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Seminar 4 – Programme – Warwick, April 30

Venue: Institute for Advanced Studies Warwick.

9.30 – Coffee

10.00 Panel 1 – Chair – Emily Grabham

  • Mike Segalov – Occupy Sussex
  • Melanie Strickland  – No Dash 4 Gas
  • Elena Loizidou – Dreams, Feelings and Disobedience
  • Brenna Bhandar – Private Publics:  juridical conceptions of the public good

 Panel 2 – Chair – Matthew Thompson

  • Antonia Layard –  Protecting (Urban) Public Spaces: Playing by the rules or playing out?
  • Luke Bennett – Old Habits Die Hard
  • Honor Brabazon –  Juridification, Technocratisation, and Strategies of Dissent in the Neoliberal Political Sphere
  • Tara Mulqueen –  Neither Public Nor Private: An Historical Perspective on Co-operatives and Mutuals

Panel 3 – Chair –  Mairead Enright

  • Lisa Adkins –  Disobedient Workers, The Law and the Making of Unemployment Markets
  • Kenneth Veitch – Welfare and the Politics of Contract
  • Steven Hirschler – COMPASS Housing: The asylum experience and modes of resilience
  • John Grayson – Asylum Housing Rights in Asylum Markets – the campaign against G4S


 End

Dinner – 7pm

Details of Seminar 4 – Protest, Precarisation, Possibility

This interdisciplinary seminar will take place on April 30 2014 from 10am to 6.30pm, at the Institute for Advanced Study, University of Warwick.

Increasingly, private law appears in the the government of unruly political movement and resistance – through the privatisation of public space and the designation of protest as trespass; through the contractualisation of public services and the discipline of labour; through the generation of private spheres where government power is deployed in unanticipated ways.  How should we characterise the experience of government through private law? What vulnerabilities does  private law highlight in those it governs? To what extent does private law confer overlooked capacities on troublesome actors, which can generate new strategies of resistance?

Speakers will include: Lisa Adkins (Newcastle Australia), Stuart Hodkinson (Leeds), Kenneth Veitch (Sussex), Honor Brabazon (Oxford), Luke Bennett (Sheffield Hallam), Elena Loizidou (BBK), Tara Mulqueen (BBK), Antonia Layard (Bristol), Steven Hirschler (York), Brenna Bhandar (SOAS), Emily Grabham (Kent), Matthew Thompson (Manchester), John Grayson (SYMAGG), Michael Segalov (Occupy Sussex) and No Dash 4 Gas.

To register your interest in attending any of the seminars please use the registration form here. Alternatively email m.enright[at]kent.ac.uk.

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.

Feminist critiques of the public/private dichotomy: Godden’s Tort Law, Human Rights and Rape: Beyond the Enforcement of Criminal Justice

This post is by Linda Roland Danil, who is one of our PhD associates.  The post responds to Nikki Godden’s paper from our second workshop, which you can listen to here.

One of the things that “The Public Life of Private Law” seminar series has provoked is a reflection of the varied feminist critiques of the public/private dichotomy. As Nikolas Rose provides, the public/private binary is one that finds its roots as far back as Aristotle and his distinction between the polis (the city-state) and oikos (the household); in the 18th and 19th centuries, this distinction was further reinforced in liberal political philosophy, particularly due to the work of J.S. Mill and his opposition of a realm of legitimate public regulation (the market), and a realm that remains free from interference, and in which personal autonomy and freedom of choice therefore predominate (the home) . As is well-known, this divide has been further gendered and sexed, with the market being designated as a male empire (and thus masculine), and the home as female (and thus feminine).This binary, or the doctrine of separate spheres, works to impose and perpetuate patriarchal domination, and since the emergence of capitalism in the 19th century, has imposed and maintained the domination of a capitalist, patriarchal ruling class.

Susan Gal has further provided an interesting analysis of the semiotics of the public/private distinction, and drawing upon Peircean semiotics specifically, as developed within linguistic anthropology, dissects the manner in which the binary persists ideologically, in spite of persuasive feminist arguments that demonstrate the largely illusory and highly contingent nature of the public/private divide. Gal therefore sheds light upon the way the public and the private function communicatively, and thus, considers them as contingent “indexical signs” and as a discursive occurrence rather than as particular spheres, places, or modes of interaction, let alone institutions or practices. Further, not only are they indexical signs that are dependent on their interactional context for meaning, they are also “co-constitutive cultural categories” (and here one can add the standard Derridean refrain that they constitute a binary in which one is category is privileged over the other that one must thus seek to deconstruct and thus subvert; in this case, the public over the private, and thus, the male over the female). These indexical signs, which fundamentally construct and delineate social reality, are therefore appropriated by political meta-discourses and consequently shape embodied subjectivities (and “the personal is the political” feminist slogan finds its full and even literal expression here). Moreover, Gal further characterizes the dichotomy as a fractal distinction, i.e. as one that can be reproduced in different, and/or smaller or larger contexts. Such a conceptualization of the public/private dichotomy allows for the full freedom to view the binary not in a homogenous way, but from a multi-layered, multi-varied perspective that is sensitive to the nuances and innovations of re-categorizations.

