Oxford Private Law Theory publishes leading work in private law theory. It commissions and solicits monographs and edited collections in general private law theory as well as specific fields, including the theoretical analysis of tort law, property law, contract law, fiduciary law, trust law, remedies and restitution, and the law of equity. The series is open to diverse theoretical approaches, including those informed by philosophy, economics, history, and political theory. Oxford Private Law Theory sets the standard for rigorous and original work in private law theory.
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Lisa Austin, University of Toronto
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John Goldberg, Harvard University
Matthew Harding, University of Melbourne
Irit Samet-Porat, King’s College London
Seana Shiffrin, University of California, Los Angeles
Rights, Wrongs, and Injustices
The Structure of Remedial Law
STEPHEN A. SMITH
3
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This book’s origins lie in two puzzles. The first is pedagogical. In 2008, I agreed to teach a course on ‘Private Law Remedies’ for the first time. In anticipation, I assembled a list of materials based on topics typically discussed in such courses. When it became time to prepare lectures, I adopted my usual approach of trying to find a common thread—an overarching principle, concept, or question—to tie the materials together. I had no success. As a result, my initial view was that courses on remedies, as conventionally understood, were a hodgepodge of miscellaneous topics. The two groups of rules that were universally assumed to be the subject’s core—those governing specific relief (e.g. specific performance, injunctions) and those governing damages awards—seemed to me to be radically different. The former appeared to be concerned exclusively with the availability of certain kinds of judicial rulings, while the latter appeared to be concerned exclusively with the substantive question of how much wrongdoers should pay their victims. From this perspective, the rules governing damages awards seemed similar to those that determine the content of substantive duties, such as the rules that establish the content of a contractual duty or a duty not to commit a nuisance.
In short, it seemed to me that, unlike the rules governing specific relief, the rules on damages awards were part of the ‘substantive law’: they established how individuals should treat each other in their day-to-day lives, and, in particular, what individuals should do after they breach a contract or commit a tort. Admittedly, both sets of rules could be described as broadly ‘remedial’. However, they appeared to be remedial in entirely different senses: the rules governing specific relief determine when courts will assist claimants’ efforts to ensure that defendants perform their substantive duties; by contrast, the rules governing damages awards determine what wrongdoers should do for their victims. Given my membership in a faculty that teaches both common law and civil law, it was difficult not to notice that civilian codes distinguish specific relief and damages awards in exactly this way.
The first puzzle, then, was why books and courses on remedies existed at all. The literature on remedies provided little help with this puzzle. Indeed, this literature rarely addressed or even acknowledged the puzzle. Textbooks on remedies simply did not raise the possibility that significant parts of their subject matter were comprised of substantive law rules. In particular, discussions of damages awards rarely made clear whether the rules under examination were rules for how citizens should act or rules for what courts should do—or whether the answer made a difference. Authors regularly referred to ‘liabilities’ to pay damages, but it was almost never made clear whether the liability in question was a liability to fall under a
substantive duty to pay damages, or a liability to being ordered by a court to pay damages. The same observations apply to restitutionary orders, also discussed by most remedies textbooks.
As noted, my initial view was that there was no solution to the pedagogic puzzle: the subject matter of courses and books on remedies, as conventionally understood, seemed comprised of radically different rules. At the same time, reflection on these differences (and on Rafael Zakrzewski’s groundbreaking book, Remedies Reclassified) led me to think that it might be possible to develop a coherent course on remedies by focusing on the rules governing specific relief. These rules seemed to me to be different from those that are the focus of substantive private law courses. Rather than telling individuals how to behave in day-to-day life, they direct courts to provide particular rulings in particular situations. Of course, all legal rules may be applied by courts. However, courts do not merely apply the rules governing specific relief; these rules tell courts how they should act. In particular, they tell courts what they should do when individuals come to them seeking their assistance. For example, they tell courts that they should not grant specific performance if the order would require the defendant to perform a personal service. To be sure, these rules also grant citizens legal powers to obtain remedies. Still, the duties that arise from the exercise of these powers are imposed on courts. The powers that such rules set out are held against the state; they provide individuals with powers to obtain rulings from the state. By contrast, the substantive rules of contract and tort law are fundamentally rules for citizens: they tell citizens how they should behave towards one another (‘perform contracts’, ‘do not trespass’, ‘do not take others’ property’, and so on), and what they must do if they wish to change their legal relations with others (e.g. what they must do to make a contract).
As I prepared to teach my course, this distinction seemed important. It still does today. The question of what courts should do when citizens seek their assistance is different from the question of how citizens ought to treat one another. The former raises distinctive issues about, for example, the allocation of state resources, the administration of litigation, and the nature of judicial rulings. Most importantly, the question of how courts should respond to requests for relief raises distinctive issues of justice. Stealing, injuring, lying, and breaking promises are bad things to do, but they do not raise issues of justice: it is wrong to hit others, but we do not normally describe such actions as unjust (aside from special cases where the victim was unfairly selected from a group of potential victims). For the most part, issues of justice arise within private law when courts get involved—and the most direct way that courts get involved is by issuing rulings. It is unjust—not merely wrong—for a court improperly to refuse a plaintiff’s request for specific relief. It is to the courts (and the ‘justices’) that citizens go when they seek justice, and getting justice in this context means getting the right ruling. For these reasons, it seemed that there was something distinctive—something that merited special treatment—about at least some of the rules that I was teaching in my remedies course. However, my initial
view was that only a small portion of these rules—primarily those governing specific relief—fell into this category.
The second puzzle is philosophical. When I began teaching remedies, I was also teaching general jurisprudence. Unsurprisingly, I was curious as to what was said about judicial rulings in the jurisprudential literature. What I found was largely silence. This was not what I expected: after all, legal scholars, and especially scholars in common law jurisdictions, have long expressed a special interest in ‘what courts do’. This interest is reflected in the common practice of beginning contract law courses by studying the rulings available to disappointed contracting parties. Some writers have gone so far as to argue that the law generally is nothing more than what courts do. However, it was apparent that this interest in rulings focused primarily on their availability and content (When is specific performance available? How are damages awards assessed? Is restitution available in kind or only in money?), or on the consequence of failing to comply with a ruling—that is, on sanctions. The concept of a ruling itself received little attention. In particular, there was nothing comparable to the extensive theoretical literature on rules and sanctions (the other main tools by which law attempts to impose itself on citizens). Indeed, it appeared that most writers assume that a ruling is either a mini-rule or a disguised sanction. Neither assumption seemed plausible. If rulings were mini-rules they would be, like regular rules, in the form of declarations of the defendant’s legal duty (‘the defendant has a duty to do X’). The vast majority of rulings are imperative, not declaratory: they command defendants to do or not do something. So too, if rulings were vehicles for imposing sanctions they would be in the form of instructions to officials. Some rulings are in this form, but, as just noted, most private law rulings simply instruct defendants to do or not to do something: in private law, legal officials impose sanctions only when rulings are unfulfilled.
