Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs

2009 ◽  
Vol 22 (1) ◽  
pp. 49-78 ◽  
Author(s):  
Francesco Giglio
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Dual Theory ◽  
Judicial Decision ◽  
Legal Response ◽  
First Case ◽  
The Law ◽  
Compensatory Damages ◽  
Single Response

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

scholarly journals Was Duplessis Right?

2011 ◽  
Vol 55 (3) ◽  
pp. 401-436
Author(s):  
Roderick A. Macdonald
Keyword(s):  
Political Theory ◽  
Social Theory ◽  
Legal Theory ◽  
The State ◽  
Fiftieth Anniversary ◽  
The Other ◽  
Judicial Decision ◽  
The Law ◽  
Good And Evil

Given the inclination of legal scholars to progressively displace the meaning of a judicial decision from its context toward abstract propositions, it is no surprise that at its fiftieth anniversary, Roncarelli v. Duplessis has come to be interpreted in Manichean terms. The complex currents of postwar society and politics in Quebec are reduced to a simple story of good and evil in which evil is incarnated in Duplessis’s “persecution” of Roncarelli. In this paper the author argues for a more nuanced interpretation of the case. He suggests that the thirteen opinions delivered at trial and on appeal reflect several debates about society, the state and law that are as important now as half a century ago. The personal socio-demography of the judges authoring these opinions may have predisposed them to decide one way or the other; however, the majority and dissenting opinions also diverged (even if unconsciously) in their philosophical leanings in relation to social theory (internormative pluralism), political theory (communitarianism), and legal theory (pragmatic instrumentalism). Today, these dimensions can be seen to provide support for each of the positions argued by Duplessis’s counsel in Roncarelli given the state of the law in 1946.

Concerns about Corrective Justice

2013 ◽  
Vol 26 (1) ◽  
pp. 137-155
Author(s):  
Zoë Sinel
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Private Law ◽  
Unjust Enrichment ◽  
Guiding Principle ◽  
The Law ◽  
The One ◽  
Justice Theories

According to the principle of corrective justice, one who causes a wrongful loss or receives a wrongful gain is obligated to make good that loss or restore that gain. The guiding principle of the remedies of private law (the law of torts, contract, and unjust enrichment) is to put the aggrieved party in the position s/he would have been in had the complained of conduct not occurred. The connection between corrective justice and private law’s remedies thus appears analytic. My article challenges this orthodoxy. I argue that, on the one hand, if corrective justice is treated narrowly, as an exclusively remedial principle, it severs the connection between right and remedy that lies at the heart of the corrective justice theories of private law. On the other, if it is interpreted broadly to encompass as well the parties’ original (pre-wrong or pre-unjust enrichment) relationship, it becomes otiose.

scholarly journals Me and My Body: The Relevance of the Distinction for the Difference between Withdrawing Life Support and Euthanasia

2011 ◽  
Vol 39 (4) ◽  
pp. 671-677 ◽  
Author(s):  
Andrew McGee
Keyword(s):  
Lung Cancer ◽  
Life Support ◽  
Terminally Ill ◽  
The Body ◽  
The Other ◽  
First Case ◽  
Lethal Injection ◽  
The Law ◽  
The Difference ◽  
The One

In a paper that has recently attracted discussion, David Shaw has attempted to criticize the distinction the law has drawn between withdrawing and withholding life-sustaining measures on the one hand, and euthanasia on the other, by claiming that the body of a terminally ill patient should be seen as akin to life support. Shaw compares two cases that we might, at least at first, regard as distinct, and argues that they are not. In the first case, Adam, who is dying of lung cancer, is connected to a ventilator and requests to be disconnected. In the second case, Brian, also dying of cancer, is not connected to anything, and so he requests his doctor to provide him with a lethal injection. In the first case, Shaw contends, Adam is being kept alive by a ventilator. In the second case, Brian is being kept alive by his body.