There is much room for contestation in the public/private dichotomy, as well as the possibility of reification through legal regulation, institutionalization or processes of normalization. As Gal argues:

“[The] public and private will have different specific definitions in different historical periods and social formations. But once a dichotomy is established, the semiotic logic forms a scaffolding for possibilities of embedding and thus for change, creativity, and argument. In these nested dichotomies, there is always some skewing or redefinition at every iteration. Furthermore, redefinitions that create a public inside a private or a private inside a public (be it in identity, space, money, relation) can be momentary and ephemeral, dependent on the perspectives of participants. Or they can be made lasting and coercive, fixing and forcing such distinctions, binding social actors through arrangements such as legal regulation and other forms of ritualization and institutionalization.”

Moving on to the public/private distinction as articulated in the legal realm, the first argument of importance is that the notion that judicial decisions are somehow neutral and value-free, and completely dissociated from their political, social, historical and cultural context, is entirely misguided This is even the case for the supposedly “formally neutral redistributive regime” that characterizes tort law. Instead, the law is both reflective and productive of social norms at large, and it impacts and contributes towards shaping subjects and subjectivity. Joanne Conaghan in particular has highlighted that feminist approaches have argued that gender is not only implicated in judicial decision-making, but also in the form and content of law. Other approaches regard the law as reflective of broader social and cultural values. Foucauldian perspectives would further argue that law, as a discursive regime, has a disciplinary effect that not only constructs, but maintains, inter alia, gender hierarchies. With regards to harm specifically, Conaghan provides a powerful argument as to the gendered nature of harm (both in terms of its characterization and its recognition):

“[…] there is little that is ‘natural’ about our understanding of harm. It is a deeply social concept, and taking gender as a feature of the social, it is also highly gendered: gender shapes the distribution of particular harms and gender hierarchies produce an ordering in which some harms are privileged over others.”

It is within this context that one can place Nikki Godden’s paper, “Tort Law, Human Rights and Rape: Beyond the Enforcement of Criminal Justice”. Godden discussed the potential legal avenues that rape survivors could take against failures by the state (and specifically, the police). Godden began with some shocking statistics: approximately two-thirds of rape complaints do not make it to trial, there is only a 6% conviction rate out of reported cases (the “justice gap” ) and in between 75% to 95% of rape survivors do not report the rape to the police, partly due to the way in which survivors are treated by the police and the criminal justice system generally. This is arguably partly due to the “rape myths” that inundate the social sphere and inform the manner in which rape survivors experience the criminal justice system, as well as the civil law system . Some rape myths reinforce stereotypical gendered conceptions of the public and the private, and of men being the potentates of the public whilst women are relegated to the domestic, and thus private sphere. For example, one myth is that most rapes are committed by strangers (and thus women should not go out unaccompanied at night), whereas in fact, most are committed by men women already know (in around 90% of cases).

Elsewhere, Godden had already expressed her (justified) disillusionment with the criminal justice system and its disproportionate failure to provide the necessary justice due to rape survivors, and thus argued for a move towards other legal avenues, specifically by arguing for redress through tort law (which may be utilized in addition or as an alternative to the criminal justice route), this time against another individual or his/her estate, rather than the state . As she argues: “While it is imperative that efforts continue to be made to improve the criminal justice system, at the same time there seems little chance of immediate improvement whatever measure of evaluation is adopted.” Thus, Godden does not argue for tort law or human rights law to supplant criminal law, but rather, that in circumstances that are disproportionately hostile to rape survivors, one has to make do with what one has.

With regards to the gendered nature of rape, and echoing Conaghan’s arguments, Godden argues: “First, the term ‘rape’ is loaded with gender-based assumptions and myths; and secondly, it is a gendered act, defined as the penile penetration of another’s vagina, anus or mouth, and so can only be perpetrated by men.” Indeed, Godden argues that it is specifically the gendered nature of the harm of rape that renders it worthy of attention. Addressing rape is thus not only about addressing the individual injustice that has occurred, but about addressing gender inequalities in society as a whole, that are further perpetuated and maintained by sexual violence and by the failure of the criminal justice system to adequately address it.

In Tort Law, Human Rights and Rape, Godden therefore highlights the failures of the criminal justice system with regards to rape survivors, and examines the manner in which tort law and/or human rights legislation could consequently provide some impetus towards better criminal justice standards. Godden further argues that the problem is not with the substantive law per se, and specifically, the Sexual Offences Act 2003 and the definition of rape contained therein, but rather, the manner in which the law is implemented. Firstly, as she argues, the police or other public bodies such as the Crown Prosecution Service may have breached their obligations under the European Convention on Human Rights (ECHR) with regards to a rape survivor. The relevant Articles of the ECHR would be Art. 2 (the right to life) Art. 3(freedom from torture) and Art. 8 (the right to a private and family life). One of the most interesting moments in Godden’s paper was when she argued for the standards of obligations under tort law (within the context of sexual violence cases, at the very least) to be brought into equivalence with the obligations under human rights law, or alternatively, on the basis of appropriately balancing policy arguments versus imposing a duty of care, for a duty of care to be more strongly applied on the police. In relation to balancing policy arguments with regards to imposing a duty of care, it is here that the public/private distinction most prominently reveals itself to be constructed and contingent.

