Paz, "Redistribution", supra note 1.
at 100-04 (suggesting that partial redistribution by courts either may be superior to the status quo distribution per se or may trigger a complementary redistribution by the legislature).