Tribe, John (2012) Punishment and insolvency: a historical overview - should modern policy take a more punitive approach to debtor misconduct? In: Insolvency Lawyers' Association (ILA) Annual Dinner 2012: Pre-Dinner Lecture; 14 Nov 2012, London, U.K.. (Unpublished)

Abstract

This paper examines punishment of debtors from an historical and modern perspective. Part A contains an historical exposition of three punishments, namely, imprisonment for debt, pillorying and ear loss, and death by hanging. Part B focuses on modern approaches to debtor punishment by focusing on Bankruptcy Restrictions Orders (BROs). The disqualification of bankrupt peers from sitting in the legislature is taken as an example of BRO use thus highlighting recent liberalising policy changes to the bankruptcy jurisdiction. This discussion of various debtor punishment treatments provides a prism through which differing approaches and perceptions of the nature and function of the bankruptcy jurisdiction can be viewed. As part of this examination we can question what our bankruptcy laws are for and what we are trying to achieve with them. This paper concludes that punishment as an objective of modern bankruptcy law and policy has been greatly diminished in recent years to such an extent that respect and adherence to credit obligations is suffering. A lack of funding seems to be the driver of this lack of punishment enforcement. A return to more punitive, or at least properly funded, approaches to debtor misconduct punishment is advocated.

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