Reframing Housing: Incorporating Public Law Principles into Private Law

A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of Spain, where several rich cultural and legal resources have inspired a new sensibility with regard to residential mortgage loan contracts, rental agreements, and the overall duties and obligations of governments to address the citizenry’s housing needs. Although this reorientation reflects decisions from the European Court of Justice and from the United Nations Committee on Economic, Social, and Cultural Rights, it is equally driven by an organic transformation in our understanding of housing markets and redistributive justice.

Rather than receive the new paradigm with myopic trepidation, observers should herald it as the beginning of a much-needed dialogue between the public, human rights discourse, private business interests, and economic markets.