Are There Private Law Duties to Accommodate the Poor? A Comment on Relational Justice

‍It is a pleasure to comment on Hanoch Dagan’s exciting and original new book. In Relational Justice,[1] Dagan and his co-author Avihay Dorfman argue that the aim of private law is and ought to be to structure (a subset of) our interpersonal relationships to facilitate our self-determination and substantive equality. Unlike more traditionalist interpretations, they argue that the relational justice view can make sense of the existence of important positive duties within private law. The theory of relational justice postulates duties of accommodation to attend to another’s vulnerability in our private interpersonal interactions. Some duties of accommodation are already recognized by private law doctrine, including:

·      special duties of care toward the disabled in the law of negligence;

·      some duties of easy rescue (e.g., a psychologist’s duty to warn the intended victim when a patient tells him about a plan to murder);

·      remedies that adjust the response to a rights-violation to ensure the wrongdoer and victim can continue to relate on terms of substantive freedom and equality;

·      duties to ensure that imbalances of power and vulnerability do not unduly skew the terms of contracts; and

·      duties to return mistaken payments.

The relational justice view argues that these aspects of doctrine exist because the fundamental purpose of private law is to shape and support people’s ability to relate to one another as free and equal.

Dagan and Dorfman claim that the basic rights that make up the domain of private law are grounded on two fundamental commitments: to self-determination and substantive equality. Self-determination is a person’s ability to make meaningful choices about the direction of their life (45). This requires more than just independence and non-interference, but also the presence of an adequate range of options to choose among, and the ability to pursue important “ground projects” (49). Ground projects are personal aims, goals, and relationships central to one’s narrative identity and conception of self. Substantive equality involves two parties’ ability to relate to one another, over time, in a respectful and reciprocal manner as persons of equal standing (50).

The authors argue that in some cases, private law should interfere with the freedom of one party—especially when that freedom’s significance to that party’s self-determination is minimal (48)—in order to safeguard the self-determination or substantive equality of another party. Such duties of interpersonal accommodation require attending carefully to the claimant’s distinctive features and predicament, by requiring the duty-bearer to accommodate the fundamental rights or ground projects of the claimant, or to compensate for certain imbalances of power in their relationship. This is different from more traditionalist theories of private law that conceive of the parties to a private law relationship as formally free, abstractly interchangeable individuals, whose specific features and vulnerabilities do not matter to the terms of their private law interactions.

Dagan and Dorfman’s approach is one of constructive interpretation: While relational justice is to a certain degree already instantiated in existing private law doctrine, not all aspects of the law fully live up to what relational justice requires. So the book also recommends certain reforms that would bring private law more fully into line with relational justice’s prescriptions.

Dagan and Dorfman’s reformist prescriptions enabled me to more clearly appreciate what is distinctive and interesting about their view, so I would like to reconstruct and explore their account through the lens of what they say about poverty, both domestically and across borders. I will explore three questions:

(1) Is it attractive to place duties of accommodation on private individuals? Or should we instead prefer that the state address the vulnerabilities of impoverished persons?

(2) How exactly do we specify private law duties of accommodation? How far do these duties of accommodation go? Do the abstract values of self-determination and substantive equality give us enough resources to know what concrete accommodative duties ought to structure private law?

(3) Are the accommodative duties of relational justice moral duties that are binding independently of legal enforcement? Or are they duties that ideally ought to be inscribed into law, but that are not binding in scenarios where they are not yet legally enforced?

1.     How Should Private Law Distribute the Burden of Addressing Poverty?

Dagan and Dorfman argue that “relational justice requires private law to include rules that accommodate the poor” (201), since poverty affects the poor’s ability to interact with others in legally constructed relationships like those between employer and employee, landlord and tenant, and so on (202). Thus, they argue that “employers, landlords, retailers, lenders, and others are duty-bound to address, in some measure, the poverty of their employees, tenants, buyers, and borrowers” (202).

According to the authors, while the state has a responsibility to address poverty by implementing distributive justice, private individuals also have independent responsibilities to combat poverty: “[O]ur responsibility to accommodate the poor cannot be exhausted by leaving it to the government, entire industries, or communities to tackle poverty” (203). Private duties to address poverty are not merely duties to assist the state in implementing distributive justice. Rather, these are independent duties that fall on people as participants in private legal relationships: “[R]elational justice theory shows that poverty can count as a defect not only in the overall distribution of resources in society but also in the way private persons relate to one another in their day-to-day social and economic affairs” (203).