However, as Godden explains, using tort law and human rights law in this way will only hold the criminal justice system to standards set within the dominant conceptualisation of criminal justice. This conceptualisation supports the division of “public” (typically the symbolic) harms of rape which are addressed by the criminal law, and the “private” (typically the material) harms of rape which are responded to by tort law, and in practice borne most commonly by the individual. Thus, in the final part of her paper, Godden considered how reparation, a remedy associated with human rights violations, could be used in the criminal justice context to better respond to the harms of rape, and which would trouble the public/private divide.

To conclude, Godden’s paper forcefully highlighted the manner in which the public, through the criminal justice system, has overwhelmingly failed women, and the consequent way in which the private, through tort law, may provide an alternative/additional avenue of redress through a civil action in negligence (albeit with slim chances of success, as per Hill v Chief Constable of West Yorkshire , in spite of the highly persuasive arguments that Godden highlighted as to a standard of care being applied more rigorously on the police, at the very least within the context of domestic and sexual violence cases and those involving vulnerable victims ). Such actions may be supplemented or supplanted by recourse to human rights legislation. Ultimately, satisfactory reforms in the way that the relevant legislation with regards to the crime of rape is implemented are still urgently necessary.

Seminar 3: Religion, Self-Government and Private Law – Change of Date

The third seminar in the series, originally planned for September 20, will now take place at the University of Kent (Keynes College Room KS14) on September 19, 2013.

Private law is associated with the possibility of individual and group self regulation. It allows citizens to depart from and supplement public norms. Our focus in this seminar will be on the developing religious use of private law to depart from the norms of state family law. Should we be troubled by ‘privatized diversity’  and the spectre of ‘law without a state’?  Does the emancipatory adage ‘from status to contract’ entirely capture the use of private law by minority groups to defend and sustain territory apart from the state? Does the channelling of religious disputes through private law depoliticize and marginalise them?

Confirmed speakers include: Emmanuel Melissaris, Emmanuel VoyakisSamia Bano, Aileen McColganDaniel MonkAina Khan and Christine Schwobel.

To register your interest in attending any of the seminars please use the registration form here.

The Public Life of Copyright Law.

This post is by Linda Roland Danil, who is one of our PhD associates. 

In a paper given as part of the first workshop in this series,  Anne Barron argued that there are two seemingly opposed forces currently shaping global copyright law and practice. Firstly, there is the internationalization of capitalism’s drive to accumulate through the mode of dispossession of formerly common resources, which in the context of Barron’s paper referred to intangible resources. This accrual through dispossession is enforced by the expansion of global copyright norms, and supplemented (and even supplanted) through the implementation of technological locks and licensing agreements that major firms create in order to further subject the intangible assets to regimes of control and the logic of profit-accumulation. These private regimes are further advantageous in that they are removed from public oversight and control. These tactics are led, Barron argued, by an agglomeration of corporations in the entertainment and software industries, and as she provided:

“All of this is producing a privatization of previously public goods that many commentators have compared to the forced enclosure of common lands with the transition from feudal to post-feudal forms of landholding.”

The drive to protect copyrighted material is presently effected not just by right-holders seeking to prevent the unauthorized use of copyrighted material: as Barron argued, “right-holders are now aiming to shape the networked environment itself so that traffic to and from suspect sites and users is disrupted, or blocked altogether”, through a ‘three-strikes’ regime enacted by Internet Service Providers (ISPs) towards infringing subscribers (a regime that begins with a warning letter, and culminates in the disconnection of the service if the subscriber ignores the ISP’s warnings). The strategy of controlling Internet-traffic, and by proxy, the connections made in cyberspace, Barron argued, is “[…] oriented towards enclosing and propertising the digital networked environment itself.”

The second force that is presently shaping global copyright law and practice is that of the counter-movement that has arisen in response to the corporate control of intangible assets, within the shift from the Fordist to a post-Fordist capitalist context. This movement is collective in nature, and based on the premise of communal ownership of knowledge and cultural resources, and thus governed by the overarching principle of free and open source software (FOSS). Barron was concerned, however, by the paradox that underlies FOSS, which is that FOSS developers institute the principle of accessibility through the same legal mechanisms that allow for the source code to remain exclusive in other software programs (and thus subject to proprietary control). As Barron argued, such developers forego the option of placing codes in the public domain and renouncing their copyrights in them, and instead, license their copyrights in a variety of subversive ways, such as primarily by recognizing a greater range of user freedoms that those allowed for with proprietary copyright licenses (consider the most popular example of this initiative, Creative Commons1).