The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions

2019 ◽  
Vol 32 (1) ◽  
pp. 59-82
Author(s):  
Helen Eenmaa-Dimitrieva
Keyword(s):  
Distributive Justice ◽  
The Other ◽  
Corrective Justice ◽  
Legal Practice ◽  
Large Area ◽  
Or Efficiency ◽  
Other Hand ◽  
Principle Of Justice ◽  
The Law ◽  
Complex Forms

Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle of corrective justice cannot be an explanation of a large area of our law as it claims to be.I argue that the increasingly complex forms of the problem of dependency that the critics have proposed lose their force once we have a better understanding of the principle of corrective justice and its relationships with other principles. The principle of corrective justice does not serve a conception of distributive justice or efficiency and can provide an explanation of a large area of our law despite the criticism. It does so independently as a principle of justice that is reflected in our legal practice.

What Do We Remedy?

2020 ◽  
pp. 209-230
Author(s):  
Nicolas Cornell
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Ex Ante ◽  
The Law ◽  
The One ◽  
The Right ◽  
Selection Of

This chapter examines the nature of civil wrongs from the perspective of the law of remedies, querying the supposition that remedies are exclusively responsive to primary rights violations and, in turn, the related supposition that a civil wrong is nothing more the violation of a primary right and correlative duty. Here, remedies correct for wrongs, but it is essential to recognize that the nature of a wrong—and, in turn, the selection of an apt or responsive remedy—is not driven exclusively by the nature of the right that was violated by the wrongdoer. This chapter’s analysis is framed as a critique of corrective justice theorists’ assertion of tight conceptual and normative connections between primary rights and duties on the one hand and remedies on the other. It argues that remedies are partly responsive to rights violations, and thus the ex ante positioning of the parties as a matter of right. But an expectation of responsiveness underdetermines choices between different kinds of remedies and those bearing on the quantum of relief to be afforded to a successful plaintiff.

Breach of Contract as a Special Case of Tort

2019 ◽  
pp. 333-346
Author(s):  
John Gardner
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Private Law ◽  
Breach Of Contract ◽  
The Law ◽  
Special Case

This chapter discusses a way of distinguishing the law of torts from other parts of the law. It argues that the law of torts is a law of the following: civil recourse, for wrongs, in which primarily corrective justice is attempted, in a primarily reparative mode, in response to claims for unliquidated sums, and where the duties breached are non-contractual. The chapter also explains primacy of the law of contract over the law of torts, according to economists of private law. The best way to think of the law of contract is to think of it as augmenting, or supplementing, the law of torts. This does not entail that the best way to justify the law of contract is to justify it as an augmentation or supplementation of the law of torts. Possibly, as the economists think, the order of justification is the other way round.

Dukungan Legislatif Dalam RUU KUHP Untuk Pemberantasan Korupsi: Pro dan Kontra Tindak Pidana Korupsi dalam RUU KUHPDukungan Legislatif Dalam RUU KUHP Untuk Pemberantasan Korupsi: Pro dan Kontra Tindak Pidana Korupsi dalam RUU KUHP

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1721
Author(s):  
Muhammad Aziz Syamsuddin
Keyword(s):  
United Nations ◽  
Criminal Code ◽  
The Other ◽  
Deterrent Effect ◽  
United Nations Convention ◽  
Legislative Support ◽  
The Law ◽  
Shared Commitment ◽  
Crime Of Corruption

