The Law of Fighting Poverty

Prof. Doctor Maria Manuela Goulão d'Oliveira

Martins de Sousa D'Alte
Mariana Figueiredo Calado – 140119142

Católica Lisbon School of Law

2022-2023
 The Law of Fighting Poverty

Firstly, before starting this dissertation, one must say that poverty is an insensible and
invisible cage. Poverty is therefore a condition characterized by the lack of access to basic
human needs such as food, shelter, clothing, education, and healthcare. It is often associated
with low income, but poverty is not just a lack of money. Poverty is a complex and
multidimensional issue.

The modern welfare system, as we know it today, began to take shape in the late 19th
and early 20th centuries in Europe and North America. One of the earliest examples of a modern
welfare system was the British National Insurance Act of 1911, which established a system of
social insurance to provide pensions, unemployment benefits, and health care to workers. This
was followed by the New Deal programs in the United States during the Great Depression,
which included a range of social welfare programs such as Social Security and unemployment
insurance. Today, the welfare system is a complex network of social programs and services
designed to provide support and assistance to those in need.

A private charity is a type of organization that is established and operated for charitable
purposes. Private charities can take many different forms, such as advocacy groups, educational
organizations, health care providers, religious organizations, and social service providers. They
rely on the generosity of donors to fund their operations and strive to achieve their charitable
objectives in an effective and efficient manner.

Although, welfare is an extremally import system, it’s not without its faults. Though
governments, tend to invest a lot of money on the it, for example in the United States of
America, about 70% of that money gets spend on bureaucracy, charged with the task of helping
the underprivileged, therefore only 30% of that money is used on the poor. Since every
community has specific and intricated problems, some defend that private charities can be more
effective than some welfare programs. Not only because they have more contact in the direct
field, but also because they can be more efficient, since only 30% of the money received is used
for their infrastructure.

There is a trend towards liberalizing the welfare system in some countries. The basic idea
behind this trend is to shift responsibility for social welfare from the government to individuals
and private organizations. This is often referred to as a "market-oriented" or "neoliberal"
approach to social welfare. The rationale behind this approach is that it will increase efficiency
and reduce costs by promoting competition and innovation in the provision of social services.
Proponents of this approach argue that it will lead to better outcomes for those in need, as well
as greater accountability and choice for individuals.

In terms of legal provisions one can explore many different systems regarding private
charities, therefore I will base my investigation on the United States of America, European
Union, and Portugal. In the USA, there is no explicit constitutional provision that protects the
right to exercise private charity. However, the First Amendment of the United States
Constitution protects freedom of speech, assembly, and religion, which are often associated
with charitable activities. Additionally, the Constitution does grant certain powers to Congress
to levy taxes and spend money for the general welfare, which can include programs that
promote charitable activities. Furthermore, the Supreme Court has recognized the importance
of private charitable activities in promoting the general welfare and has interpreted the First

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Amendment to protect the freedom to engage in such activities. For example, in the 1984 case
of Cornelius v NAACP Legal Defense and Educational Fund, the Court held that the
government may not discriminate against private charitable organizations based on their
viewpoints or associations.

While the EU Charter of Fundamental Rights recognizes the freedom of association and the
right to engage in philanthropic activities, there is no explicit constitutional right to exercise
private charity. However, EU member states have their own laws that protect the right to donate,
volunteer, and engage in philanthropic activities, which are often supported by tax incentives
and exemptions.

The Portuguese Constitution contains provisions that aim to protect the poor and promote social
justice. Article 9 of the Portuguese Constitution states that the State must promote social
progress and justice, and Article 63 guarantees the right to social security, including access to
health care, social welfare, and other forms of assistance to those in need. Article 64 guarantees
the right to work and fair working conditions, including a minimum wage that is sufficient to
provide a decent standard of living.

In addition, the Constitution establishes the principle of progressive taxation, which means that
those who earn more are taxed at a higher rate, with the revenue used to fund social programs
and services for those in need. Overall, the Portuguese Constitution recognizes the importance
of protecting the poor and promoting social justice and provides a framework for the
government to do so through a range of policies and programs. However, it is important to note
that private charities are still subject to certain regulations and restrictions, such as those related
to transparency, accountability, and compliance with applicable laws and regulations.
Charitable organizations must register with the Portuguese government and comply with certain
reporting requirements, for example.