It is within this context that Barron’s paper introduced the public (or the political) into the sphere of the private (i.e. copyright law), and highlighted the important fact that the issue of copyright law, although it may at first strike one as being essentially a private law issue, is actually incredibly political (and thus public) in nature. The inherently capitalist, profit-driven motives of copyright laws are subverted in favour of anti-capitalist, and at their most radical, mandated anti-exclusionary copyleft practices. Further, copyleft licensing practices as political tools rely on intellectual property rights for the efficacy; copyleft practices do not abolish copyrights, but rather, re-appropriate and re-work them, and thus, the private remains inherent within the communal. Copyleft licensing practices also impose obligations onto others that the terms of licences must be unequivocally perpetuated in modified versions of the work, and in this way, impose obligations in the same manner that copyright end-user licensing agreements do. In addition, and conflictingly, rather than largely destabilizing copyrights, the FOSS movement has actually further enabled them. As Barron argued:

“The expansion of this space has arguably enabled copyright norms and practices to penetrate deeper into the quotidian processes of cultural production than would otherwise have been the case, thereby strengthening the grip of the notion that informally organized domains of communication can be sorted into objects of property and allocated to individuals.”

Barron introduced doubt into the idea that through initiatives such as FOSS or a copyleft clause, capitalism could in some way be radically undermined. On the contrary, capitalism has turned the tables and turned even that which potentially threatened it into a profit-making opportunity, by cannibalizing the techniques forged by FOSS developers and utilizing it for its own ends. Capitalism and autonomous Marxist arguments emerging from thinkers such as Hardt and Negri therefore paradoxically find themselves on common ground, championing the same causes of openness and sharing. It is this paradox, alongside the FOSS movement’s tendency to problematize, and subject to public debate and remaking the technical infrastructures that govern communal digitally-mediated arenas, that has concerned Barron’s recent and current work in the field. The question of whether copyleft licensing is therefore a challenge or an abettor to capitalism led into a more in-depth discussion of Hardt and Negri, Gunther Teubner and his work as inspired by Luhmann’s systems theory, and the similarities and differences between them.

Barron also provided an incredibly thought-provoking assessment as to the consequences of the infiltration of (capitalist) economic rationality into cyberspace (which amounts to nothing short of the violation of the rule of law and effectively constitutes totalitarianism):

“Oriented towards enabling every online exchange to be monetised, it must permit individual users to be identified, their movements to be tracked and every use of content to be controlled. It tends towards a level and intensity of behavioural regulation impossible to achieve in the offline world, and in so doing it compromises rights of free movement, association, expression and privacy that are guaranteed in that world. Further, the rules embedded in this code are so rigid and formal that they allow no room for argument in the process of application, and make no space for the ‘reasonable illegality’ that is an abiding feature of traditional legal orders; they are also self-enforcing. In effect, the code that now controls much of the Internet represents a fusion of law-making, law-application and law-enforcement, and thus the negation of the principle mandating the separation of these functions.”

In conclusion, Barron’s paper not only provided a fascinating introduction into the nature of contemporary copyright laws, but also introduced anti-capitalist free software counter-movements (and the paradoxical nature inherent to them) and allowed for the potential to explore different ideas as to how best conceptualize these counter-movements and their potential governance, such as through autonomous Marxist arguments emerging from Hardt and Negri, and as inspired by Teubner.

1 http://www.creativecommons.org

Nicky Priaulx: Negligence is Negligence: Implications for an Egalitarian Agenda

We are very pleased to host this guest post from Nicky Priaulx of Cardiff Law School.

INTRODUCTION

Much of the work we do is shaped by a convention of presenting neat, linear argument based upon expertise and insight in a way that the present author at least, finds difficult to do as part of a conversation around ‘constitutionalism of private law’. She is largely an outsider to a broader European debate in which concepts of not only ‘constitutionalism’ but ‘private law’ admit of multiple meanings, shaped by geography, political and historical context and the distinct legal cultures in which those concepts and systems have emerged. Even from a domestic perspective, the applicability of what she discusses is incredibly limited; not all of us will be speaking to the same brand of private law, and few of us can profess to cover private law as a whole. For the present author her private law is largely conceptualised as the tort of negligence, which is rather a narrow lab. Nevertheless, these caveats aside, undoubtedly there are important and interesting doctrinal question for private lawyers as to what is likely to substantially determine the outcome of disputes between private parties (fundamental rights law or private law),1 as well as broader questions too: whether a greater convergence of human rights with private law changes much of significance in the context of private law, and indeed whether convergence is desirable.2

Whether a greater convergence of fundamental rights law and private law is desirable or not is hard to evaluate. My own approach to this is to explore its potential significance to the tort of negligence in egalitarian terms. It is worth noting that the concept of egalitarianism arises here in two ways, which quickly make apparent my stance. The first is legal egalitarianism, where one might for example encourage particular shifts in tort policy to encompass a range of previously unrecognised harms for fairness and equality before the law. The second is social egalitarianism, which takes a quite different stance in asking whether the system as a whole serves society well and advances the ideals of fairness and equality in a more general and significant way. Both lead to quite different conclusions in terms of how one views constitutionalism. From the perspective of legal egalitarianism, there is little doubt that we could welcome an approach which seems to me to have the capacity to radically challenge existing categories within the tort of negligence, and make more evident distinctions drawn by conventional negligence law which seem capricious and unfair. But from the perspective of social egalitarianism, legal egalitarianism really doesn’t amount to much; given the way that the tort of negligence operates in practice, which in itself is a pretty limited vehicle for social justice, constitutionalism of private law as it speaks to negligence, is bound to also promote the most negligible contribution to social justice.

