Private and Public: The Meaning of Vindication in Torts and Private Law

Abstract

This piece examines the meaning of vindication in private law. In contrast to some other approaches, it suggests that there is no single, institutional conception in the law of what it means to vindicate rights. Rather, it maintains that the idea is a mixed one - both in the sense that it overarches a number of more discrete, distinct ideas regarding the protection, enforcement and declaration of rights; and in the sense that these ideas are themselves based on a plurality of private (individualist) and public (social) justifications. Many of the distinct ideas of vindication which private law expresses are also to be found in public law, though the nature of the rights that public law vindicates is different.

The discussion is located around the decision of the United Kingdom Supreme Court in Walumba Lumba v Secretary of State for Home Department [2011] UKSC 12, where some members of the Court canvassed the possibility of using damages awards purely for the purpose of 'marking' the importance of certain rights. Contrary to some expressed view, it concludes that there is neither space, nor need in the law for such a distinct category of 'vindicatory' damages - indeed that the category attempts merely to reinvent the wheel. It also raises doubts as to whether public expression and social norm-projection (sometimes said to be the aims of such damages) can legitimately be said to constitute purposes (as opposed to merely effects) of private law.

Keywords: Vindication, vindicate, vindicatory damages, rights, tort law, false imprisonment, Lumba