Policy-makers of all stripes aim to defuse political conflict by appeals to law. When it was reported that shari’a councils grant religious divorces to Muslim couples in Britain, many commentators purportedly concerned to protect women’s rights and preserve social cohesion called for new criminal legislation outlawing the councils. The summer’s social disturbances in Britain’s cities generated highly public demands for punishment of the ‘rioters’ in the criminal courts. Opponents of the anti-austerity occupations which have taken place in cities worldwide call for more forceful policing of expression and assembly in the interests of public order. Survivors of past human rights abuse demand public acknowledgment of the wrongs done to them and punishment of the wrongdoers. The resort in each instance is to public law; sometimes criminal law, sometimes human rights law. This indicates a failure of public legal imagination. We often forget that private law plays a powerful role in regulating social conflict. This is especially true of the law of obligations, which comprises contract and tort (the law of civil wrongs). Divorcing Muslim couples may use contract law to depart from the provisions of family law. Many of the summer’s ‘rioters’ and their families found themselves in breach of ‘contracts’ increasingly used by local authorities and landlords to regulate tenants’ behaviour. The tort of trespass sets the permissible boundaries to occupation as a form of political protest, and by extension to freedom of expression and assembly. Victims of past institutional human rights abuse have attempted to use the tortious concept of ‘duty of care’, and the tort of trespass to the person to hold their abusers accountable. Thus, although private law often slips under the radar of public consciousness, its role in channelling important political conflicts should not be under-estimated. Private law, as much as public law, puts us in our place as citizens.
Our series of four seminars will explore the role of private law in shaping political struggle. This is what we mean by ‘the public life of private law’. We are interested in mapping the ways in which engagement with private law might by turns enhance and restrict political engagement between opposing groups and between the citizen and the state. Many critical legal and political scholars worry that our politics are hollowed out by over-reliance on litigation and regulation to fulfil political aims. A number of questions flow from this position. Is the difficulty amplified when the law at issue is private law; more readily associated with economic imperatives than with rights claims? Is a resort to private law inevitably a depoliticizing move, or does private law open up novel means of political struggle? Does the formal, technical nature of private law generate peculiar strategic advantages for political actors? Does private law inevitably bolster existing disparities in political power, or does it contain means by which imbalances can be addressed? Are contract and tort cases ever as significant for politics as civil rights litigation, or does private illegality inevitably lack political cachet?
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