Monthly Archives: September 2013

Audio from Seminar 3 is now Online

Audio recordings from our third seminar, held at the University of Kent on September 19 are now available online, courtesy of Backdoor Broadcasting.

Aina Khan – Agreements in Islamic Family Law – Perspectives from Practice

Christine Schwoebel – The Public and Private in Public International Law 

Emmanuel Voyiakis – Private Law in Public Places

Daniel Monk – Inheritance Law, Pleasures and Perils

Emmanuel Melissaris – Framework Responsibility for Remote Consequences

Mairead Enright – Beyond Strategic Agency – Towards a Political Conception of Religious Contracts

PROGRAMME FOR SEMINAR 3 – SEPTEMBER 19 – KS14, KEYNES COLLEGE, KENT LAW SCHOOL.

There are still a few places left at this seminar. You are welcome to show up on the day.

10 – 10.30 – Welcomes, Introductions, Coffee

Panel 1 – 10.45- 12.30

 Aina Khan  –  Agreements in Islamic Family Law – Perspectives from Practice

Aileen McColgan – Reflections on  Jivraj v Hashwani

Christine Schwobel – The Public and the Private in Public International Law

Discussion, Q & A

Lunch – 12.30 – 13.15

Panel 2 – 13.15 – 15.00

Emmanuel Voyiakis – Private Law in Public Places

Daniel Monk  – Inheritance Law, Pleasures and Perils

Emmanuel Melissaris – Framework Responsibility for Remote Consequences

Discussion, Q&A

Coffee – 15.00 – 15.30

Panel 3 – 15.30 – 17.00

Mairead Enright – Beyond Strategic Agency – Towards a Political Conception of Religious Contracts

Samia Bano – Title TBC

Discussion, Q&A, End of Seminar Reflections

Dinner – 18.30, Salt Canterbury – Please let us know in advance if you wish to attend.

The Political in the Contract Classroom.

When we started ‘The Public Life of Private Law’ one of the conversations we wanted to have with participants, and with others following the series, was about teaching private law from a critical perspective. In particular, we wanted to think about how those of us who fell into teaching private law through a mixture of necessity and serendipity, but who research in what seem to be very different areas, could bring something of those other interests to our teaching. I want here, following César Augusto Baldi’s contribution on de-colonizing the teaching of human rights, to make some suggestions for a de-colonized, or radical set of pedagogic techniques in contract law. Almost twenty years since the publication of Wheeler and Shaw, and nearly as long since Kastely, Post and Hom’s Contracting Law, I don’t make any claims to originality. I welcome any comments or responses.

Forgotten Voices.

Asking questions about the elimination of particular voices from a canon is an old critical tactic. We might have recourse to literature, to art or to scholarly reflection in search of accounts of what contract has meant for those other than the ‘rugged individual’ of what we call, as shorthand, ‘classical contract theory’. But the choice of judgments for study can also be strategically important here. Granted, it can be very difficult in a contract law course which is hived off from labour law, consumer law and family law to raise political questions of silencing and power. But there are always possibilities for close reading of judgments, using the creative techniques of the law in context movement. For instance, we might draw attention to these, among any number of others:

 

Grand Narratives 1: Rises and Falls.

Like the human rights syllabus, contract has its totemic stories. The most familiar; the grand narrative of ‘the rise and fall of freedom of contract’ has the undergraduate contracts syllabus in something of a stranglehold. We move from status to contract, and we are betrayed. Contract becomes terrible in the 19th century and over time, thanks to Europe and the consumer movement, grows less so. Courts shuttle between a position of deference to individual market choice and an over-weaning paternalistic one. There are any number of routes out of these binaries. One, which naturally has particular currency in feminist studies of contract, is to unpack the very notion of freedom of contract; to talk about unbearably rigid distinctions between corrective and distributive justice, procedural and substantive fairness; to think about whether the market which appears in the decided cases is the only market there can be. There are some resources for this kind of work within mainstream private law theory. But we might introduce American Critical Legal Studies, or even European critical theory (I think that there are few more astute or riveting insights into the betrayals of ‘freedom of contract’ than those provided by Nietzsche, Marx, Sartre, or even Benjamin). As Peter Goodrich has taught us, another obvious route away from the ‘rise and fall’ narrative is through alternative histories of women’s contracts or the contracts of slaves, or the unsettling experiences of those who are supposed to be the most free, which upset the smoothness of these transitions, highlighting anomalies, inconsistencies and resistances.

