Private Law Theory

ABSTRACT
This paper argues that defamation law in England and Wales does not sufficiently take into account egalitarian considerations when determining the scope of liability. The analysis is two-dimensional: it assesses egalitarianism within the bipolar relationship between the parties, drawing on Looney’s exchange of agency model, and at the structural level, employing Keren-Paz’s egalitarian distributive justice. A feminist critique bridges both dimensions, revealing how the seizure of narrative agency at the bilateral level is, structurally, part of a broader pattern of harm disproportionately borne by women subjected to sexual objectification. The argument proceeds in three parts. First, strict liability is examined through Looney’s model, demonstrating that any judgment addressing only the claimant’s deficit while ignoring the defendant’s surplus leaves the bipolar relationship insufficiently egalitarian. Second, the serious harm requirement under section 1 of the Defamation Act 2013 is critiqued for demanding that an inherently intangible harm materialise into measurable evidence, systematically disadvantaging dignity-based claimants. Third, universalism is assessed, arguing that CJ’s formal equality entrenches substantive inequality, and that legislative rather than judicial correction, targeting vulnerabilities rather than groups, is the appropriate remedy.

Oliwier Rokicki-Tyszka, Law without a Mirror: Defamation Law and the Defendant’s Invisible Surplus, London School of Economics Law Review volume 11, issu 3 (2026).