Tort and Public Law: Overlapping Categories?


Tort and Public Law: Overlapping Categories?

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This paper is an exploration of the relationship between tort law and public law as legal categories. The principal argument of the paper is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. The three most prominent examples are the torts of misfeasance in public office and malicious prosecution, and the award of exemplary damages in cases of oppressive, arbitrary or unconstitutional action by servants of the government. In these instances, public law employs private law mechanisms to achieve its own particular aims, such as sanctioning and redressing the abuse of public power. Attempts have been made to explain these causes of action in purely private law terms, as protective of a distinctive private right, for example, or as imposing liability for ‘abuse of right’. However, these attempts to locate the doctrines in private law are unpersuasive. They are better understood as distinctively public law doctrines, the existence of which demonstrates that there is no clear boundary between ‘tort law’ and ‘public law’, but rather a degree of overlap between the two categories. There are lessons here for both private lawyers and public lawyers. The lesson for private lawyers is that attempts to reconcile these doctrines with general private law principles are misguided. The lesson for public lawyers is that closer examination of these doctrines may further understanding of the nature and purposes of public law.


  • Professor Donal Nolan
    Professor Donal Nolan, University of Oxford