The second puzzle, then, poses the question: why do courts issue rulings, and in particular why do courts issue rulings that require defendants to do or not do something. The answer was not obvious. Why bother telling defendants to do things (‘pay the claimant £100’) when the law has, or could have, substantive rules that appear to say the same thing (‘everyone has a duty to pay their contractual debts’) and sanctions that it can apply when the rules are not followed (e.g. seizing the defendant’s property to pay the debt). Reflection on this puzzle led me to believe that we lack a satisfactory account of the nature and role of legal rulings; indeed, we seem unaware of the need for such an account. Further, as I thought about the ways that rulings differ from rules and sanctions, I concluded that understanding these differences is critical to understanding why courts make the particular rulings that they make. In short, the two projects—understanding private law remedies and understanding rulings—came together.
This book is the outcome of that merger. Its legal subject matter is the law governing judicial rulings, in particular, the law governing rulings that, as part of the resolution of private litigation, require defendants to do or not do something. To
avoid making a long book even longer, I focus on awards arising out of disputes dealing with contracts, torts, and unjust enrichments. Thus, I examine injunctions, specific performance orders, damages orders, (some) restitutionary orders, orders for a sum due (debt), and orders for the recovery of land and other property. I do not discuss awards that, historically, were issued by the Chancery in its exclusive jurisdiction, such as awards for breach of trust or breach of fiduciary duties.
Although this book discusses a broad range of remedial rules, sometimes in detail, it is not a treatise on private law rulings. Rather, it is fundamentally an extended argument for taking its subject matter seriously. The argument has two prongs. The first is a response to the jurisprudential puzzle. The position I defend here is that rulings, or at least the ‘directive’ rulings that are my focus, are distinct from both rules and sanctions. Their distinctiveness lies not only in their form, but, critically, in the kind of authority they invoke to motivate their addressees. In contrast to rules and sanctions, directive rulings invoke the state’s authority to command obedience. I further argue that this difference explains not only why courts issue orders, but also why, in certain cases, the law uses orders rather than rules to impose duties.
The second prong is a response to the pedagogical puzzle. Developing this response occupies most of the book, and illustrates what I have come to see as the considerable breadth of remedial law. Alongside the rules governing specific relief, I argue that the rules governing awards for a sum due and orders for the recovery of land or other property belong in remedial law. I offer a similar argument in respect of most of the law dealing with limitation periods, illegality, abuse of process, immunity, and a variety of other private law defences (and I provide a framework to explain how these and other remedial rules are related). Finally, but most importantly, I argue that most of the rules governing not only the availability but also the quantum of damages and restitution (narrowly defined) are part of remedial law. In other words, I defend a view that I had once thought heretical—namely, that there is no duty to pay damages or make restitution prior to being ordered by a court to do so.
As I hope is clear by now, I reject the idea that rights and remedies are just different sides of the same coin. To be sure, remedies frequently replicate existing duties. Specific performance orders, orders for a sum due, and most injunctions and orders for the recovery of land or other property are ‘replicative’ orders: they direct defendants to do things that they already had substantive legal duties to do. But other remedies create new duties. In some cases, these ‘creative’ remedies merely direct defendants to perform close monetary substitutes of replicative remedies (‘substitutionary’ remedies). However, in other cases, they create entirely new duties: most damages awards and the core instances of restitutionary awards are creative in this broader sense. Finally, in some cases courts refuse to issue a remedy at all, even where the defendant refuses to comply with a substantive duty owed to the claimant.
A large part of this book is devoted to demonstrating the importance of differentiating the grounds on which courts award different remedies. Replicative remedies are awarded because the relevant right is under threat from the defendant. In contrast, creative remedies typically are responses either to the infringement of a substantive right (as in the case of most non-compensatory damages awards) or to an injustice (as in the case of compensatory damages and a core group of restitutionary awards). In short, I argue that the common law recognizes three main private law ‘causes of action’: proof of a rights-threat, proof of a wrong, and proof of an injustice. Remedies are thus remedies either for rights-threats, for wrongs, or for injustices.
The idea that rulings are distinct from rules and sanctions, together with the idea that remedies are distinct from substantive rights, support this book’s general theme that remedial law is distinctive and important. Further support for this theme takes the form of my inclusion of a topic that is not mentioned in most textbooks on remedies: the general part of remedial law. If there is such a thing as ‘the law of remedies’, some of this law must presumably be about remedies in general. Why discuss specific performance, damages, and so on in the same book unless they have something legally in common? Yet traditional remedies textbooks, which are organized exclusively around specific categories of remedies (e.g. ‘rules about specific performance’, ‘rules about damages’, and so forth), suggest that the various remedies have nothing in common. I try to rectify this omission. Two of this book’s chapters are devoted to general remedial law rules and principles (Chapter 3 on ‘Creation, Form, and Legal Effects’ and Chapter 9 on ‘Defences’).
This book’s title is slightly misleading. Although it focuses on remedial law’s structure, this book is also concerned with the structure of the broader private law, or at least with the place of remedial law in that structure. Many of this book’s arguments are about the place of rulings—and the law governing rulings—in private law’s structure. I defend this approach in Chapter 1. Here, I merely note that, like most classificatory arguments in law, this book’s classificatory arguments are closely connected to normative arguments. My argument for classifying the rules governing damages awards and restitutionary awards as remedial rests to a significant degree on arguments about why wrongdoers should pay damages and why individuals who have been unjustly enriched should make restitution. Similarly, my explanation of the reasons that the law gives us to comply with rulings rests on arguments about the nature of authority and legal obligation. These arguments raise fundamental questions about the nature of private law and, at times, about the nature of law generally. I hope that readers find my answers to these questions persuasive. However, even if they do not, I hope that they come to share my view that the questions are important. Fundamentally, this book is a plea for a subject: it is a plea to ask serious questions about what courts are doing when they issue rulings.
