Private Law Theory

Abstract:
This piece examines the meaning of vindication in private law and the relationship between the concept and the remedies which private law provides where rights are infringed. In contrast to some other approaches which claim a singular, distinct meaning for the idea of vindication, it suggests that there is no one, institutional conception of what it means to vindicate rights in private law. Rather, it argues that the general conception of vindication is a mixed one – both in the sense that it overarches a number of more discrete and distinct ideas expressed in the law; and in the sense that these ideas are collectively founded on a plurality of private (individualist) and public (social) justifications. Many of the concepts of vindication which private law expresses are also to be found in public law, though the nature of the rights that public law vindicates is different.

The discussion takes place in the shadow of the decision of the United Kingdom Supreme Court in Walumba Lumba v Secretary of State for Home Department [2011] UKSC 12, where several members of the Court canvassed the possibility of using damages awards purely for the purpose of ‘marking’ important rights. It concludes that although private law rightly vindicates rights in a number of important sense of the word, there is neither space nor need in the law for such a category of ‘vindicatory’ damages. It also raises doubts as to whether public expression and social norm-projection can legitimately be said to constitute purposes of private law.

Kit Barker, ‘Private and Public: The Mixed Concept of Vindication in Torts and Private Law’ in S. Pitel, J. Neyers and E. Chamberlain, Tort Law: Challenging Orthodoxy (Hart, Oxford, 2013), 59-93.

First posted 2013-10-24 18:53:31