Poverty and Private Law: Beyond Distributive Justice

Abstract

Poverty has so far been overwhelmingly understood as a state of distributive injustice. As a result, the debate in private law theory about the role of private law in alleviating poverty has essentially collapsed into the question of whether private law could, and should, promote distributive justice. We challenge the terms of this debate and, in particular, poverty’s reduction to its distributive dimension. We argue that poverty is a social condition with direct implications for the transactional freedom and equal standing of the person affected by it. In particular, poverty can impair one person’s ability to interact with another on terms reflecting reciprocal respect for their self-determination and substantive equality. Focusing on this relational dimension implies that the question poverty poses to private law is whether some of its instantiations ought to be tackled by setting just terms of interactions between private persons, even when these terms fall short of, or even violate, the demands of distributive justice. Our account also identifies institutional limitations on the operationalization of poverty accommodation in private law on the one hand, while elaborating promising ways for incorporating poverty into a broad range of private law interactions on the other. We show that the provision of goods and services, education, housing, and legal services can incorporate private law duties of poverty accommodation. We further show that the doctrines of minimum wage, non-waivable warranty of habitability, price control, and fair access to credit are best seen as addressing a concern for the accommodation of poverty in the respective terms of employment, housing, consumption, and credit interactions. We thereby seek to reclaim a prominent role for private law in the obligation of the liberal legal order to eradicate poverty.