Acknowledgements
The intellectual debts that I incurred while writing this book are reflected in its themes and approaches. To the jurisprudential community in England, and particularly the community in Oxford—where I did graduate work and began my teaching career—I owe a debt for encouraging me to think seriously about the concept of a ruling, in particular the concept of an order. Although English theorists have written little about rulings directly, their work on the nature of rules and sanctions provided both inspiration for my study of rulings and the broader intellectual backdrop against which I pursued that study.
To the community of private law scholars in England, Canada, and the broader Commonwealth, I owe two debts. The first is for inspiring me to take private law seriously on its own terms. Throughout this book, I argue that we need to take seriously the language in which the law presents itself. In particular, we need to pay attention to the differences between orders and rules, duties and liabilities, and commands and declarations. Although I suggest that scholars have paid insufficient attention to some of these differences, the tradition of taking seriously the way in which the law presents itself is well established in the Commonwealth’s private law literature. The second debt is for inspiring me to explore the philosophical commitments underlying the law’s surface expression. An explanation of the law must account for the distinctive ways in which the law explains itself. For example, the law presents legal duties as genuine duties. Thus, to determine whether particular rules—for example, the rules governing the quantification of damages awards—are meant to impose duties on citizens, it is important to ask whether these rules could plausibly be thought to articulate genuine obligations. In exploring such questions, I have drawn inspiration and enlightenment from writers throughout the Commonwealth, and in particular from members of the remarkable community of Canadian private law theorists.
Finally, I owe an enormous debt to the Faculty of Law at McGill University. This book focuses on the common law, but it has been deeply influenced by the fact that I belong to a law faculty that teaches, in an integrated fashion, both the common law and the civil law. The idea that private law rulings may go beyond confirming substantive rights, for example by transforming such rights or even by creating entirely new rights, stands in opposition to a long tradition in civilian thinking. However, I hope that civilian scholars will recognize my concern for distinguishing between different kinds of rights. Further, I have attempted to develop, in civilian fashion, a ‘general law’ of rulings from what has traditionally been presented as heterogeneous groups of unrelated rules. My reflection on the clear and relatively
simple civilian approach to the questions addressed in this book has also helped me appreciate the distinctive ways in which the common law deals with such questions. For example, my attempt to understand why this book’s subject matter is not a significant legal topic for civilians, if indeed it is a topic at all, has helped me enormously in understanding why remedies play such a large role in how common law lawyers think about the law. Finally, while this book is not a work in legal history, its arguments are strongly influenced by my appreciation of the common law’s distinctive roots and evolution, something that again may be traced to McGill. Perhaps the first lesson that I learned from teaching in an integrated programme is that legal systems cannot be understood without understanding the legal traditions in which they are situated.
Beyond the general debts just described, I have incurred a number of specific debts over the long period of writing this book. The Killam Foundation funded a Fellowship that gave me precious time, early in this book’s genesis, to develop the ideas that eventually formed its core. The second debt is to my students at McGill, particularly those in my remedies and jurisprudence classes, with whom I first explored many of the book’s themes and, more recently, early drafts. The third debt is owed to the research assistants (as they then were) who have worked with me during this book’s long gestation, whether on the book itself or on essays that developed its arguments: Alexander Barroca, Karine Bedard, Andrew Brighton, Vanessa di Feo, Lisa Greenspoon, Aly Haji, Elena Kennedy, Jennifer Klinck, Nicola Langille, Jacqueline Madden, Zain Naqi, Tara Mrejen, Brodie Noga, John-Andrew Petrakis, and Leonid Sirota.
My final debt is to the many colleagues in Canada and abroad with whom I have discussed, in most cases over many years, my ideas about remedies. Special thanks (and apologies to anyone I have omitted) go to Allan Beever, Peter Benson, Ziv Bohrer, Alan Brudner, Hanoch Dagan, Helge Dedek, John Goldberg, Christopher Essert, Timothy Endicott, Andrew Gold, Scott Hershowitz, Daniel Jutras, Larissa Katz, Dennis Klimchuk, Rosalie Jukier, Adam Kramer, Robert Leckey, Ben McFarlane, Paul Miller, Jason Neyers, James Penner, Denise Reaume, Charles Rickett, Arthur Ripstein, Ruth Sefton-Green, Henry Smith, Zoe Sinel, Robert Stevens, Shauna Van Praagh, Stephen Watterson, Ernie Weinrib, and Benjamin Zipursky. I particularly want to thank three colleagues, each of whom spent countless hours discussing remedies with me, saved me from many errors, and, perhaps most importantly, inspired and encouraged me to finish the book: Evan FoxDecent, Nicholas McBride, and Lionel Smith. I also benefitted greatly, in the final push to complete the book, by a workshop devoted to the draft manuscript, held in Toronto in January of 2019, and organized by Chris Essert and Lionel Smith. The workshop reminded me (though the reminder was hardly necessary) of two things: how many of my colleagues are not convinced by all of my arguments and, more importantly, how fortunate I am that the profession of law professor is one in which deep disagreement can sit happily alongside deep friendship.
1
Introduction
The law imposes itself upon its subjects in three principal ways. First, lawmakers announce substantive rules: rules that stipulate general legal duties (‘Everyone has a duty to perform their contractual promises’) or that tell individuals what they must do to create or modify such duties (‘A contract is created by an offer, acceptance, and consideration’). Second, courts issue rulings: they order individuals to do or not do specific things (‘It is ordered that the defendant pay the claimant £100’) or grant them specific powers or immunities (‘Title to Blackacre is hereby vested in the claimant’). Third, legal officials impose sanctions: examples include imprisonment and the seizure of property.
Legal scholars have analysed the first and third of these ways—announcing rules and imposing sanctions—extensively. However, the second way—issuing rulings— has received little attention. This book seeks to remedy this neglect. Focusing on rulings that direct defendants in private litigation to do or not do something (‘directive rulings’ or ‘orders’)—for example, an order to pay a debt or damages, cease a trespass, or perform a contract1 I argue that orders are distinctive legal events, governed by distinctive legal principles. I further argue that appreciating this distinctiveness is critical not just for understanding why courts make orders, but also for understanding the broader private law. In short, this book is a sustained plea for taking the concept of a private law order—a ‘remedy’—more seriously.