Grand Narratives 2: The Death and Greed of Contract.

The second grand narrative of the contract syllabus tells us that contract is less important than it was – that it is so shot through with European law, tort, human rights and other specialised areas of law as scarcely to matter anymore. At the same time, critical legal scholars will be aware of contract – even at a conceptual level – as a central governmental technique of neoliberalism. They will know that contract is used both to privatise what were once central functions of government, and to induce certain forms of desire and self-management, first in liberal (and indeed in colonial) and now in neoliberal subjects. For instance, our government’s contracting out of functions in the areas of prison management, immigrant detention and deportation are a case in point – similar practices stretch into any number of areas. Why should these ideas and these contracts be left outside the contracts classroom? Why should the mainstream syllabus not consider these public processes of tender, drafting, bargain, enforcement and termination?

Strategy, Legal Reasoning and ‘Thinking Like A Lawyer’.

I am very grateful to have inherited an Obligations course already shaped by a progressive pedagogy which shines through in John Wightman, Brian Simpson and Alan Thomson’s contract scholarship, and in Kirsty Horsey, Wade Mansell and Joanne Conaghan’s work on tort. With that teaching tradition comes a community of students who are, to some degree, open to less traditional perspectives on the courses they study. The solidarity of colleagues and students makes certain kinds of teaching possible. Outside of that sort of environment – and if the dominant textbooks in contract law are anything to go by, ‘that sort of environment’ is a small archipelago – one tends to meet calls to justify this kind of teaching. This demand is often grounded in the assumption that critical legal thinking is incompatible with any sort of legal training worthy of the name. A critical approach to contracts, I think, will try to centre students’ reflection on their own potential and ambitions as members of the professions. If the traditional contract syllabus guides them to imagine themselves as indispensable and invincible servants of global industry, a critical syllabus can intervene from a perspective of wry humility. Consider Stewart MacAulay’s relational contract theory, which suggests that contract law is less important than we think or Mitu Gulati’s more recent work on sovereign debt contracts, which presents lawyers as simultaneously baffled by and proud of the far-reaching work they do. Read them with Annelise Riles, who suggests that contract lawyering can be important but not in the ways we might suspect.

Equally, if we care about training lawyers who will go into practice, and I think we should, then we may want to equip them with the seeds of critical legal strategies and techniques in order that they can contribute to whatever precarious social changes may be worked through the law. For instance, Linda Mulcahy’s closely reasoned alternative feminist judgment in Baird v. M&S, written as part of the Feminist Judgments Project is, by the nature of that project, designed both to radically rethink the law of contract formation and to closely mimic the rhetoric and technique of traditional judicial reasoning. It is a model of Roberto Unger’s deviationist doctrine. Reading it together with the judgment it reworks is an effective exercise because it demonstrates to students that it is possible to work small ruptures in the fabric of even the oldest parts of doctrine. In a slightly different exercise, following Carl Stychin, we might read Sutton v. Mischon de Reya – a case about a solicitor’s negligence after all – and ask how contracts might be used to give legal substance to forms of life that otherwise appear to fall outside law’s remit (a question that we might otherwise have to leave to the lex mercartoria). Exercises of this kind may ‘persuade students that legal discourses and practices comprise a medium, neither infinitely plastic nor inalterably rigid, in which they can pursue moral and  political projects and articulate alternative visions of social organization and social justice’. That is also part of why we invited so many practitioners to be part of our seminars – to create an archive of emerging practical strategies in private law, and to bring them with us into the classroom.

The Public Life of Tort Law.