Criminalization of poverty refers to the practice of punishing individuals who are poor
or homeless for engaging in activities such as begging, loitering, or sleeping in public places.
This approach to poverty is often seen as a form of social control, rather than a solution to
address the root causes of poverty. This can lead to a cycle of poverty, as individuals who are
punished for engaging in these activities can accumulate fines and criminal records, which can
make it more difficult for them to find employment or housing in the future, making poverty
therefore, intergenerational. This term is used to describe the cycle of poverty that is passed
down from one generation to the next. It occurs when families experience poverty and social
exclusion over a prolonged period, and the children in those families grow up to experience
poverty themselves. This cycle of poverty can be difficult to break, as individuals who grow up
in poverty may not have access to the same opportunities as those who grow up in more affluent
families. The problem of intergenerational poverty is a significant social issue, as it can
perpetuate inequality and social exclusion.

Criminalization of begging can be seen as a violation of antidiscrimination policies, as

it can disproportionately affect marginalized and vulnerable groups. Begging is often associated
with poverty, homelessness, and unemployment, and criminalizing it can have adverse impacts
on individuals who are already facing social and economic challenges. Antidiscrimination
policies aim to protect individuals from discrimination based on various factors such as race,

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 The Law of Fighting Poverty

gender, age, disability, and socio-economic status. Criminalization of begging can lead to the
disproportionate targeting and prosecution of individuals based on their socio-economic status,
which can perpetuate discrimination and social exclusion.

Poverty can be one factor that contributes to the emergence of mafia behavior. In
impoverished communities, individuals may struggle to meet their basic needs such as food,
shelter, and healthcare. This can lead to desperation and a sense of hopelessness that can make
people vulnerable to joining criminal organizations like the mafia as a means of survival. In
some cases, mafia organizations can offer individuals a sense of belonging, protection, and a
way to earn money through illegal activities like gambling, drugs, and extortion. For some
people living in poverty, these illegal activities may seem like the only viable way to make a
living.

There have been several court decisions that have upheld laws criminalizing poverty,
some of these court decisions have been controversial, as they have been criticized for
perpetuating discrimination against vulnerable and marginalized groups. It is important to
recognize that the decision of the Swiss courts regarding the ban and criminalization of begging
in canton Vaud is based on their interpretation of the law and the specific circumstances of the
case. Countries like Italy, Poland, Ireland, Hungary, Sweden, and Belgium have also considered
begging as behavior contrary to public order and tranquility. Some nations, like Austria, even
typify the types of begging that can occur and the adequate sanctions for each one, as seen in
decision of the case G 155/10‐9 in 2012.

However, it is also important to consider the potential impact of such a ban on the human
rights of those who are affected by it. Banning and criminalizing begging can disproportionately
affect individuals who are living in poverty and who may have limited access to resources and
support. Furthermore, the assertion that such a ban prevents the existence of mafia networks
may be debatable. While criminal organizations may exploit vulnerable individuals who are
engaged in begging, it is important to address the root causes of poverty and inequality to
effectively combat organized crime. Ultimately, the decision of the courts reflects a balance
between the need to preserve public order and security and the protection of human rights. It is
important to continue to engage in dialogue and debate on issues related to poverty and
inequality, to ensure that the most vulnerable members of society are protected and supported.

In conclusion, criminalization of begging is often seen as a contradiction to

antidiscrimination policies, as it can perpetuate discrimination and social exclusion of
vulnerable groups. Instead, policies that aim to address poverty and provide support for those
in need can be a more effective and humane way to tackle the issue of begging. Critics argue
that criminalizing poverty perpetuates discrimination against vulnerable and marginalized
groups, as individuals who are poor or homeless are more likely to be targeted by law
enforcement than individuals who are not. It can also lead to human rights violations, as
individuals who are punished for engaging in these activities may not have access to legal
representation or fair trials. Instead of criminalizing poverty, advocates argue that policies
should be put in place to address the root causes of poverty and provide support for individuals
who are struggling. This could include policies such as affordable housing, access to healthcare
and education, and employment opportunities.

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 The Law of Fighting Poverty

Biography

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