A. Four Questions
The suggestion that legal scholars have ignored remedies might be surprising. In the common law jurisdictions that are this book’s focus, legal education and scholarship often seem preoccupied with rulings. Contract law courses frequently begin by examining the remedies available to disappointed contracting parties. There are entire common law treatises devoted to particular remedies, such as injunctions or damages, and even to subcategories of remedies, for example damages for personal
1 In England today, each of these rulings is styled explicitly as an order (‘It is ordered that the defendant pay the claimant £ . . . ’). But formerly, and still today in many common law jurisdictions, some of the orders discussed in this book were styled as ‘Judgments’ of legally required states of affairs (e.g. ‘It is adjudged that the claimant recover from the defendant £ . . . ’). I discuss this terminology below and in Chapters 2 and 3. Briefly, I argue that my explanations of orders also apply, with small qualifications, to Judgments. To avoid constant qualifications, I describe rulings as orders if courts express them as such in England today.
injury. More generally, there is a long tradition in the common law of thinking about private law in terms of judicial remedies. As I explain in Chapter 2, for most of the common law’s history, private law was largely remedial law, broadly understood: private law consisted primarily of rules about judicial rulings. Learning the law meant learning how to get into court, how to plead in court, and what rulings a court might provide. The gradual recognition of rules governing how citizens should treat one another in ordinary life (‘substantive law’) occurred primarily through a process by which judges, lawyers, and scholars reasoned backwards from the rules governing rulings.2 Common law lawyers described chattel property as ‘personal’ property because, unlike in the case of land (‘real’ property), courts rarely ordered defendants who had taken the claimant’s property to return it.3 The same process continues today: when common law lawyers seek proof that the law recognizes a particular substantive duty, they typically point to rulings that allegedly give effect to the duty. One reason lawyers widely assume that there is a legal duty to return mistaken payments is that courts are willing to order mistaken payees to reimburse these payments. Perhaps the most famous example of this way of thinking is Oliver Wendell Holmes’ suggestion that we should define the law generally in remedial terms: ‘Prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.’4
Notwithstanding this preoccupation, common law scholarship has neglected the concept of a remedy itself. Specifically, four questions have received little attention.
i. What is a Remedy?
First, what is a remedy (and, relatedly, what is the subject matter of remedial law)? Some remedies textbooks do not address this question at all.5 Others appear to adopt the everyday understanding of remedy according to which it is a cure for a problem of some kind or another.6 This definition is impossibly broad (and textbooks never apply it seriously). Almost every legal phenomenon can be described as a cure for a problem of one kind or another. Law in general is a cure for the problems that arise in a world without law. With one notable exception, no textbook
2 ‘[T]he common law (though there is no harder lesson for the stranger jurist to learn) began with the remedy and ended with the right’: Nocton v Lord Ashburton [1914] AC 932, 964 (Lord Dunedin).
3 Baker (2002) 380; Maitland (1909) 60–6. As remains the practice today (see Chapter 6), courts normally gave the defendant the option of paying the claimant a sum of money.
4 Holmes (1897) 457. A judicial example of the confusion that may arise from conflating substantive and remedial law is Saville LJ’s statement in Law Debenture Trust Corporation v Ural Caspian Oil Corporation Ltd [1995] Ch 152, 173 that ‘An injunction is a discretionary remedy . . . [therefore] the right asserted by the plaintiff only arises when the court makes the order in question.’
5 Spry (2014); Berryman et al. (2016).
6 Andoh & Marsh (1997).
discusses the definitional question in depth.7 It is true that in practice most remedies textbooks cover broadly similar terrain. Most of them focus on the same rules that this book examines. It is also true that definitions of legal fields are always imperfect. The concept of a ‘contract’ is familiar to every lawyer, but its boundaries remain a matter of controversy. Still, without serious reflection on remedial law’s subject matter, it is impossible to know which rules should be discussed in remedies textbooks and, as importantly, what considerations we should be thinking about when we try to explain these rules.
One example suffices. Nearly every book on remedies discusses the rules governing the assessment of damages. Yet it is not obvious that these rules are a part of remedial law. Writers define ‘remedy’ in different ways,8 but the most common usage (and the usage adopted in this book) equates remedies with judicial orders or at least with judicial rulings.9 The law of remedies, in this definition, is comprised of rules about rulings. On one interpretation, the rules governing the assessment of damages satisfy this definition. According to this interpretation, there is no duty to pay damages prior to a judicial order to pay damages: there is merely a liability to being ordered to do so by a court. It follows, in this view, that the rules governing the assessment of damages are directed fundamentally at courts. Their basic role is to tell courts how they should assess damages. As such, they are rules about rulings.
For reasons that I explain in Chapter 7, I share this view. However, many commentators and at least some judges do not. In the best-known judicial pronouncement on this issue, Lord Diplock held that a breach of contract gives rise to a substantive duty to pay damages:
Every failure to perform a primary obligation is a breach of contract. The secondary obligation on the part of the contract breaker to which it gives rise by implication of the common law is to pay monetary compensation to the other party for the loss sustained by him in consequence of the breach.10
Most authors who have addressed this issue hold a similar view about damages generally.11 Yet if wrongdoers have substantive duties to pay damages, then the rules governing the assessment of damages are part of substantive law: they are rules that inform individuals what they should do if they have committed a legal wrong. In this understanding, an order to pay damages is like an order to pay a contractual debt; the order merely rubber-stamps the defendant’s substantive duty to pay a sum of money. From this perspective, the rules on damages are no more a
7 Zakrzewski (2005).
8 Birks identified five meanings: Birks (2000a).
9 See e.g. Zakrzewski (2005); Burrows (2004); Dobbs (2018); Rendleman (2006). Exceptions include Andow & Marsh (1997); Berryman et al. (2016).
10 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 847.
11 See Ripstein (2007); Weinrib (2008); Raz (2004); Gardner (2011).
part of remedial law than are the rules that determine the existence and content of duties to pay contractual debts.
Against this background, we might expect that one of the central questions addressed in remedies textbooks would be whether the rules on damages are part of remedial law. Yet with rare exceptions, this question is not even raised.12 The textbooks appear simply to assume that the law of damages is part of the law of remedies. They often make the same assumption in respect of the law governing restitutionary awards. Although many remedies textbooks discuss restitutionary awards in detail, the predominant view of restitution scholars (though, again, not my view: see Chapter 8) is that restitutionary awards rubber-stamp substantive duties to make restitution.13 If this view is correct, then the rules governing the availability and quantification of restitution are not rules about rulings, and do not belong in remedies textbooks. Again, remedies textbooks almost never discuss this issue.
ii. Why Does the Law Provide Remedies?