Let me explore the relational justice view by introducing a case from Iris Marion Young,[2] the case of “Sandy.” Sandy, a salesclerk and mother of young children, loses her apartment when a developer buys her building to convert it into condominiums. She cannot find another affordable apartment near her work, so she settles on a cheaper place on the other side of the city, using her savings to buy a used car to commute to her job. When her new landlord asks for a security deposit, she is unable to come up with the money, having already exhausted her savings. Sandy and her children thus fall into homelessness.[3]

As Young states, “[m]ost people react to a situation like Sandy’s with the intuition that something is wrong. But what is the wrong, and who is responsible for it?”[4]. Young herself argues that “Sandy’s story illustrates a specific kind of moral wrong, structural injustice, which is distinct from wrongs traceable to specific individual actions or policies.”[5] Young thinks that Sandy’s story does not involve any private interpersonal wrongs: All the individuals with whom Sandy deals are decent and respectful toward her, and they are just doing their jobs.[6]

What is distinctive about Dagan and Dorfman’s view is that they do think Sandy’s story involves private, interpersonal wrongs. They argue that private individuals with whom Sandy interacts, like the developer, her employer, and her prospective landlord, have some responsibilities to Sandy to alleviate her vulnerability, and to ensure that she can participate on free and equal terms in society. The responsibilities of these private parties are not mere “fallback duties,” derived from the failures of the state to ensure distributive justice. Rather, these responsibilities are freestanding duties “integral to what it means for parties in employment, housing, consumer credit, and other relationships to relate to one another as free and equal persons” (202–03). The positive accommodative duties of private law spring from our duty to relate interpersonally to others on free and equal terms.

The claim that parties to private legal transactions have (or should have) interpersonal duties to redress the vulnerabilities associated with poverty is highly intriguing and original. Should we accept it? I’m not sure. Much depends on what the specific positive duties of accommodation are, and whether the duties can be made feasible and practicable for private parties. Let me explore some challenges associated with this project.

Most theorists would view Sandy’s vulnerable predicament as an injustice that the state—not private individuals—is responsible for remedying. On this view, it is the background responsibility of the state to ensure that there is an adequate supply of low-cost or subsidized housing for the impoverished, and to provide accessible public transportation options so low-income citizens can participate in employment, market, and civic activities.

Many theorists endorse a “division of labor” between the state and private persons, according to which principles of justice apply to systems of public law, not to private individuals’ decisions and transactions. Rawls,[7] for example, suggests that distributive justice applies mainly to the design of institutional rules governing the basic structure of society. For Rawls, “principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances. These two kinds of principles apply to different subjects and must be discussed separately.”[8]

A similar view is shared by “Toronto School” theorists of private law, like Arthur Ripstein.[9] Ripstein argues that the state has duties to respond to poverty and to prevent relations of dependence that jeopardize citizens’ ability to relate to one another as free and equal.[10] But private individuals, according to Ripstein, do not wrong one another by failing to help needy or impoverished counterparties in their transactions. For Toronto School thinkers, “the interpersonal respect we owe one another as free and equal persons means respecting each other’s abstract personalities” (27), in a way that does not consider an individual’s vulnerabilities or identity-conferring characteristics.

On a standard view, widely held in political philosophy, and shared by Rawls and Ripstein, it is the state’s job to ensure that the rules that define property and contract are just, that the overall distribution of income and wealth is fair, and that public goods like health care, education, and public transportation are provided, so that individuals like Sandy do not fall into poverty. What is distinctive of Dagan and Dorfman’s view is that these responsibilities are not only the state’s job. Individuals and associations involved in private legal relationships with one another also have some responsibilities to address poverty.

Which side of this debate should we prefer—the division of labor view or the relational justice view? The standard argument, enumerated by Rawls, for a division of labor between the state and individuals holds that social problems like poverty and unemployment are extremely difficult for individuals to redress acting on their own. Part of the reason for this is that each individual agent cannot anticipate the remote effects of his or her economic decisions and transactions. These decisions may combine with the decisions of other private persons to create unexpected and emergent social effects. It would be very difficult to require individuals to be constantly thinking about how well-off the other people with whom they interact or transact are, and to adjust their behavior to remedy structurally caused deprivations.

For this reason, division of labor theorists believe it is preferable to apply principles of justice to background social institutions—like rules of property, taxation, regulation, social provision, and so on—to take the business of securing justice off people’s plates in their everyday lives. Once background institutional rules are properly designed—say, in the form of restrictions on inheritance, a tax-and-transfer system, appropriate definitions of property and contract rights, a system for proving public goods and education, and so on—the state will take care of preserving background justice, making sure that the overall results of individual decisions and economic transactions do not erode fair background conditions in society.

