Distributive Injustice and Private Law
Fordham University School of Law
August 6, 2010
Hastings Law Journal, Vol. 60, p. 105, 2008
U of Penn Law School, Public Law Research Paper No. 07-36
Imperfect rights are not held against any single person, and when violated, they do not ground a claim for any particular quantum of redress. The right to an adequate income may be an imperfect right. Because imperfect rights have been asserted only as claims against the state, and because they do not lend themselves to constitutional adjudication, they have had little traction. In my paper, I will emphasize that any claim on the state is derivative from the right held as against other citizens. Even those who believe that individuals have perfect social rights against the state should concede an imperfect right against other individuals in the ubiquitous case of (at best) partial compliance by the state.
Because the right to basic income ultimately is held against other individuals, it is effective outside the boundaries of public law. I will argue that, though the United States does not recognize a constitutional right to adequate income, the common law does implicitly recognize certain imperfect social rights. Imperfect rights shape rights and responsibilities with respect to individuals against whom an imperfect right-holder does not otherwise bear a direct claim under private law.
Theorists of private law have been reluctant to recognize any role for distributive justice in private law because social rights are perceived as collective in nature, and therefore, without import for the scope of obligation between individuals. I show that imperfect social rights may be taken into account in a way that respects the foundational status of individual responsibility in private law.
Number of Pages in PDF File: 45
Keywords: distributive justice, private law, private law theory, responsibility, social rights, imperfect rights, basic income
Date posted: September 11, 2007 ; Last revised: August 8, 2010