Kit Barker, ‘Private and Public: The Mixed Meaning of Vindication in Torts and Private Law’

This piece examines the meaning of vindication in private law and the relationship between this concept and the remedies which private law provides where rights are infringed. In contrast to some other approaches, it suggests that there is no single, 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; 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 in this paper takes place in the shadow of the recent 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 (rather than incidental effects) of private law.

Kit Barker, ‘Private and Public: The Mixed Meaning of Vindication in Torts and Private Law’. Forthcoming in S Pitel, J Neyers and Erika Chamberlain, Tort Law: Challenging Orthodoxy (Hart, Oxford, 2013).

First posted 2013-05-10 06:45:41

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