We are pleased to feature this post from Mathilde Groppo, who is one of our PhD associates, and a PhD student at King’s College London.

In O’Reilly v Mackman, Lord Denning famously declared: ‘[i]n modern times we have come to recognise two separate fields of law, one of private law, the other of public law.’ The public life of private law seminar series specifically encourages a reflection around the interactions between the public and the private. The past decades have staged various debates on the nature of tort law; these debates are symptomatic of a shift of tort law towards the embracing of public concerns. To some extent, tort law has acquired a ‘public life’. This blog post endeavours to explore some of the factors that have brought about this shift from a strictly private to a more public nature of tort law.

To date, no satisfactory definition of a tort has been found. At university, it is often described as ‘the law of civil wrongs not arising out of breaches of contract or trust’; this is hardly an enlightening definition. Perhaps because of the impossibility of finding such a satisfactory definition, tort law is often defined negatively, by opposing it with criminal law. Blackstone elaborated that

The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanours, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.

The confusion as to the distinctiveness of torts and crimes (and therefore, as to the private/public divide in the law of wrongs) is not new. In medieval England, no formal distinction was made between tort and criminal law. Tortious and criminal claims differed in that they offered different kinds of remedies and the goal of the claim (compensation or revenge) varied accordingly; such choice was left to the victim and determined under which set of laws the claim would be litigated.

In spite of difficulties in characterising a tort, it has historically generally been accepted that tort law is the law of private wrongs; its consequently private nature is attested by the fact that it is the claimant himself who initiates the proceedings. Further, tort law is characterised by its individuality – a particular defendant compensating a particular claimant for a particular wrong, with various elements (liability standards, causation, awards of damages) being individually assessed. How, then, did this fundamentally private area of the law come to acquire, to some extent, a ‘public life’?

Historical evolution

From the 18th century onwards, history marked the development of the law of tort by developing and strengthening its public character in at least two ways. First, punitive damages were made available as a remedy, and their originally private nature shifted towards the modern public one. Second, the Industrial Revolution generated changes within the law of tort which led to the inclusion of broad social considerations within the scope of the decision whether or not to award damages.

Punitive damages have long been one of the remedies available in the law of tort. The jurisdiction to award punitive damages dates back at least to the 18th century.[1] Their purpose, which is specifically to deter and to punish, has prompted them to be labelled a ‘quasi-criminal’ remedy, thus emphasising a public aspect of the law of tort. Such damages, however, were originally used to justify an award of damages over and above the plaintiff’s material harm, thus giving juries a wider discretion in their awards of damages. Historically, punitive damages were therefore a remedy of a private nature. It is only in the 1760s that courts started to justify an award punitive damages as serving another goal, that of punishing the wrongdoer. In practice, by the end of the 18th century, the goal of punitive damage awards oscillated between compensating immaterial harm and punishing the defendant. In the 19th century, English law expanded the scope of compensatory damages to include immaterial harm; the scope of punitive damage awards was then correspondingly reduced. This ultimately led courts to speak of them exclusively in terms of punishment and deterrence; nowadays, punitive damages are no longer compensatory. ‘Admitting into the civil law a principle which ought logically to belong to the criminal’[2] has had two major consequences. The first is obvious: it introduced into the law of tort objectives of retribution and deterrence, which usually belong to the criminal law. The second flows from the first: it has altered the scope of private law, introducing questions of public concern into disputes between private parties.