The second neglected question is why courts issue directive remedies (‘orders’) at all. Legal scholars have discussed at length the roles of rules and sanctions; indeed, most of the theoretical literature on the nature of law focuses on rules, sanctions, or both.14 In contrast, scholars have written very little about why courts issue orders. To be sure, scholars have discussed in detail why defendants should do the things that particular orders require them to do. For example, there is an extensive literature on the merits of requiring contract breakers to pay damages instead of performing their contractual promises. Yet scholars have said almost nothing about the merits of pursuing either of these requirements through judicial orders.15 Nor is the answer self-evident. Why is the law not content merely with rules that stipulate how citizens should act (which might distinguish, for instance, between binding contractual promises and those for which promisees may substitute a money payment), together with rules providing that sanctions may be imposed on citizens who fail to follow the first set of rules? What do orders add to this picture? Legal systems need mechanisms to resolve disputes about what the substantive law requires in particular cases. However, except in the rare case of declaratory rulings, resolving such disputes is not the primary role of rulings, and it is certainly not the primary role of orders. An order simply commands a particular action.
12 A notable exception is Zakrzewski (2005).
13 See e.g. Birks (2005) 31.
14 See e.g. Austin (1832) (sanctions); Hart (1961) (rules).
15 Hart appeared to assume that rulings were ancillary to rules: Hart (1961) 21.
iii. On What Grounds are Remedies Issued?
Third, on what grounds do courts issue orders? Lawyers are of course familiar with the kinds of evidence that claimants must introduce to obtain particular orders. In common law jurisdictions, law professors often present private law primarily as a set of rules about such evidence. A typical question on a torts or contracts exam asks students to identify the legal actions arising from a hypothetical fact pattern. Students are expected to identify the remedies available to the parties and, crucially, to identify the facts that support those remedies. Yet scholars have made little effort to determine whether the common law’s ‘causes of action’ (the facts that must be proven to obtain a particular remedy) have anything in common and, more broadly, if they reflect any general principles. Scholars sometimes suggest, or at least assume, that orders are always given in response to wrongs. However, this view cannot explain a variety of common orders, most obviously those that courts issue to prevent future rights infringements (‘quia timet’ orders), such as a future trespass or nuisance (see Chapter 6). A second suggestion is that courts issue remedies merely on proof that the defendant owes the claimant a substantive duty. But aside from its practical implausibility (why should courts get involved if the defendant may perform the duty anyway?), this suggestion fails to explain a variety of situations where courts refuse to issue remedies notwithstanding that the defendant clearly owes the claimant a substantive duty. An obvious example is a negative contractual duty, for example a duty not to compete with the claimant. No court will issue a remedy simply on proof that such a duty exists.
Relatedly, the literature on remedies has largely ignored the question of why courts sometimes refuse remedies notwithstanding that the relevant cause of action is satisfied. Defences such as illegality, immunity, the expiry of a limitation period, and the absence of a formality are well known, but the extent to which these defences are largely, if not wholly, part of remedial law has received little attention. Most textbooks on remedies do not discuss defences, let alone consider what makes a remedial defence remedial.
More generally, the common law lacks a theory of the relationship between orders and substantive duties. Most lawyers are familiar with the maxim ‘for every right there must be a remedy’ (ubi jus ibi remedium). But what does it mean?
Assuming for argument’s sake that ‘right’ refers to substantive rights and ‘remedy’ refers to judicial orders, does the maxim mean that all rights are protected by orders and that those orders always command compliance with the right? Or does the maxim merely suggest that for every right an order of some kind is available (with no guarantee that the order replicate the right)? And does it follow from the maxim that private law orders always confirm substantive duties or are at least a response to the existence of such duties? In other words, are ‘free-standing’ orders (orders unconnected to substantive duties) possible? Finally, is the maxim a description or a prescription? And if it is the former, is it meant to state a conceptual
truth, or just an empirical fact? These questions have received little, if any, attention in the literature on remedies.
iv. What Kinds of Remedies are Available?
The fourth and final neglected question focuses on the kinds of orders that courts issue. There is a relatively well-established scheme for classifying private law orders. Nearly every remedies textbook distinguishes between injunctions, specific performance, damages, orders for a sum due, and so on. Sometimes the authors also draw a broader division between historically ‘Equitable’ remedies and historically ‘Legal’ remedies. However, both schemes are silent on the most important question about the content of a judicial order: what is its relationship to the claimant’s substantive rights? Without an answer to this question, it is impossible to know whether the rules governing the order’s content and availability are even a part of remedial law. Yet the literature on remedies almost never asks this question.16 As I noted earlier, the typical discussion of damages awards and restitutionary awards does not even consider whether these awards confirm existing substantive duties or create new duties.
B. Four Answers
i. Remedies are Judicial Rulings
In brief, my answer to the first question (‘what is a remedy’) is that a remedy is a judicial ruling, and a private law remedy is a legal ruling that resolves a private law dispute. The most common private law remedies—and this book’s focus—are remedies that direct defendants to do or not do something (‘directive’ remedies or just ‘orders’). Examples include orders to cease a nuisance and orders to pay damages. Remedial law is the law governing such orders, specifically the law governing their creation, availability, content, and legal effects. This definition roughly fits conventional usage.17 Textbooks on remedies invariably discuss the rules governing the availability of specific relief, and these rules are incontrovertibly rules about rulings. However, the main reason for adopting this definition is that it identifies a distinctive and important legal phenomenon. At the beginning of this chapter, I said that there are three main ways that the law imposes itself on its subjects, namely, by enacting rules, issuing rulings, and imposing sanctions. Each is distinct. Failing to comply with a private law ruling may lead to a sanction, but a private law ruling
16 Exceptions include Birks (2000a); Zakrzewski (2005).
17 See e.g. Burrows (2004); Dobbs & Roberts (2018); Rendleman & Roberts (2011).
itself is just words. A sanction is a physical interference with an individual’s person, property, or liberty. Nor is a private law ruling a rule. Rules, or at least the substantive legal rules that are my present focus, are essentially statements about, and constitutive of, legal duties (‘everyone has a duty to fulfil their contractual promises’), or statements about how individuals may create or alter legal relationships (‘a contract is created by an offer, acceptance, and consideration’). In contrast, directive rulings are fundamentally commands. They command specific individuals to do specific things (‘it is ordered that the defendant pay the claimant £100’).
