By the end of Friday, Illan Wall of this parish and I will be half-way through our ESRC seminar series ‘The Public Life of Private Law’. The programme for our second seminar is here. The focus of the second seminar will be on the uses of private law in seeking reparations for ‘human rights abuses’. In setting this theme we had in mind a variety of legal scenarios. To name three, we are interested in:
- the use of negligence to hold the state to account for the actions of its soldiers; Bici v. Minister for Defence and Al-Jedda , and to obtain remedies for personal injuries suffered by the employees of British companies abroad; Lubbe and Others v. Cape and Guerrerrao v. Monterrico.
- the use of negligence to obtain remedies for past injustices, such as the torture and mistreatment of Mau Mau detainees by colonial powers; Mutua v. Foreign Office and the sexual abuse of children by members of religious orders; JGE v Portsmouth RC Diocesan Church.
- the ‘human rights impact’ of ‘contracting out’ public services such as secure children’s homes; London Secure Services v. Youth Justice Board and residential care for the elderly;YL v. Birmingham CC.
The challenge is to bring discussion of these issues together with the (overlapping and intersecting) broader theoretical and conceptual questions which we identified during our first seminar. Readers are of course very welcome to engage with these questions in the comments.
The Risks Of Using Private Law
- How can we ‘think’ strategically entering into private law, to use it for political ends? (Think of how, as Davina Cooper reminded us, public bodies have, in the past, used private law to advance radical political agendas). Do we always rub up against problems of juridification: what is the position of law in political struggle, and what are the political risks of insisting on law’s importance to life?
- Are we trying to ‘hollow out’ spaces for political action? Are we sometimes trying to drive the operations of private law to their absolute conclusion? Can acts of over-identification with private law collapse it into itself or transform it into something more useful? Consider Adam Gearey’s presentation on the pension trust.
- What problems of co-option and reversability does private law present for political struggle? Must you always cede more than you can gain by engaging with it? To what extent does engaging with private law mean that you lose the grounds on which you struggle? Can even creative engagements with private law (see Anne Barron’s discussion of CopyLeft) be brought back within capitalist relations? Is there anything which guarantees private law for the Left?
- Does the ‘private form’ close down ‘public’ ideas? Does private law inevitably mean a removal of political practices from the space of public oversight? See Kristen Rundle’s discussion of the Jimmy Mubenga and the ‘contracting out state’.
- What – in a normative sense - are we trying to recover when we talk about reintroducting the ‘public’? What if the ‘public’ itself is tainted with or corrupted by some of what – individualism, commercialism, irresponsibility - we associate with the failings of the ‘private’? (See Emilios Christodoulidis’ presentation)?
- What do we assume about the separation of, or distinction between the ‘public’ and ‘private’ of private law when we speak of ‘reintroduction’? Contrast the notions of ‘public’ at work in Alan’s, Emilios’ and Adam’s presentations. How can we reconcile our interests in these terms with the long tradition of critique of the public/private divide?
- Who is the subject of these political private law claims? Who bears the burden of bringing the political to private law? How do we understand the individual citizen who uses private law for the political? This looks to be a significant theme ripe to emerge from our second seminar.
What do we want from private law?
- What is lost, by contrast, where there is a failure to juridify or a withdrawal of law; where spaces or actions go apparently without law? What values do we tie to the ‘reintroduction’ of law? ‘Publicness’? ‘Oversight’? ‘Rights’? How do we think about contexts in which private law facilitates a withdrawal of law (as in privatisation through contract) and ‘blocks’ further penetration? (See See Kristen Rundle’s presentation)How do we ‘unblock’?
- What aspects of ‘the legal’ do we insist on keeping to the fore, particularly when we follow private law into spaces of privatisation and social dumping? Do we, in these contexts, associate law with the ethical, or the relational? (See Alan Norrie’s presentation). Do private law notions of obligation, duty and responsibility help or hinder us here? How does it feel to be obligated, and how does law conceive of these obligations?
- To what extent does a desire to use law reflect a certain demand for solidarity or identification with community, or with shared normative position? (See Emilios Christodoulidis’ presentation). To what extent does private law entail exactly the opposite; a claim to break out of the public and its demands? (See Matthew Stone’s presentation).
Bringing Private Law Concepts Into New Spaces
- If we want to appeal to private law, to what extent are we free to preserve or re-orient some of its desirable concepts (see Davina Cooper and Sarah Keenan’s work on rethinking property and read it agains Matthew Stone’s)? And if we can ‘play with’ private law’s concepts, as Cooper and Keenan do, to what extent can we bring them beyond their traditional domains and redeploy them as analytical tools in examining unexpected or new forms of political contest. What will they look like when we bring them ‘back’?
We very much welcome PhD students, academics (in all disciplines), teachers of private law andpractitioners and activists working in relevant areas to get in touch with us at m.enright[at]kent.ac.uk or i.r.wall[at]warwick.ac.uk and/or to express interest in participating in the later seminars in the series (details at www.publicprivatelaw.co.uk).
To receive updates on the seminar series, you can follow us on twitter @pubprivlaw and on facebook here.