A natural worry about Dagan and Dorfman’s relational justice view arises: Are there feasible and practicable rules to impose on private parties, transaction-by-transaction, that will remedy poverty? There is a concern that such duties of accommodation might be (a) epistemically demanding, (b) extremely costly, and (c) unfairly distributed. On a standard, widely-held view, when I rent my apartment to a prospective tenant, I need not inquire into whether she needs this apartment to care for a sick family member, or because she just likes the neighborhood. I simply advertise the apartment and charge market rate. This ease of epistemic burden makes it easier for people to transact. A relational justice approach, on the other hand, would require people to undertake an inquiry into their counterparty’s characteristics and vulnerabilities, tailoring the duties involved in their transaction to the counterparty’s specific situation, which makes transactions more costly and difficult.

Accommodation duties could also turn out to be unfairly distributed. Should Sandy’s prospective landlord rent her the apartment despite the fact that Sandy cannot pay the security deposit? If so, Sandy’s landlord is assuming a substantial risk of uncompensated damage to her property. Moreover, if private law requires landlords to waive security deposits for those who cannot pay, then these risks of damage may compound on some landlords and not others. Some landlords have a lot of tenants who can easily afford security deposits, while other landlords have mostly tenants who find it difficult to pay. It’s not hard to foresee that landlords may prefer not to rent property in certain neighborhoods altogether, rather than accepting a substantial financial risk that might disadvantage them relative to their competitors. An advantage of the “division of labor” approach, we might think, is that it relieves private individuals and associations of these epistemic and material burdens, placing them instead on the state, and it also ensures that these burdens do not fall disproportionately on some private transactors rather than others.

Of course, while ideally the state should take care of serving background justice, often states do not do an adequate job of this, as in the Sandy case, or in the United States and many other countries today. In that scenario, I think Rawls, Ripstein, and other theorists of the division of labor could accept that private individuals have a “fallback” responsibility to step in and make up for the state’s failures as best they can. But on a division of labor view, such fallback duties are importantly suboptimal, even though they might sometimes be justified in a non-ideal scenario. Dagan and Dorfman’s approach is different: For them, the accommodative duties of private law are not duties of the “civic person . . . to take responsibility for the justness of the polity she belongs to” (31); they are duties of interpersonal private justice that are not grounded in citizenship or membership in a political community. Even in a perfectly just state, it seems, there would still be accommodative duties of interpersonal relational justice.

To sum up, then, there is a worry that accommodative duties to redress poverty will turn out to be epistemically demanding, extremely costly, and unfairly distributed. This might lead us to prefer a division of labor approach. While I think this worry is a serious one, I am not sure it is fatal to Dagan and Dorfman’s relational justice view. How damaging it is depends on whether they can define accommodative duties in a way that minimizes these epistemic and material burdens. Can the authors come up with feasible and practicable rules to impose on private parties that could remedy poverty transaction-by-transaction? What is their method for deriving specific accommodative duties? Do the abstract values of self-determination and substantive equality give us enough resources to concretely specify the duties of accommodation that ought to structure private law? I now turn to these questions.

2.     How Do We Specify Duties of Accommodation?

Consider again Sandy’s situation. How exactly do we specify the private duties of accommodation that should obtain in her scenario? There are many possible ways to remedy or redress Sandy’s vulnerability. Perhaps developers should be prohibited from redeveloping property if that would displace vulnerable tenants. Perhaps developers should be allowed to redevelop property, but only on condition of providing alternative affordable housing. Perhaps prospective landlords should be prohibited from requiring security deposits altogether, or required to waive them for those who cannot pay. Perhaps landlords should allow some low-income or unemployed tenants to occupy their property rent-free, temporarily or even permanently. Which of these or other duties should we believe obtain in Sandy’s situation? How do we decide?

Dagan and Dorfman offer us some fairly abstract guidance on this issue. Relational justice, they argue, often requires us to take account of our counterparty’s personal circumstances or choices. A duty-bearer’s marginal loss of freedom can be justified if it serves to protect another’s essential interests in self-determination. Accommodation is especially likely to be required when “features that make us who we are” are at stake—features like our bodily integrity and good name; features of our social identity like our race, gender, or disability status; or ground projects that are closely tied to our identity like our religious, ethical, professional, and familial choices (48–49). There are also positive duties to mitigate imbalances of power. Where a relationship features significant asymmetries of power—like in Sandy’s case—the terms should not reflect bargaining between the parties, but should be equal enough so that the self-determining agency of both parties is reflected in authoring them (52).