Of course, the practice of issuing rulings is governed by rules. But these rules are also distinctive. Rules about rulings (‘remedial law’) govern relations between courts and citizens. They provide citizens with powers to obtain rulings and they tell courts what they should do when citizens come to them seeking rulings. For example, the common law contains a remedial rule stating, roughly, that ‘if a claimant establishes that the defendant has failed to pay a contractual debt, then (assuming no defence is available) the court must order the defendant to pay the debt’. In contrast, substantive-law rules govern individuals’ interactions with each other. As the previous paragraph’s examples illustrate, substantive rules tell individuals how they should treat one another in day-to-day life or how they can create or alter legal relationships with others. Like all legal rules, substantive rules may be applied by courts. But, unlike remedial rules, the guidance they provide is intended primarily for individuals.
Understood in this way, remedies are distinctive legal phenomena governed by distinctive rules. Indeed, this understanding suggests that remedial law is, in a sense, a part of public law: remedial law is comprised of rules governing relations between individuals and state officials. Another way of making this point is that the question of what courts should do when citizens seek their assistance (the subject of remedial law) is different from the question of how citizens should treat one another (the subject of substantive law). This difference explains why courts deciding remedial issues often take into account—to mention just one distinctive consideration—the cost, to the state, of issuing rulings. As we will see in Chapter 6, the difference explains, therefore, why courts consider whether their rulings are likely to lead to further litigation and whether, if defendants disobey their rulings, the rulings will be costly to enforce.
Defining remedial law as rules about rulings has far-reaching implications for the subject’s scope. On the one hand, the definition excludes rules that are discussed in many remedies textbooks, such as those governing so-called ‘self-help remedies’ (e.g. recaption of property). Like other parts of substantive law, the rules governing self-help tell individuals what they may or must do in their everyday interactions with others, regardless of whether a court gets involved. On the other hand, the definition encompasses rules that most remedies textbooks ignore. It covers, for example, significant parts of the law governing defences (such as those governing limitation periods, formalities, immunity, statutory non-actionability,
abuse of process, res judicata, and illegality). In most cases, the only effect of these defences is to prevent individuals from bringing actions (leaving their substantive rights intact). Finally, and as I mentioned earlier, this definition raises the possibility that almost none of the law of damages or restitution is remedial law (though this is not my view).
ii. Remedies Provide Distinctive Reasons for Action
The answer to the second question (‘why does the law provide remedies’) is that remedies, or at least the directive remedies that are this book’s focus, provide distinctive reasons for action—reasons different from those provided by rules or by sanctions. In Chapter 5, I argue that duty-imposing rules are fundamentally statements about, and constitutive of, the existence of general duties (‘everyone has a duty to fulfil their contractual promises’). It is impossible to obey or disobey such rules. These rules purport to state a fact (though, in some cases, a fact that they have brought into existence); in my example, that there is a duty to fulfil contractual promises. For the addressees of such a rule, the only question it raises is whether they should accept that what it says is true. Duty-imposing rules therefore rely for their force on what I call ‘declarative authority’—the authority to declare that something is the case (here, that a duty exists).
In contrast, orders say nothing about the existence of legal duties. Orders are simply commands (‘It is ordered that the defendant pay £100 to the claimant’). It is true that the law presumes that orders create duties to perform the acts they require. However, these duties arise indirectly by virtue of a presumed general duty to obey court orders. From a court’s perspective, the reason that a defendant should comply with an order to pay £100 to the claimant is that the defendant has a duty to do whatever the court commands. The question facing the addressee of an order is therefore not whether to accept the order but whether to obey it. When courts issue orders, they rely on what I call ‘directive authority’—the authority to command obedience.
As I explain in Chapter 5, declaratory and directive authority provide different reasons to perform the actions that they contemplate. A defendant who rejects the law’s claim to declaratory authority may accept its claim to directive authority, and vice versa. And even for defendants who accept both claims, a judicial order may provide a new reason to do the thing required by a rule-based substantive duty. When defendants refuse to comply with orders they do not merely reject the law’s view of their duties (as is the case when they reject rule-based duties), they disobey a court. Further, I argue that courts may use judicial orders to motivate defendants to perform actions that are not appropriately the subject matter of substantive rules. If duty-imposing substantive rules are propositions about the existence of duties, then it is appropriate to employ them only where it is reasonable to assume
that individuals have duties to perform the specified action. Some of the actions that courts order defendants to perform fall outside this category. The clearest examples are actions that courts command for the purpose of punishing defendants, but there are other, more common examples (which I discuss in Chapters 7 and 8).
iii. Rights-Threats, Wrongs, and Injustices
Broadly, the answer to the third question (‘on what grounds are remedies available’) is that courts issue remedies when the claimant has established facts demonstrating that the reasons that the substantive law provides, or could provide, to perform the requested action are inadequate or inappropriate. In practice, this principle means that the common law recognizes three main private law causes of action: (1) proof that the defendant is unwilling to comply with the claimant’s substantive rights (a ‘rights-threat’); (2) proof that the defendant wronged the claimant (a ‘wrong’); and (3) proof of an unfair loss or gain (an ‘injustice’). In short, I argue that the common law’s main causes of action—what claimants must prove to obtain a remedy—are rights-threats, wrongs, and injustices.
