Punitive disentitlement within private law?

Liau, Tim ORCID: 0000-0003-1243-970X (2025) Punitive disentitlement within private law? Oxford Journal of Legal Studies. ISSN 0143-6503

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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.

Item Type:	Article
Additional Information:	© 2025 The Author(s)
Divisions:	Law
Subjects:	K Law
Date Deposited:	19 Feb 2025 11:51
Last Modified:	28 Mar 2025 10:00
URI:	http://eprints.lse.ac.uk/id/eprint/127376

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