n Stellenbosch Law Review = Stellenbosch Regstydskrif - The legal construction of poverty : gender, "work" and the "social contract"




This paper attempts to provide a broad thematic framework for discussing critical and sometimes controversial issues in the field of law and poverty. Using gender as the lens through which to view a late 20th century version of social contract theory, the paper discusses how blindness toward gender consequences of social policy and legal rules: (i) obscures the roots of poverty that are in part constructed by common law background legal rules of property, contract, tort, and family law; (ii) induces decision makers to ignore the conditions of and sex segregation in low-wage labour markets and the lack of upward mobility for poor women, thus appearing to legitimate the central, but flawed, assumption of neo-liberal poverty reduction policy (namely, that formal sector waged work can and will provide adequate family support); (iii) renders invisible non-formal sector "subsistence work" and "caregiving work," as defined herein, and in particular ignores the contribution of this work to economic productivity and efficiency as conventionally understood; and (iv) fails to appreciate that the legal definitions characterising many poor women workers as "non-workers" reinforce an artificial dichotomy between waged work and social assistance receipt (a distinction often framed as independence versus dependence) and eliminates by magical thinking the alienation and subordination experienced by low-wage workers, particularly women, from poverty discourse.

I articulate three central themes or assumptions that can usefully inform our discussions going forward. First, legal rules and discourses play a significant role in constructing society's understanding of poverty. Second, the rules historically in place in our societies work to keep people in poverty rather than to ameliorate their situation. And, third, contemporary neo-liberal social contract discourse - based in part on these embedded legal understandings - is an ideological initiative that legitimises and sustains gender subordination (among other forms of illegitimate hierarchy and domination).


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