I defend these categories and explain which remedies each is associated with in Chapters 6 to 8. Briefly, I argue, first, that injunctions, specific performance orders, orders for a sum due, orders for the recovery of land or other property, and a small group of ‘substitutionary’ damages awards are responses to rights-threats. Second, the category of ‘wrong-responding’ orders includes exemplary damages, nominal damages, damages for pain and suffering, and a group of damages awards that I describe compendiously as ‘vindicatory’ (and individually as user damages, waiver damages, market-price damages, gain-based damages, and non-pecuniary damages). Third, and finally, the category of ‘injustice-responding’ orders includes orders to return benefits obtained from a defective transfer (‘restitutionary orders’) and damages for consequential pecuniary losses (‘compensatory damages’). This scheme is novel in several respects, most notably in placing compensatory damages and restitutionary orders in the same category.
iv. Replicative and Creative Remedies
Finally, the answer to the fourth question (‘what kinds of remedies are available’) is complex. Many private law orders replicate substantive duties (‘replicative orders’); examples include specific performance orders, most injunctions, orders for a sum due, and orders for the recovery of land or other property. However, other orders create new duties (‘creative orders’), and they do this in different ways. In some cases, creative orders transform non-monetary substantive duties into closely related monetary duties (‘substitutionary orders’). An example is an order to pay
damages that is awarded in lieu of specific performance and where the reason specific performance is refused is that the relevant duty is to deliver fungible goods. In other cases, creative orders impose new duties on defendants because they have breached substantive duties (‘wrong-responding orders’). This category includes exemplary damages, nominal damages, damages for pain and suffering, and the various vindicatory awards I mentioned in the previous section. And in yet other cases, creative orders impose duties on defendants who may neither owe the claimant a substantive duty, nor have breached such a duty in the past. Examples of the latter include some restitutionary orders and (with certain qualifications) compensatory damages awards. Finally, in some cases courts refuse to issue orders at all notwithstanding that the defendant breached, and perhaps continues to be in breach of, a substantive duty owed to the claimant.
The general lesson to draw from the answer to the fourth question is that the availability of remedies is only partly determined by the duties that the substantive law recognizes. To understand why courts make the orders they make we need a general theory, or at least a general explanation, of the relationship between orders and substantive rights. This book attempts to provide such an explanation.
In addition to addressing the above questions, this book seeks to fill another lacuna in the literature on remedies. The typical remedies textbook is a paradox. The existence of such textbooks suggests that their authors believe that the rules discussed within them have something in common. If there is such a thing as the ‘law of remedies’, some of this law must be about remedies in general. Yet the way that remedies textbooks are traditionally organized suggests otherwise. As I mentioned earlier, remedies textbooks typically present the law entirely or almost entirely in remedy-specific categories. There are chapters on specific performance, injunctions, damages, and so on—but, typically, no chapters dealing with rules or principles that apply to remedies generally. In contrast, this book argues that much of the law of remedies can be explained using general principles. For example, I argue that notwithstanding their historical origins in separate courts (the Chancery Court and the Royal Courts), the rules governing the creation, form, and enforcement of rulings reflect common concerns and apply common principles to address those concerns. Similarly, I argue that nearly all the reasons for denying a prima facie case for specific relief (e.g. adequacy of damages, supervision, clean hands, laches, and so on) are particular manifestations of principles that apply to rulings generally. The same rules and principles could have arisen in a unitary court system. A third, related, example is the broader law of defences: much of this law, I argue, is both general in application and concerned with exclusively remedial defences, that is, with reasons for refusing remedies.
Taken together, these answers provide the foundation for an understanding of remedies that takes the concept of a remedy seriously, that asks directly about the relationship between remedies and substantive rights, and that explains remedial law in terms of general principles, not historical categories.
C. Why the Answers Matter
Do these answers matter? Echoing Oliver Wendell Holmes, sceptics might argue that most people are not particularly concerned about their substantive rights, much less about the relationship between these rights and court orders. What people care about, it might be thought, is what the law will do for them if they become embroiled in a dispute, in particular, whether the law will invoke its coercive powers on their behalf or against them.18 And judges might be thought to share this attitude, since what judges must decide is whether the facts satisfy the claimant’s cause of action (not whether those facts establish a substantive right). More broadly, even legal theorists might suggest that this book appears uninterested in the most important question about orders: What is the purpose of doing the things that orders require defendants to do? Who cares whether an order to pay the claimant a sum of money replicates the defendant’s substantive duty? What matters, surely, is whether making such a payment is a good thing, and why it is a good thing.
The short response to such observations is that this book’s primary aim is not to reform the law or even to evaluate it, but simply to understand it. And to understand the law, it is necessary to make sense not just of its outcomes, but also the distinctive methods and reasons it employs in bringing about those outcomes. From this perspective, the distinction between rules, rulings, and sanctions is crucial. Indeed, it is crucial not just for understanding remedial law, but for understanding substantive law. An important consequence of the historical failure to distinguish remedial from substantive law is that it is frequently assumed that our substantive duties mirror those that arise from private law orders (or, what amounts to nearly the same thing, that private law orders always rubber-stamp substantive rights). In other words, it is assumed that we can identify our substantive rights simply by identifying the orders that courts are willing to make. In this view, if a court orders a claimant to return a sum of money paid by mistake, it follows that the claimant had a substantive duty to return the money prior to the order. This book rejects this assumption: as noted above, although I accept that some substantive rights are replicated in private law orders, I argue that others are transformed, and some are given no effect whatsoever. Further, some private law orders create entirely new duties. The complexity of this relationship has profound implications for our understanding not just of judicial orders, but also of the substantive law. For example, if orders to pay damages or to make restitution typically create new duties (as I argue), it follows that there is no substantive duty to pay damages or make restitution until a court makes the relevant order. This conclusion, in turn, has implications for the broader understanding of private law: most obviously, theorists
18 Holmes (1897) 459–62.
must explain why the law does not impose a substantive duty to pay damages or make restitution. Many theories of substantive duties assume that such duties should (and do) exist.
The longer response must distinguish between the theorist and the Holmesian sceptic. To the theorist, the response is that it is difficult to say much about the law’s normative foundations without having a clear picture of its structure. Indeed, having a clearer picture of remedial law’s structure will help us to determine what normative arguments are appropriate in this field. Consider, for example, my argument that remedial law focuses upon the relationship between individuals and courts. As I mentioned earlier, this argument suggests that remedial rules are, in a sense, public law rules.19 Claimants who satisfy the cause of action for an award of damages obtain the right to demand that the court—a state entity—perform a certain action, namely, to issue an order. The public law aspect of remedial law has obvious implications. The question of how citizens should behave towards one another (the primary subject matter of private law) is different from the question of how courts should behave towards citizens.20 This is true even where the only thing claimants ask the court to do is to direct defendants to perform their pre-existing substantive duties. Indeed, the distinction would be critical even if it were the case that all private law rulings confirmed substantive duties and all substantive duties were enforceable by rulings. If the common law were like this, this book’s subject matter would consist of a single rule that directed courts, on proof of an unfulfilled duty, to order defendants to perform that duty. It is not difficult to show that this picture is inaccurate. Yet even if it were accurate, we would still need to explain why courts make such orders, and this explanation would be different from the explanation of substantive private law rules. If the explanations were the same, there would be no point in making orders.
