Although constitutional social rights continue to attract much scholarly attention, their role in shaping private law is often overlooked. This neglect has led some scholars to underestimate social rights’ transformative potential. This article considers social rights’ influence over contract and property law in India, Colombia, and South Africa—three leading jurisdictions of the Global South. It argues that social rights can promote redistributive outcomes and inspire important shifts in private law’s values and modes of reasoning. However, it cautions that the depth of this transformation will depend on how judges choose to cross the public– private divide. One tradition rejects any role for social rights in the private sphere. Another approach is comfortable imposing positive social duties, but only on firms that resemble the state. One notch further along, there are approaches that prefer maximum flexibility and pragmatism, but which fail to invest much effort in elaborating legal doctrine or a theory of relationships. The final method integrates constitutional aspirations into private law. Integration transforms private law’s modes of reasoning and offers the clearest language for confronting private domination and inequality. However, it can also threaten wide swaths of private law and risk a legitimacy crisis for the judiciary. This article charts each of these paths of influence. It considers the legal environments that foster each path, as well as their normative dynamics, internal limits, and shortcomings. This effort is meant to mirror developments in the literature on comparative public law, where scholars have mapped diverging strategies for enforcing social rights in litigation against the state. More fundamentally, this article aims to recentre private law in discussions of how social rights participate in transformative constitutionalism.
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
"Social Rights and Transformative Private Law."
Osgoode Hall Law Journal