{"title":"Punitive Disentitlement Within Private Law?","authors":"Timothy Liau","doi":"10.1093/ojls/gqaf004","DOIUrl":null,"url":null,"abstract":"<p><p>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.</p>","PeriodicalId":47225,"journal":{"name":"Oxford Journal of Legal Studies","volume":"45 2","pages":"358-386"},"PeriodicalIF":1.4000,"publicationDate":"2025-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC12163109/pdf/","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Oxford Journal of Legal Studies","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1093/ojls/gqaf004","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"2025/1/1 0:00:00","PubModel":"eCollection","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0
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.
期刊介绍：
The Oxford Journal of Legal Studies is published on behalf of the Faculty of Law in the University of Oxford. It is designed to encourage interest in all matters relating to law, with an emphasis on matters of theory and on broad issues arising from the relationship of law to other disciplines. No topic of legal interest is excluded from consideration. In addition to traditional questions of legal interest, the following are all within the purview of the journal: comparative and international law, the law of the European Community, legal history and philosophy, and interdisciplinary material in areas of relevance.
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