Tortious discipline

Abstract

Tort law interrelates and overlaps with disciplinary power in complex ways that remain under-theorised. Borrowing from Foucault’s notion of disciplinary power, this article contributes to the theorisation of law and discipline and upholds tort law exemplifying that interrelation. Disciplinary power helps explain that the process of invoking rights forms productive and useful bodies for society, which has normalising effects throughout society. This argument is made by reviewing State of New South Wales v Talovic. There, Mr Talovic sued New South Wales in vicarious liability for police officers false imprisonment and trespass stemming from their allegedly wrongful apprehension of him under the Mental Health Act 2007 (NSW). Through a re-reading of this case, the author calls for a renewed critical focus on the interrelation of law and discipline.