AbstractThe spirit of the eradication of corruption is running continually. Various efforts or strategies were arranged to sharpen the power of corruptions’ eradication. One of the strategies is legislation support or comprehend and effective legislation. It was proved by the enactment of Law No. 28 of 1999 on State Implementation of Clean and Free from Corruption, Collusion and Nepotism and also Law No. 31 of 1999 as amended by Law No. 20 of 2001 on Corruption Eradication. The other related legislation such as Law No. 30 of 2002 on Corruption Eradication Commission and the Law 8 of 2010 on the Prevention and Eradication of Money Laundering.  Those Supporting legislations show that there is a shared commitment to eradicate corruption. Indonesia has also ratified the UNCAC (United Nations Convention against Corruption) by Law No. 7 of 2006 on the UN Convention (United Nations) Anti-Corruption. Support legislation is expected to provide a deterrent effect for offenders and protecting the rights of citizens has a whole. Keywords: Legislative Support, Criminal Code Draft, Eradication, Crime of Corruption, Pros and Cons    AbstrakSemangat pemberantasan tindak pidana korupsi terus bergulir. Berbagai upaya atau strategi dibangun untuk mempertajam kekuatan pemberantasan korupsi. Salah satunya adalah dengan dukungan legislasi atau peraturan perundang-undangan yang komprehensif dan efektif. Dibuktikan dengan lahirnya Undang-Undang No. 28 Tahun 1999 tentang Penyelenggaraan Negara yang Bersih dan Bebas dari Korupsi, Kolusi, dan Nepotisme dan Undang-Undang No. 31 Tahun 1999 sebagaimana diubah dengan Undang-Undang No. 20 Tahun 2001 tentang Pemberantasan Tindak Pidana Korupsi. Adapun undang-undang terkait lainnya seperti UU No. 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi dan UU No. 8 Tahun 2010 tentang Pencegahan dan Pemberantasan Tindak Pidana Pencucian Uang. Dukungan legislasi tersebut menunjukkan adanya komitmen bersama untuk memberantas tindak pidana korupsi. Indonesia juga  telah meratifikasi UNCAC (United Nations Convention Against Corruption) dengan UU No. 7 Tahun 2006 tentang Konvensi PBB (Perserikatan Bangsa-Bangsa) Anti Korupsi. Dukungan legislasi ini diharapkan memberikan efek jera bagi pelaku sekaligus melindungi hak-hak warga negara secara keseluruhan. Kata Kunci: Dukungan Legislatif, RUU KUHP, Pemberantasan, Tindak Pidana Korupsi, Pro dan Kontra

Genital Call and Genitals on Trial: by Giegold & Weiß (nGbK, 2014)

Screen Bodies ◽  
2016 ◽  
Vol 1 (2) ◽  
pp. 87-91
Author(s):  
Karen Fiss
Keyword(s):  
Sexual Assault ◽  
Male Student ◽  
The Other ◽  
Columbia University ◽  
The Law ◽  
Affirmative Consent

In California, where I live, an affirmative consent law was recently passed: often referred to as the “yes means yes” standard for sexual assault, it is now required of all colleges receiving state funds. Supporters of the law argue that campus rapists can no longer be exonerated because their victims did not resist or were incapacitated by fear, shame, or intoxication. On the other side of the country, a student at Columbia University became an icon in this ongoing legal struggle by carrying her mattress around with her everywhere, including to her graduation, as a sign of protest against the university’s refusal to expel the male student who raped her.

A NEW APPROACH TO THE STUDY OF COORDINATIVE CONSTRUCTIONS

2019 ◽  
pp. 175-187
Author(s):  
Anna Varnayeva
Keyword(s):  
Characteristic Property ◽  
Mathematical Concept ◽  
The Other ◽  
New Approach ◽  
Logical Aspect ◽  
First Case

Coordinative constructions are traditionally opposed to subordinative constructions. However, this opposition comes down to denial of dependence in coordinative constructions. Thereby the parity of these two constructions does not come to light: subordinative construction can be described without coordinative one. This situation is not improved by detection of a coordinative triangle in all coordinative constructions. The article shows a new approach in the study of coordinative constructions: a coordinative construction is a system; there are not only specific relations – a coordinative triangle, – but also specific elements. Novelty of the study consists in the address to extralinguistic facts, viz. a mathematical concept of a set and its elements. There are a lot of similarities between them. A set in mathematics includes generalizing elements and the composed row in coordinative constructions; in the first case the set is not partitioned, in the second case it is partitioned. In mathematics equivalent components in coordinative constructions correspond to the set elements. A characteristic property in mathematics is homogeneity in coordinative constructions and etc. It is firstly demonstrated, that coordinative and subordinative constructions are correlative and the study of one construction is impossible without the study of the other one. Their parity is shown in coordinative constructions with elements of one set, in subordinative ones with elements of different sets. Cf.: roses and tulips –red roses. In the coordinatiму construction elements of one set are called: «flowers »; in the subordinative construction there are elements of different sets: «flowers » and «colors». It should be noted that the mathematical concept of a set relates to so called logical aspect in linguistics or thinking about reality.

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