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. Our account 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.