The second seminar in our series was held at Warwick University on March 22nd. The seminar focused on strategic deployments of private law and civil litigation in vindicating human rights. Seminar discussions addressed and developed a number of important questions drawn, in particular, from our engagement with examples from current practice in human rights law. The core difficulty with squaring private litigation and human rights seems to be that ‘we find ourselves standing on another’s ground’, reliant on historical accretions of contingent precedent that, by and large, have nothing immediately to do with the sorts of claims discussion in this seminar – claims about sexual abuse, torture, state killing, corporate killing and so on. To what extent can we expect civil litigation to support credible struggle with the awesome definitional and political power of law?
Private Law Justice and Human Rights Claims: Hope and Hopelessness.
Several participants spoke to projects which situate civil litigation within broader movements agitating for political change or for changes in the symbolic representation of particular claims. We might describe these claims in the language of victimhood and reparation, but we might also use the language of citizenship, responsibility and accountability. Traditionally, private lawyers seek monetary compensation for clients who have suffered harm: this tactic asserts a commensurability or equivalence between a financial remedy and a particular material wrong. But, as several speakers reminded us, some litigants are seeking something other than financial remedies. They may be seeking some broader reparation. They may be seeking an apology. They may want to compel the production, or participate in the production of a national narrative which sets out how they came to be harmed and begins a process of catharsis, reconciliation or transformation. They may want to use litigation to trigger later processes of public deliberation or contestation. In other words, they may be asking private litigation to play some of the roles which we associate with public inquiries and commissions, or with more traditional constitutional or rights-based litigation.
Some papers spoke of private law as a supplement to failing public law systems. For instance Nikki Godden‘s paper addresses the use of negligence in highlighting and addressing police failure to protect victims of sexual assault; an issue which has eluded adequate reform from within the criminal justice system. There is a suggestion that the threat of financial loss via damages may spur powerful bodies to alter their practices; reinscribing notions of responsibility or duty which are not adequately inscribed in public institutions. Maeve O’Rourke also spoke to Justice for Magdalenes’ campaign for apology and reparations for women incarcerated in the Magdalene Laundries; obstacles to a viable civil claim have perhaps pushed that movement onto an entirely different political terrain than it might have occupied if the demand for a government admission of responsibility could have been effectively tied to liability. Damages have an ambivalent relationship to these political aspirations for litigation. As the news comes that the British government is currently negotiating a financial settlement with the litigants in Mutua v. Foreign and Commonwealth Office Andrew Williams‘ paper on civil litigation arising from the Iraq War makes very interesting listening. Often, powerful corporate or government wrong-doers appear to ‘pay litigants off’ , pacifying them through settlement, neutering the opportunities for ‘truth-telling’ that significant, highly publicized litigation might attract. Some litigants, of course, have tried to short-circuit that process by creatively reappropriating financial remedies. Consider Abdel Hakim Belhaj’s offer to settle his rendition claim against the UK Government for £3 in exchange for an apology and an admission of liability. Catherine Gilfedder spoke about another of Reprieve’s campaigns against indefinite detention and rendition. She discussed how a client of Reprieve used part of the damages which he obtained through civil litigation to provide for other victims of torture – effectively building political solidarity from an action grounded in corrective justice.
Participants also discussed civil litigation’s construction of harm and its relationship to ongoing political struggle. On the one hand, we may have a sense that civil litigation may allow litigants to construct a political narrative around individual harm which can cut through a large and complex crisis and provide space for contestation of take-for-granted frames. As a strategy, litigation of this sort may be more effective than a large scale public inquiry which may produce a sprawling de-individualised and dispersed historical record of harm. Consider the South African apartheid litigation which may provide opportunities (outside of class actions) to address forms of corporate wrong-doing which have not been addressed as part of truth and reconciliation processes. On the other hand, as Carolina Olarte and Nick Shapiro emphasised in their papers, private law’s emphasis on individuals, and on discrete ‘events’ of wrong-doing tends to silence ongoing experiences of systemic harm.
Hacking Private Law: Subjects and Consequences.
Another series of conversations revolved around the strategic question of the instrumentalisation of private law techniques for political or critical ends. The apparently depoliticized space of private law may be ’empty’ and open to filling in the sense of reinterpretation or repoliticization; to ‘hacking’. This can be purely pragmatic. For instance, Catherine Gilfedder introduced discussion of creative uses of commercial remedies in human rights cases; consider, for instance, the use of the Norwich Pharmacal jurisdiction – originally a creature of patent law – in the Binyam Mohomed litigation. (The order has since been neutered by the Justice and Security Act: see Fiona de Londras here). Hacking may also have a second aesthetic or representational dimension: this possibility was especially apparent in Tsachi Keren-Paz’s discussion of the possibilities of using the tort of conversion to secure remedies for victims of trafficking. What do we do when we transfer private law forms from their marketised ‘home’ to contexts which are much more explicitly embedded in matters of violence, gendered power and struggle? On one hand, private law forms – especially because of their bluntly economic associations – allow us to discuss human rights in a brutally economic register, which exposes their imbrication in market power. Sometimes, by collapsing the distinction between categories of injury via private law – as Karen-Paz does when he deploys conversion to obtain a property remedy on the basis that a woman has been treated ‘as property’- we can work a certain ‘poetic justice’. But what is lost in that collapse? In thinking of and describing women ‘as property’, are we producing a new subject of private law, ripe for government along particular lines and saturated with meanings which we would perhaps prefer to discard? How do we account for these subjects, and for litigants’ experiences of inhabiting those subject positions? In particular, how can we square the gains of litigation with the costs to a litigant of being burdened with the violent name of property? Is it possible to do more than reproduce and reinforce the original chattelisation? How can we interrupt that reproduction? Abdul Paliwala reminded us of the importance of situating legal strategy within communities of political resistance; joining private law to the public of resistance, as much as to the public of the sovereign. Illan Wall introduced the Lacanian idea of ‘over-identification’ to the conversation; in ‘hacking’ private law can we, to paraphrase Zizek, take private law more seriously than it takes itself; stretching its boundaries in ways which expose its fundamental tensions, contradictions and paradoxes? The point is to give private law credibility insofar as is necessary, without being corrupted by it; to profane private law.
The state, of course, may also ‘hack’ or reappropriate private law techniques, with uncomfortable consequences. Carolina Olarte’s paper discussed how, in Colombia, ‘good faith’ – a concept associated with the protection of vulnerable market actors against over-reaching and opportunism – is used by the state in a synthesis of public and private law which deprives displaced landowners of their property rights to meet the needs of government and private corporations. This ‘hack’ produces a new subject of private law – a ‘dispossessed owner’ who is owner in name, but has none of the control over her land which we associate with property, and can only dispose of it as the regime would wish.
We warmly invite PhD students, academics (in all disciplines), teachers of private law and practitioners and activists working in relevant areas to get in touch with us at m.enright[at]kent.ac.uk or i.r.wall[at]warwick.ac.uk and/or to express interest in participating in the later seminars in the series (details at www.publicprivatelaw.co.uk).
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Details of the third seminar in the series are here.