To the Holmesian sceptic, the longer response is that the distinctions drawn in this book are relevant in practice. It may be true that most citizens care about substantive rights only insofar as courts support those rights with orders (and insofar as sanctions back those orders). Still, there are undoubtedly citizens who treat substantive rules as sufficient reasons to perform the actions they stipulate.21 For these citizens, it matters whether they have a substantive duty to pay money or merely a liability to be ordered to pay money. The distinction between substantive rights
19 ‘[I]n a sense’ because the rules governing private law orders are closely connected to core aspects of private law. Courts issue private law orders to resolve private law disputes, and the rules governing their availability and content invariably require judges to take account of substantive private law rules. To obtain an order of specific performance a defendant must prove the existence of a valid contract. Further, the primary legal consequence of issuing an order is that a private citizen—the defendant—falls under a duty to do what the order requires.
20 Dan-Cohen (1984) distinguished, in a similar way, between ‘conduct’ rules and ‘decision’ rules in the context of criminal law rules. As I explain in Chapter 4, the rules governing availability of private law orders also grant individuals powers. However, these are powers to place courts under duties to issue orders. The duty-imposing part of remedial law imposes duties on courts.
21 See generally Tyler (1990); Licht (2008).
and court orders is also practically important in litigation. Courts must sometimes determine whether a particular right correlates to a substantive duty owed by another citizen or whether it merely correlates to a court’s duty to issue an order on proof of certain facts. This issue may arise, for example, in disputes concerning prejudgment interest, tender and settlement, the tort of procuring a breach of a legal duty, and the application of foreign law. More generally, the overall development of private law is affected by lawmakers’ understanding of substantive duties, which in turn is affected by their understanding of the relationship between court orders and substantive rights. For example, if the reason that common law courts are reluctant to order specific performance of non-monetary contractual obligations is that such obligations are in reality disjunctive obligations to perform the relevant promise or to pay a sum of money, then it is inappropriate to treat deliberate refusals to perform non-monetary obligations as wrongs. It would also be inappropriate to apply different rules regarding remoteness of damages to deliberate contractual breaches or to contemplate ordering defendants in such cases to hand over their profits or pay exemplary damages. Similarly, if it is assumed that an order to pay damages for pain and suffering merely affirms an existing duty to pay such damages, then courts should be more concerned than they appear to be about ensuring that this duty’s content is determinable in advance of a court ruling.
A final response to critics, Holmesian or otherwise, is that an exploration of the nature and role of judicial rulings is inseparable from an exploration of the nature and role of a concept that should be of special concern to lawyers: justice. When someone says that something is ‘unjust’, they often mean nothing more than that it is ‘bad’ or ‘undesirable’ and that the state, a court, or another authority should do something about it. In this understanding, a battery or nuisance or the breach of a contractual duty is an injustice. However, as I explain in more detail in Chapter 8, this way of describing batteries, nuisance, contract breaches, and other wrongs is atypical. We do not usually say that intentionally hitting someone is ‘unjust’. It is more common—and more helpful—to describe batteries, nuisances, contract breaches, and so on simply as wrongs. We usually use the term injustice more narrowly, to describe actions or states of affairs that are in some sense unfair, typically because a loss or gain (broadly understood) has been unfairly allocated, distributed, or allowed to persist. Thus, we ask whether the tax system is just because we want to know whether it allocates the burden of taxation fairly. Similarly, we ask whether a particular punishment is just because we want to know the burden that it imposes is a fair response to the crime. And we ask whether a judicial decision was just because we want to know if the right party won.
It follows that while your neighbour wrongs you if he or she takes your property without your consent or imprisons you unlawfully, if a court does these things it does not merely wrong you, it acts unjustly. And the way that courts do such things is by issuing rulings. It is always appropriate, then, to ask whether a judicial ruling (or at least a ruling that resolves a private law dispute) is just. By definition, judicial
rulings are allocative: one party wins and other law loses. This feature of judicial rulings helps to explain why judges are called ‘Justices’ and why claimants speak of going to court to ‘obtain justice’.22 In Aristotle’s words, ‘the judge wants to be, as it were, justice ensouled’. Of course, there are other parts of private law that raise issues of justice (although arguably the most important of these—the law governing unfair losses and gains—is also remedial law). However, the issuance of disputeresolving rulings always raises issues of justice.
This observation does not mean that court rulings are more important than substantive rules. The point is merely—but importantly—that the law governing judicial rulings is the concern of a particular part of morality, and, moreover, a part of morality that should be of special concern to lawyers. Lawyers have no special insight into why it is wrong to lie, break promises, steal, or assault others. However, lawyers do, or at least should, have some insight into the nature of justice. And it is the remedial part of private law that raises issues of justice most clearly.
D. Private Law Orders and Other Rulings
This book’s legal subject matter is rulings that courts issue as part of the resolution, permanent or temporary, of a private law action (‘private law rulings’), and in particular the subcategory of such rulings that direct defendants to do or not do something (‘private law orders’). More specifically yet, I focus on seven core examples of private law orders: orders to pay damages, orders for a sum due, injunctions, specific performance orders, (some) restitutionary orders, orders to recover possession of land, and orders to recover possession of chattels.23 However, many of the book’s arguments apply to other rulings. It may be useful, then, to say a few words about the rulings that I do not discuss, and why I do not discuss them.
As just noted, private law orders are a subcategory—though by far the largest and most important subcategory—of private law rulings. The other subcategories are declaratory rulings and constitutive rulings. A private law declaratory ruling (‘declaration’) is a judicial pronouncement, usually made as part of the final disposition of a private law action, which confirms a particular and nominative legal status, relationship, or duty.24 An example is a judicial ruling stating ‘IT IS DECLARED THAT the oil painting by . . . known as “. . . ” is the sole property of the Claimant.’25 Declarations are traditionally employed to confirm already-existing legal states of
22 Aristotle (2009 reprint) V 4 (1132a 20–1).
23 For reasons of space, I do not discuss remedies that trace their origins to the Chancery’s exclusive jurisdiction, such as remedies for a breach of trust or breach of fiduciary duty (although many of my arguments can be applied to such orders). I also do not discuss dismissals of actions, or at least I do not discuss them separately. The law of dismissals is simply the other side of the law governing other rulings.