LEGAL EGALITARIANISM: CONSTITUTIONALISING DAMAGE

To a significant degree I map the constitutionalism debate onto a line of analysis which centralises the concept of damage in the context of negligence. Admittedly, this is a narrow focus but beyond an evidenced obsession with the concept,3 my case for it is this: a focus on damage, rather than ‘rights’ or ‘interests’ in a more general sense, allows one to track more keenly the kinds of harms and injuries that the law picks up, and those that it does not, as well as the way that law expands over time to accommodate harms of a different kind. Or indeed, retracts; my initial fascination with damage as a category developed as a result of wondering why it should be that judges at the highest appellate level were prepared to change the law so as to deny parents of an unwanted but healthy child born as a result of negligence in family planning compensation relating to the maintenance costs of raising that child.4 From the perspective of legal egalitarianism, the rhetoric of the courts in depicting the birth of an unwanted child, for whom someone will have caring, emotional and financial responsibilities, as an inappropriate subject-matter of damage (rather, a ‘joy’ or a ‘blessing’) or as purely economic loss, struck me as highly problematic. But it also presented the concept of damage as an interesting hermeneutic for exploring a range of cases and for adjudging negligence more generally. One can ask with this concept in mind, is the law internally consistent in the harms it picks up and those it denies, what does ‘damage’ mean and to what extent do the lines that law draws in deciding the difference between harm/no harm, actionability or non-actionability really make sense? What justifications are given for those lines, and are they fair?

So that’s the starting point for discussion. Here I’m trying to boil down quite a large thesis, so hopefully the reader will forgive what follows, for it’s really crudely summarised.5 Elsewhere I talk about personal injury as a form of damage, and ask questions about how personal injury comes to be defined, explore how the law has defined it as it plays out in different cases, and question what overarching justification can be found for the harm/no harm boundary. The basic thrust of what I argue is that if these boundaries are justified by the practical legal need to simply draw boundaries, insofar as negligence cannot admit every harm, then we can to some degree accept that the often capricious, unfair and inegalitarian choices that the law of negligence makes about actionability is largely what makes negligence work. That is, in fact, what I think. Start pushing fairness in the door, negligence starts slipping. There are a few reasons for this; the first is that ‘drawing lines’ isn’t much of a justification, and in cases where claimants have clearly suffered dreadful harm, ‘drawing lines’ presents judges with no narrative explanation to make their decisions – or indeed legal policy – sound logical, coherent, or remotely sensible. As a result, I claimed that judges guided by different considerations like fairness, equality, treating like cases alike, will deeply struggle to maintain these boundaries. Furthermore, and significant to the current contribution, constitutionalisation as a process, helps to unravel this latter process; it challenges the way that the concept of damage has been conventionally understood by subtly changing the kinds of lens by which ideas of ‘harm’ come to be adjudged.

As I explore elsewhere at length, an analysis of the concept of damage allows one to see this process of gradual expansionism.6 In broad topological terms it looks a bit like this. We start from a position where the courts have typically taken a restrictive definition of what counts as a personal injury, so that for an actionable claim one needed to manifest physical damage – a deleterious corporeal impact. The first inroad to this this conception of damage might well include those narrowly circumscribed situations where claimants can demonstrate that a duty of care exists to protect them from purely psychological harm. Other than these, harms of a psycho-social nature, those which are not simply consequential upon physical loss, fall outside the actionability ideal. However, the second potential inroad to the orthodox conception of personal injury, and by far the most serious, I claimed was likely to come from the ‘damage hybrid’ suit – something that looked so analogous to a personal injury – every bit as damaging in its effects and repercussions (perhaps more so) as a physical injury, that to deny such claims would seem manifestly unfair. And they would be manifestly unfair; insights from feminist theory, from psychology, and indeed, appealing to our own intuitions about what it is that ‘harms’ us makes apparent how drawing a distinction between physical bodily harm and psycho-social harm cannot be justified on the grounds that the former kind of harm is more serious, more corrosive of life or more richly deserving of reparation. That would simply be fiction, but it is a fiction which some have come to believe for an incredibly long time.