At the same time, positive duties of accommodation cannot go so far as to deny the self-determination and substantive equality of the duty-bearer (54). This means the duty cannot be overly onerous. Accommodative duties can be costly, but not prohibitively so (78). Such duties cannot amount to “an all-encompassing requirement to accommodate every single person in every area of their practical affairs. The duty prospectively establishes fair terms of interaction in and around one sphere of action and applies to a particular context or event and with respect to one person (or class of persons) at a time” (54).

Positive duties must also meet certain institutional conditions. They should be capable of being inscribed into law, and guiding addresses’ behavior (58), and “legal prescriptions [should] be relatively clear, minimizing recourse to individualized knowledge and radically ad hoc judgments” (58). We must be able to clearly identify who owes duties of accommodation (91).

Dagan and Dorfman argue that these institutional considerations are especially challenging in the case of poverty, given that “[a]scertaining a person’s economic situation and then acting on it may be epistemically demanding, possibly overly intrusive, and at times even demeaning” (207). This means “implementing the demands of relational justice in private law is anything but straightforward” and “the most challenging part of the relational-justice case for accommodating the poor concerns the legality, rather than the justice, of private responsibility for poverty” (207). Still, they argue that some private duties to accommodate poverty—both direct duties, involving individualized assessment of need, and indirect duties, involving certain proxies for need—can be justifiably imposed.

Can this guidance help identify which specific duties of accommodation might obtain in Sandy’s situation? Are there duties to directly accommodate Sandy? It does not seem that the imposition of a duty of direct accommodation would threaten the self-determination and substantive equality of Sandy’s landlord. Her landlord’s preference for charging higher rents and freedom from burdensome duties, seems less compelling than Sandy’s need for a secure place to raise her children, which is arguably a self-determination interest. So would relational justice require that Sandy’s landlord forgo her security deposit or even allow her to live rent-free? (Some remarks on p. 212, regarding developers’ responsibility to “make some of their units affordable to poor home-seekers,” suggest that Dagan and Dorfman might be open to this idea.)

If Sandy’s landlord does not have such a duty, why not? Dagan and Dorfman might object to such duties on grounds that peering into Sandy’s situation is epistemically demanding, intrusive, or demeaning. But there are ways to avoid intrusive inquiry, such as by requiring the landlord to waive a security deposit or to forgo charging rent only if Sandy or others in her situation ask for an accommodation.

Dagan and Dorfman also suggest that these concerns about epistemic demands and intrusiveness can often be addressed by endorsing “a structural strategy” where the “accommodation is built into the terms of the interaction, becoming an indelible aspect of what it means for the parties to respect one another’s self-determination and substantive equality” (209). “Setting an adequate floor to accommodate poverty” could be a structural feature of parties’ mandatory terms of interaction (210). So perhaps the law could require landlords to forgo security deposits altogether in certain neighborhoods, e.g., where the average annual income falls below poverty level.

Another concern is that such accommodation duties might become too costly for landlords: Dagan and Dorfman argue that the burden of accommodation duties should not become excessive. But it is unclear how high costs need to be before they void accommodative duties, and why exactly high costs should matter. It does not seem that the self-determination of Sandy’s landlord would be undermined by a proposed duty to waive security deposits, or even to allow Sandy to live rent-free. The landlord, it is assumed, has a commercial interest in the apartment, not an interest in using the space for an identity-connected ground project. So why not impose these more costly accommodative duties? It does seem likely that these duties on Sandy’s landlord might impose crippling competitive and commercial costs. But why should competitive and commercial costs matter, on a theory that emphasizes self-determination and substantive equality?

Whether we should endorse relational justice theory depends, I think, on whether there is a principled method by which to decide which specific accommodation duties to impose. Beyond very severe cases in which accommodation duties become so burdensome as to undermine the self-determination and substantive equality of the duty-bearer, I’m not sure I understand how exactly Dagan and Dorfman decide which duties should be ruled out and which accommodations should be required. They do defend various requirements of accommodation for poverty, such as that employers should pay a minimum wage; landlords should keep their premises habitable; private universities should adjust their tuition for poor applicants; developers should provide affordable housing; lawyers should provide low-cost pro bono services. But why these specific duties, and not other, possibly more demanding ones?

3.     Duties of Accommodation—Legal or Moral?

The final question I’d like to investigate concerns the status of positive duties of accommodation in interpersonal private law interactions. Are relational justice duties moral duties that are binding on agents even where they are not inscribed into law and enforced? Or are relational justice duties rather duties that ideally ought to be inscribed into law, but which do not bind agents to comply with them in the absence of a legal enforcement scheme?

