Private and public: the mixed concept of vindication in torts and private law

Barker, Kit (2013). Private and public: the mixed concept of vindication in torts and private law. In Stephen G. A. Pitel, Jason W. Neyers and Erika Chamberlain (Ed.), Tort law: challenging orthodoxy (pp. 59-93) Oxford, United Kingdom: Hart Publishing.

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Name Description MIMEType Size Downloads
Author Barker, Kit
Title of chapter Private and public: the mixed concept of vindication in torts and private law
Title of book Tort law: challenging orthodoxy
Place of Publication Oxford, United Kingdom
Publisher Hart Publishing
Publication Year 2013
Sub-type Research book chapter (original research)
Open Access Status
ISBN 9781849464710
Editor Stephen G. A. Pitel
Jason W. Neyers
Erika Chamberlain
Chapter number 3
Start page 59
End page 93
Total pages 35
Total chapters 16
Collection year 2014
Language eng
Subjects B1
180126 Tort Law
Formatted Abstract/Summary
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.
Q-Index Code B1
Q-Index Status Confirmed Code
Institutional Status UQ
Additional Notes "The chapters in this book were originally presented at Obligations VI: The Sixth Biennial Conference on the Law of Obligations at Western University in London, Ontario in July 2012." Presented during the Parallel Sessions on Wednesday, July 18.

Document type: Book Chapter
Collections: Official 2014 Collection
TC Beirne School of Law Publications
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Created: Wed, 13 Nov 2013, 16:21:11 EST by Carmen Buttery on behalf of T.C. Beirne School of Law