As such, we should see general developments in negligence and in particular a movement away from quite sticky ideas about ‘physical damage’ as quite significant. Suits for wrongful conception in which the courts awarded a ‘loss of autonomy’ award,7 and claims for the careless destruction of sperm samples,8 are controversial illustrations of legal inventiveness where the factual variants had failed to squarely fit ‘orthodox conceptions’ of personal injury and damage. The success of the educational neglect claims alleging damage in the context of the failure to ameliorate dyslexia, though initially baffling the courts as to whether the damage should be typified as a mental injury sufficient to constitute a personal injury or a form of economic loss,9 were later accepted as claims for personal injury ‘in a post-Cartesian World’.10 Even judges themselves can be artful at unwittingly pushing at the boundaries of damage. Though failing to fit what the damage concept in negligence requires, notably physical bodily harm, by a majority the House of Lords in Rees created  a ‘Conventional Award’ of £15,000 that would apply to all cases of wrongful conception to reflect the loss of autonomy experienced as a result of unsolicited parenthood.11 In so far as the present author saw this more as a consolation prize in the face of denying a proper remedy,12 others see the award as representing ‘a significant departure from previous categories of recognised harm’ towards a more ‘rights-based’ conception of damage.13 While Nolan’s reflection on such cases prompts him to suggest that the expansion of the categories of actionable damage ‘should be welcomed as evidence’ that courts are not priviledging interests capable of precision in monetary terms over those which are not, like the intangible harms,14 that kind of conclusion seems slightly over-cooked. Nevertheless, undeniably these developments constitute a quite significant shift away from a strict conception of damage as physical bodily harm, and towards a broader constitutionalised conception of harm that is more capable of accommodating critical aspects of our humanity.

For the doom-monger, this will surely be the opening of Pandora’s Box, for in the wake of that shift, heavy intellectual challenges potentially lie before the court where lawyers will seek to capitalise upon the shifting boundaries of damage. Hybrid claims deeply challenge these demarcation lines because unlike the say, bystander claims involving purely psychological injury, these cases look very similar to the contexts in which conventional personal injury claims arise. Where the circumstances look so hair-splittingly similar, courts keen to restrict negligence will be left having to draw flawed distinctions between physical harm and psycho-social harm – a distinction, which seems impossible to do. This will be a major challenge for English law. Within the paradigm of negligence, there is no real conceptual machinery for restricting the damage concept to physical damage; from ideas of the ‘seriousness’ of the harm, ideas of fairness or equality, none really bears out in practice. Rather the most robust defence of drawing such (frequently capricious) lines in negligence owes more to the need to draw lines to be negligence.

Cases faring less well in the past for failing to demonstrate an obvious physical injury or satisfy the requirements of primary victim status may be repackaged for success. For example, while the action of claimants suffering distress after being trapped in a lift failed on the grounds of there being no actionable damage in Reilly v Merseyside Regional Health Authority (1995) 6 Med LR 246, cases involving negligent imprisonment might more convincingly run in serious instances where claimants have been deprived of their liberty, given the importance of ‘freedom of movement as an interest in its own right’.15  For some, the educational neglect claims whilst only intended to apply to cases involving an undiagnosed and untreated learning disorder, constitute the starting point for a range of broader challenges;16 on compelling facts, the right to education might seem sensibly embraced within the damage concept and only a small incremental step away from Phelps.17 From these kinds of cases, to the reproductive torts, it is not difficult to imagine factual variants. While the Court of Appeal in Yearworth found that the destruction of cancer survivors’ stored sperm admitted an actionable claim, the principle seems barely stretched by extending this to permit claims for the wrong embryo being implanted, and indeed to all the claimants thereby affected.18 It is just one small step. These and even farther reaching claims such as sex ratio skewing of an entire community as a result of environmental pollution,19 suggest that a broader conception of damage at least sends out a wider invitation to ‘have a go’. Meantime, the pressure for negligence law to adopt a more generous approach to the highly restricted purely psychological damage-via-shock cases, continues unabated.20 The point however is this; the greater recognition of the hybrid claim and shift away from an admittedly capricious notion of damage changes the legal landscape. The moment that the courts discern a greater inquisitiveness into the psycho-social aspects of these cases, the line between deserving and undeserving cases will fall away. So much of what it means to be injured and harmed is located at psycho-social level. As such, some well-meaning commentators might argue, the appropriate response to this incoherence and unfairness would be for the law to expand so as to encompass them.

SOCIAL EGALITARIANISM: NEGLIGENCE IS NEGLIGENCE

 How might one view these developments? From the perspective of legal egalitarianism such developments look entirely promising. If one seeks to use private law as a strategic vehicle for egalitarian ends, expansionism appears like a positive development; indeed, the inclusion of purely psychological damage as a recognised form of damage was vociferously argued for by feminist commentators who rationalised that this kind of harm was one more often experienced by women, as women. The shift away from the ‘physical hook’ ideal for actionability opens up possibilities for embracing a range of harms which fairness, equality and treating like cases alike seems to demand. Nevertheless, there are those, like David Nolan who concerned with the constitutionalisation of negligence law, have noted its capacity to expand categories like damage in ways that will render negligence incoherent. Pointing to the disparities between ‘Convention legal order’ and the domestic law of negligence, Nolan notes that forms of harm which would not be actionable in English law, such as ‘distress, anxiety, inconvenience and feelings of injustice, helplessness or humiliation’ come to be compensable by virtue of standing as a human rights violation.21

 

