Private Law and Grave Historical Unjustice: The Role of the Common Law

41 Monash University Law Review 377-413, 2015

37 Pages Posted: 16 Mar 2020

See all articles by Simone Degeling

Simone Degeling

University of New South Wales, Australia - Faculty of Law

Kit Barker

University of Queensland - TC Beirne School of Law

Date Written: 2015

Abstract

This article reclaims an important role for the common law in cases of grave historical injustice, which we define as serious, widespread instances of wrongdoing that have remained unaddressed and un-redressed for long periods of time. Contemporary examples in Australia include the abuse of vulnerable individuals within the Catholic Church and Australian Defence Force, and the historical theft of wages from Aboriginal peoples.

Contemporary discourse assumes that private law has little to contribute to the debate about how to deal with such cases. It focuses instead on public apologies and limited reparations schemes, on the basis that these offer victims quicker, more satisfactory solutions. We suggest an important role for private law and its corrective justice framework in informing and enhancing the design of reparations schemes current and future, so as to accord victims a fuller and more meaningful measure of justice.

Keywords: Private Law, Remedies Corrective Justice, Reparation, Compensation, Restitution, Grave Historical Injustice

Suggested Citation

Degeling, Simone and Barker, Kit, Private Law and Grave Historical Unjustice: The Role of the Common Law (2015). 41 Monash University Law Review 377-413, 2015, Available at SSRN: https://ssrn.com/abstract=3539277

Simone Degeling (Contact Author)

University of New South Wales, Australia - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Kit Barker

University of Queensland - TC Beirne School of Law ( email )

4072 Brisbane, Queensland
Australia

HOME PAGE: http://www.law.uq.edu.au/

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