Poverty and Private Law: Beyond Distributive Justice

46 Pages Posted: 20 Jul 2020 Last revised: 27 Oct 2022

See all articles by Hanoch Dagan

Hanoch Dagan

University of California, Berkeley - School of Law; Berkeley Law School

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: April 21, 2022

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.

Suggested Citation

Dagan, Hanoch and Dorfman, Avihay, Poverty and Private Law: Beyond Distributive Justice (April 21, 2022). Available at SSRN: https://ssrn.com/abstract=3637034 or http://dx.doi.org/10.2139/ssrn.3637034

Hanoch Dagan

University of California, Berkeley - School of Law ( email )

215 Law Building
Berkeley, CA 94720-7200
United States

Berkeley Law School ( email )

890 simon hall
215 Bancroft way
berkeley, CA 94720
United States

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel

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