This question is interestingly raised by Dagan and Dorfman’s extension of relational justice to the transnational context in Chapter 15. In a globalized world, Western manufacturing corporations have private legal relationships with people beyond borders, including foreign contractors, agents, and sweatshop employees. Dagan and Dorfman argue that interpersonal obligations of relational justice theory apply to these interactions. Western corporations ought to ensure a floor of just relationships in these transactions. This requirement is part of the “basic prescriptions of private law,” which “do not depend on our status as members of a given political community” (228).

My question is whether individuals and corporations have binding relational justice obligations even in scenarios where no state translates these duties into its private law. One might think that as a matter of interpersonal morality, Western agents have relational obligations to those who are vulnerable to them in a private interaction. Surely it is a grave interpersonal wrong for a multinational corporation to pay its foreign workers substandard wages and subject them to unsafe working conditions. On this view, the corporation, or its agents, have a moral duty to cease interacting on such terms.

Dagan and Dorfman often suggest such a moral view: They argue that while the prescriptions of private law may differ across legal systems in certain ways, “the basic prescriptions of private law—such as the injunction not to wrong one another, to keep the promises we make to one another, or to respect each other’s property rights—do not depend upon our status as members of a given political community” (228). Dagan and Dorfman hold that “the content of private law’s core normative foundations is not tied to national legal systems and, instead, transcends the contingency of its positive instantiations” (224). This makes it sound like core private law duties are binding simply as a matter of interpersonal morality, and regardless of positive law.

On the other hand, in the absence of any coordinated enforcement scheme, unilateral compliance with accommodative obligations could put any given agent at a severe disadvantage. Dagan and Dorfman acknowledge that “the state is the obvious locus for translating these normative commitments into legal prescriptions” (228). While relational justice provides an ideal standard by which to judge positive systems of private law, perhaps the duties associated with relational justice are not binding unless and until they are inscribed into law and enforced.

Consider a transnational corporation whose CEO unilaterally declares it will pay above-market wages to its sweatshop employees. So long as the corporation’s competitors continue to engage in exploitative practices, the CEO who institutes this policy is very likely to see the stock price of the company fall, and will probably soon be replaced by another, more rapacious CEO. The company may even go bankrupt, leaving the sweatshop workers it once employed even worse off without the wages it provided. These competitive dynamics may mean that the duties of accommodation characteristic of relational justice require implementation in the form of a coordinated legal scheme, with assurance of sufficient general compliance, before they become binding.

I am not sure whether relational justice imposes moral obligations even when the state fails to enforce its prescriptions. On the one hand, Dagan and Dorfman say that “private law’s core prescriptions—our interpersonal human rights” do not “fully depend on the state for their legitimate existence” (230). But they also remark that interpersonal human rights provide a “floor that state laws cannot transgress,” (233) suggesting that these duties may not bind individuals directly.

Conclusion

To conclude, there is a lot to like about Dagan and Dorfman’s relational justice approach to poverty, both within and beyond borders. The idea that relational justice imposes positive duties to accommodate impoverished persons’ vulnerability in private transactions is original, and in many ways attractive. But whether we should endorse a relational justice approach depends on whether it can define feasible and practicable rules of private accommodation in a way that is not ad hoc. How do we pick out the specific accommodative duties that ought to be required? Will these duties become too epistemically demanding, too costly, and too unfair to private agents? Will the duties in fact succeed at redressing a complex social problem like poverty? And are the duties morally binding on private transactors directly, or do they require legal enforcement to bind? The relational justice approach requires compelling answers to these questions.

Copyright © 2026 Anna Stilz, Kernan Robson Professor of Political Science at University, of California, Berkeley.

       [1]. RELATIONAL JUSTICE: A THEORY OF PRIVATE LAW. By Hanoch Dagan & Avihay Dorfman. Oxford University Press, 2024. Unattributed page numbers in this article refer to this book.

       [2]. Iris Marion Young, Responsibility for Justice (Oxford Univ. Press 2010).

       [3]. Id. at 44.

       [4]. Id. at 45.

       [5]. Id. at 44.

       [6]. Id. at 46.

       [7]. John Rawls, A Theory of Justice: Revised Edition (Harv. Univ. Press 1999).

       [8]. Id. at 47.

       [9]. Arthur Ripstein, Force and Freedom (Harv. Univ. Press 2010).

     [10]. Id. at ch. 9.