In one respect, the present author is slightly sympathetic to Nolan’s concerns. This is not, to be clear justified by ‘coherence’ worship however; given a choice between coherent capriciousness and incoherent legal logic which values fairness and equality, my preference is for the latter. We often value logic more than we ought, and most forms of logic can look illogical depending on what one’s overarching logic is. Rather my concern is slightly different, for I wonder what brand of fairness is being served up through negligence. This is the social egalitarian view. Given the variety of situations that have arisen thus far, from frustrated reproductive plans, to deprivations of liberty, it is difficult to conceptualise a sensible ‘end game’ position here, for two reasons. Firstly, while the courts are open to criticism for their heavily reliance upon the floodgates argument in the context of purely psychological damage – which appears speculative in the absence of evidence or a comparative analysis of jurisdictions who seem far less troubled by the prospect of broader liability in the context of occasional but avoidable catastrophe as to discount it – the hybrid claims, much aided by an increasingly constitutionalised form of damage, nevertheless do seem to raise different considerations. The circumstances which shape them are amorphous, unlimited and could arise in virtually in any sphere of normal, daily life. For those that would point to the capability of other essential ingredients of negligence concepts to fend off the floodgates to manage a more fluid damage concept, this appears fairly myopic given the extent to which all the concepts of negligence are conceptually linked and quite critically, informed by the damage sustained. As such a loosening of the damage concept beyond physical harms alone may achieve little, or too much, as to constitute a significant if not irreparable breach in the sea-wall. Arguably, arbitrariness in determining which kinds of damage should be the subject-matter of redress may be the thing that sustains the negligence tort itself.

 

However, given that the present author is not much of an advocate for negligence, her second concern as to ‘end game’ is by far the most important, for what is questionable is what might be gained by extending negligence to accommodate broader harms in the sense of what precisely that can do for humanity. For the author, working on the reproductive torts cases and seeing evident gender injustice within the law, the law struck her as an instrument for equality in a way she now thinks was misguided and based on a romanticised Erin Brockovich portrayal of tortious justice. A striking feature of the debates as to how negligence might advance particular sections of society is how disconnected these are from what constitute pretty fundamental weaknesses attending the torts system. Though there are compelling moral and legal grounds for extending negligence, many of the ‘advances’ we perceive ourselves as making within the law start to look somewhat partial when situated in their broader social context. Take for example the efforts of scholars to extend the law of tort to recognise traditionally excluded forms of injuries in the name of ‘equality’22 – this really boils down to ‘equality’ within tort. Tort law abiding by the principle of equality in the sense of drawing no formal distinctions between individuals on the pure grounds of gender, race or ability, must surely be viewed as significant – at least, gains for those that come before the law. But that is legal egalitarianism, which is really quite minor indeed. Beyond aspirations for equality within negligence, the overall social accomplishment will be a great deal harder to make out.

 

For some, this will read as traditional Ayitah – but Atiyah’s concerns are every bit as valid now, as they were in his heyday. If one takes into account the fact that tort reaches a rather small (and privileged) community of injured beneficiaries, that many injuries are sustained without fault and in ways that tort simply doesn’t capture,23 that many claims are settled and never reach court, that much of negligence is really chasing insurance so that compulsorily insured areas make up the vast bulk of claims (e.g. RTA and work accidents) which in turn are addressed in a highly institutionalised and routine fashion (rather than through the ‘court’ ideal),24 and that our response to injury is financial compensation, equality gains start to look far less impressive outside of tort. The vast majority of tort claimants sustain only minor injury;25 and where road traffic accidents are concerned, seventy per cent of the injuries are attributable to whiplash effects. That is not to say that minor injuries or even whiplash should not be considered compensable items, but merely to note that the idea that torts addresses serious injuries, compensates claimants who suffer catastrophic effects is the stuff of fairy tales. Rather these categories of injury and injured in the context of the work of torts as a whole are very unusual indeed. Rather as Lewis and Morris note,

 

‘it is these minor injury cases which account for the extraordinarily high costs of the system compared to the damages it pays out. But the essential point to note here is that the image of the tort system as caring for the immediate financial needs of mostly severely injured people in society is far from the reality’.26

 

The point is this: we have been so concerned with making gains within the law that we have neglected to address the system as a whole. The gains made within the system may serve largely rhetorical ends because of the way that negligence really works. And it does not look like a system driven by some higher purpose, directed towards the social good. It looks like a system which is highly institutionalised, run by multiple actors, with different purposes, intentions and interpretations of what negligence serves. The bigger picture suggests that if negligence is the sum of its parts, its purpose really ends up looking like being negligence.

