The legal construction of poverty: examining historic tensions between property rights and subsistence rights

Abstract

This chapter argues that from the perspective of history we can see that, in certain contexts, law evolved to protect private property rights and this primary function is in tension with other legal obligations to protect the rights of the poor. Those in a condition of absolute poverty, and often those on the margins, need to consume things they do not own, and this consumption undermines the inalienable nature of property upheld by law. Here I posit that law’s long-standing commitment to protect private property is structurally linked to its inability to act on behalf of the poor. Private property is the institution that legitimates this unequal access to resources. The particular conception of private property that underpins today’s inequality regime is not a transhistorical universal one but is rather historically contingent. It is the product of a material, intellectual, and legal history. The institution of private property developed as a legal right in pre-modern Europe. When the international community signed the Universal Declaration of Human Rights (UDHR) in 1948, it recognised people’s right to property. In the UDHR, the right to property is enshrined in Article 17, eight articles prior to the right to access basic necessities. From the historical perspective, we see that legal protection of the right to private property is in conflict with subsistence rights.