Punitive Disentitlement Within Private Law?

Timothy Liau

Oxford Journal of Legal Studies, 2025, vol. 45, issue 2, 358-386

Abstract: Does private law punish? Should it? I question whether private law punishes in a form other than through a court order of punitive damages, by exploring a less obvious form of punishment to which less attention has been paid—‘punitive disentitlement’—wherein a person is disentitled from a legal right, defence, or other legal advantage they would and should otherwise be entitled to, because of their misconduct. Potential instances are identified and analysed in a broad survey of private law doctrine, including the laws of property, contract, unjust enrichment and torts. The strongest reason for punitive disentitlement is its immunity to a powerful normative objection to punitive damages. Punitive disentitlement is not free from difficulties, however. It inherits some of the difficulties associated with punitive damages; it also runs into a separate set of objections. We should therefore be more alert to, and cautious about, its continued use.

Keywords: punishment; private law; disentitlement; remedies; culpability (search for similar items in EconPapers)
Date: 2025
References: Add references at CitEc
Citations:

Downloads: (external link)
http://hdl.handle.net/10.1093/ojls/gqaf004 (application/pdf)
Access to full text is restricted to subscribers.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:oup:oxjlsj:v:45:y:2025:i:2:p:358-386.

Access Statistics for this article

Oxford Journal of Legal Studies is currently edited by Liz Fisher, Stefan Enchelmaier, Andreas Televantos, Liora Lazarus and Jennifer Payne

More articles in Oxford Journal of Legal Studies from Oxford University Press
Bibliographic data for series maintained by Oxford University Press ().