For those committed to using the legal project as an instrument for achieving equality this poses a sizeable dilemma. Extending the negligence to embrace the kinds of experiences which profoundly harm us may be a laudable aim in theory, but in practice, we are only reaching a limited and privileged range of beneficiaries, in a highly limited way. Hybrid claims, I think, strongly compel some reflection as to how we respond to harm, and the limits of our current approach. Though the arguments that financial compensation is not commensurable with harms of an intangible nature and cannot ‘restore’ tend to be commercially motivated and consciously designed to encourage policy-makers to cap or abolish such awards,27 there is nevertheless something in the claims. There is no doubt that the hybrid cases looked at here can resonate in economic loss, however, like physical harms, most will also possess a significant intangible component too. We would do well to consider whether financial compensation might be a rather lazy and impoverished means of providing account to victims for the non-economic consequences of injury whether stemming from physical injury or indeed, ‘messed up lives’. Either way, it looks like something less than genuine account for the losses victims do sustain, or indeed something out of kilter with what we expect most tort victims sustain. A broader analysis raises questions about even the most foundational aspects of the negligence ideal – notably those harms accepted unproblematically as damage; physical damage may seem to connote the presence of ‘obvious’ and ‘evident’ injury, so that we can assume that serious effects flow from it, yet this too can be brought into question given the prevalence of minor physical injuries. An analysis of this raises questions that go to the heart of the reparative ideal itself. None of this is to say that no advances have been achieved through, for example, feminist legal activism in extending torts to embrace broader harms, but simply that our efforts may achieve diminishing returns within tort. We might have become a little too addicted to “bolting on” new forms of harm because this seems like the right thing to do, or the legal thing to do, but possibly to the neglect of other tasks which will be every bit as important for achieving equality for all: checking to see whether the foundations upon which we build are solid.

 

CONCLUSION

None of this is to say that constitutionalism does not shift the substantive or procedural boundaries of the private law dispute. Whether typified by a direct application of fundamental rights or the more subtle incremental embrace of human rights as would seem to be the case in English law, constitutionalism certainly offers new opportunities to push the boundaries of the kind of ‘justice’ that negligence delivers. It may more quickly reveal the capricious boundaries between what is adjudged actionable and what is not, that continue to inhabit the substantive law of negligence, and in turn, make it harder for the domestic courts to resist incremental expansionism. As such, constitutionalism of private law may be significant from a legal egalitarian perspective. However, in a broader context, it does not seem so significant. Because the concept of justice within negligence is necessarily bounded, the purposes that negligence serves are individuated and fragmented, dictated by the individual use value in the context of a system driven by conservative incremental logic, constitutionalisation may provide a different peg upon which individual users can attach their claims to encourage incremental expansion – but that expansion heralds little in terms of social justice. Constitutionalism cannot in the broader sense shift negligence towards the attainment of social egalitarian ideals. Only on the narrowest construction of egalitarianism, one that is founded upon a romantic version of what social purpose negligence serves, can negligence be interpreted as serving such ends – for at the end of it all negligence remains negligence.

 

 

 

1 Olha Cherednychenko, ‘Fundamental rights and private law: A relationship of subordination or complementarity?’, Utrect Law Review, 3 (2007), 1-25.

 

2 David Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’, Modern Law Review, 76 (2013), 286–318.

 

3 See for example, Nicky Priaulx, The Harm Paradox (London: Routledge Cavendish Publishing, 2007).

 

4 McFarlane v Tayside Health Board [2000] 2 AC 59.

 

5 Nicky Priaulx, ‘Endgame: on negligence and reparation for harm’, in Feminist Perspectives on Tort Law (Abingdon: Routledge, 2012), pp. 35-54.

 

6 Priaulx, above note 5.

 

7 See, McFarlane above, 5; Rees v Darlingon Memorial Hospital NHS Trust [2003] UKHL 52.

 

8 Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37.

 

9 Phelps v London Borough of Hillingdon [2001] 2 AC 619.

 

10 Per Lord Hoffmann in Adams v Bracknell [2004] UKHL 29, [10].

 

11 Above n 7.

 

12 Priaulx, above n 3.

 

13D Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59, 71.

 

14 Ibid, 87.

 

15 Nolan, above n 13, 63.

 

16 N Harris, ‘Liability under education law in the UK – How much further can it go?’ (2000) 4 European Journal for Education Law and Policy 131.

 

17 Above n 9.

 

18 Above n 8.

 

19 D Scott, ‘Injuries without Remedies: Body Polluted: Questions of Scale, Gender and Remedy’ (2010) 44 Loyola of Los Angeles Law Review 121.

 

20 Teff Harvey, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Oxford: Hart Publishing, 2009).

 

21 Nolan, above note 2, p. 309.

 

22. See for example, Martha Chamallas and Jennifer Wriggins, The Measure of Injury: Race, Gender and Tort law (2010), in which the authors explore the doctrinal, practical and structural obstacles to gender and race equality, and advocate reforms that will extend tort law’s protection to disadvantaged categories of person.

 

23 Most accidents are, as Lewis and Morris note, suffered in the home, or in leisure activities or sport, yet few become the subject of a damages award. From an estimate of 7.8 million accidents occurring in the home, only 0.5 of these formed the potential for a successful tort claim ( Richard Lewis and Annette Morris, ‘Tort Law Culture: Image and Reality’, Journal of Law and Society, 39 (2012), 562-92).

 

24 Ibid.

 

25 See for example, Richard Lewis, ‘The Politics and Economics of Tort Law: Judicially Imposed Periodical Payments of Damages’ (2006) 69 Modern Law Review 418.

 

26 Lewis and Morris, above note 23.

 

27 R M Janutis, ‘Struggle over Tort Reform and the Overlooked Legacy of the Progressives’ (2006) 39 Akron Law Review 943.