The industrialisation process also had a heavy impact on the nature of tort law. Because of the spreading of machinery, serious accidents became commonplace. This led in the 19th century to the development of liability insurance, originally as a mechanism of protection for employers against lawsuits from employees. Tort law, which had originally been built around the notion of fault, consequently became identified by the mid-20th century as serving goals of loss transfer (away from the victims of accidents) and loss spreading throughout society. Although the exact impact of insurance in the change in the nature of tort law is disputed, the understanding of tort as serving functions of deterrence and loss spreading undoubtedly led to the disentanglement of notions of moral fault and liability. It also introduced into the reasoning leading to tort verdicts factors not limited to the facts of the dispute between two private parties. By introducing broad social considerations into tort disputes, ‘tort suits … ceased to be “cases and controversies” adjudicated under law and became instead occasions for judges and juries to regulate behavior on a forward-looking basis. In sum, tort had transformed itself from private to “public” law, whereby it functioned to achieve “collective,” not “corrective,” justice.’[3]

Political change

Alongside historical developments, the political climate also evolved. This led to the broadening of the scope of tort compensation, and to the development of new functions for tort law in relation to governmental accountability and protection of human rights.

In the aftermath of the Industrial Revolution, at the end of the 19th century, the political situation was changing in Britain. The tort system was flagged as inadequate to protect victims of accidents, be they industrial or not. Courts were flagged as having been too protective of employers in negligence actions brought by injured employees. The introduction in 1897 of the Workmen’s Compensation Scheme was the first step towards the advent of the welfare state. Such political change undoubtedly influenced the courts, which started to broaden the scope of compensation (see, for example, the enunciation of the ‘neighbour principle’[4]; the limitations imposed on the defences invoked by employers; the determination of fault by reference to an external, objective standard).

The political climate influenced another change in the legal system: the move towards a rights based system. Various instruments, both international and national, now protect fundamental rights. The most important, in the past decades, is the Human Rights Act, which came into force in October 2000. It did not integrate all of the European Convention on Human Rights (ECHR) provisions, however both the Convention itself and the jurisprudence of the European Court of Human Rights has influenced the law of tort. In a speech given in May 2009, Lady Justice Arden identified various techniques through which Convention values influenced the development of tort law. The ECHR has sometimes inspired change in the law – for example, it broadened the scope of the action for breach of confidence as a remedy against the wrongful disclosure of confidential information. It has also been used as a way of developing some areas of the law, such as damages (thus guaranteeing a minimum level of governmental accountability – an issue raised during Seminar 2 at Warwick University) and as a cross-check mechanism, to check that ‘the common law remains up to date and in accordance with the standards to be expected of a modern democratic society’[5].

Concluding remarks

Some might debate whether tort was ever purely private. It has been argued that ‘what appears to be “private” can always be characterized as “public”’.[6] As such, the vindicatory role of tort law as a means of exoneration from an accusation has an inherent public character – it will be achieved through a symbolic, public recognition by the court that the defendant harmed the claimant. Further, some advance the argument that private law is, to some extent, incoherent since state institutions such as courts and the legislature are involved in the promulgation and enforcement of rights.

Whatever one’s opinion on the original private character of tort law, it is clear that its evolution is one which tends to make it more and more public. The historical evolution of the law of tort is one of a shift towards a more public nature of this area of the law. Its awareness and receptiveness to political change also attests that its nature has changed. It is no longer purely private. The consequence of this shift is the creation of a grey area, which seeks to reconcile ‘the nineteenth century requirement of individual fault with the idea of a wider social responsibility’.[7] In turn, this generates tensions that it is important to solve, in order to avoid the law becoming ‘more flexible but less just’.[8]


[1] See: Wilkes v Wood (1763) Lofft 1 ; Huckle v Money (1763) 2 Wils 205.

[2] Lord Devlin in Rookes v Barnard [1964] AC 1129.

[3] John C P Goldberg, ‘Twentieth Century Tort Theory’ (2003) 91 Geo L J 513, 522.

[4] Donoghue v Stevenson [1932] AC 562.

[5] Ashley v Chief Constable of Sussex [2007] 1 WLR 398 at [211].

[6] Christian Turner, ‘Law’s Public/Private Structure’ (2012) 39 Fla St U L Rev 1003, 1005.

[7] Mark Lunney and Ken Oliphant, Tort Law: Texts and Materials (5th edn OUP, Oxford 2013) 17.

[8] Ernest Weinrib, ‘Punishment and Disgorgement as Contract Remedies’ (2003) 78 Chi-Kent L Rev 55, 103.