Form, Creation, Legal Effects

Chapter 3 has two main aims. First, it provides an overview of the legal rules governing the form, creation, and legal effects of private law orders. Second, it explains these rules, and in particular it explains why they should be understood as part of the ‘general law’ of private law rulings. In substance, this explanation is a sustained critique of the traditional approach of organising and explaining these rules according to their historical origins, that is, according to whether they originated in the Royal Courts or the Chancery Court. Chapter 3 argues that these rules reflect general remedial-law principles, principles that could have easily developed in a unitary legal system. Taken together, these aims are an important part of the book’s broader project of taking seriously the idea of remedies as a legal subject. If remedies are judicial orders, then the rules governing their form, creation, and effects are an important part of remedial law. And if remedial law merits its title, those rules ought to have common foundations.

Introduction

Chapter 1 introduces the concept of a remedy and the associated concept of remedial law. Identifying remedies with ‘judicial orders’, Chapter 1 explains why this definition captures a distinctive and important legal phenomenon—albeit one that common law lawyers have failed to take seriously. In particular, the common law has not clearly distinguished remedial law from substantive law, with the consequence that its understanding of both subjects has been impeded. The chapter identifies four fundamental (but until now largely ignored) questions about remedial law—What is a remedy? Why does the law provide remedies? On what grounds are remedies issued? What kinds of remedies are issued?—and summarizes the book’s answers to these questions. Chapter 1 also describes different kinds of remedies, and briefly discusses the book’s terminology, methodology, and jurisdictional scope.

Wrongs

Chapter 7 examines remedies issued in response to wrongs. Some writers assume that all remedies are responses to wrong; others argue for the opposite conclusion. This chapter defends a mid-way position, arguing that some (but only some) damages awards are wrong-responding, specifically: nominal damages, exemplary damages, pain and suffering damages, and a variety of awards that are described compendiously as ‘vindicatory’ damages (and individually as user damages, waiver damages, market-price damages, non-pecuniary damages, and gain-based damages). Importantly, ordinary compensatory damages are not responses to wrongs. In defending this position, Chapter 7 rejects the ‘continuity thesis’ and, more generally, the idea of a substantive duty to pay damages. The chapter also explains the distinctive characteristics of wrong-based remedies, arguing that there is no natural or logical remedial response to a wrong (and, therefore, that, like criminal punishment, the sums awarded under this heading are determined by choice and convention).

Rights-Threats

Chapters 6-8 explore the three main ‘causes of action’ (the facts that claimants must prove to obtain remedies) in the common law: rights-threats, wrongs, and injustices. Chapter 6’s focus, rights-threats, arise when one of the claimant’s substantive rights is under threat from the defendant. It explains that courts respond to rights-threats by ordering the defendant to comply with the correlative substantive duty (in which case the remedy is ‘replicative’) or to comply with a close monetary substitute for that duty (in which case the remedy is ‘substitutionary’). For example, if the claimant proves that the defendant is threatening to trespass or to continue trespassing over its land, the court normally orders the defendant not to trespass. Chapter 6 argues that a rights-threat is the cause of action for orders for a sum due under a contract, recovery of land, recovery of chattels, injunctions, specific performance, and some (but not all) orders to pay damages that are issued in lieu of injunctions (‘substitutionary damages’).

Injustices

Chapter 8 explores the most controversial of the three private law causes of action discussed in the book: injustices. For the purposes of remedial law, an injustice is, roughly, an unfair loss or gain that has arisen from a transaction between the claimant and defendant. The chapter argues that an injustice is the cause of action for, inter alia, orders to make restitution following defective transfers (‘restitutionary orders’) and orders to pay damages for consequential pecuniary losses (‘compensatory orders’). This argument rests primarily on two propositions: (1) restitutionary and compensatory awards are duty-creating (and therefore the law governing them is remedial, not substantive); and, (2) notwithstanding that claimants who obtain restitutionary and compensatory orders have often suffered a wrong (particularly in the case of compensatory awards), the cause of action for such awards is neither a rights-threat nor a wrong. Chapter 8 also argues that the cause of action for restitutionary and compensatory orders is appropriately characterized as an injustice. But this argument is relatively brief because, assuming the above propositions are accepted, it is difficult to describe the cause of action for these orders without invoking injustice or a closely related concept.

The Basic Structure

Chapter 4 sets out a framework and associated terminology for expressing how private law orders differ from other legal phenomena, and how they differ from one another. In developing this framework, Chapter 4 also provides a preview of the book’s main conclusions. The framework is organised around three questions: (1) How are remedies related to other parts of the law? (2) On what grounds are remedies issued; and (3) What kinds of remedies are issued? In responding to these questions, the framework distinguishes, respectively, between; (1) substantive rights, action rights, court-ordered rights, and enforcement rights; (2) right-threats, wrongs, and injustices; and (3) replicative orders and creative orders, and as subcategories of creative orders, substitutionary orders, wrong-responding orders, and free-standing orders. Substantively, the framework expresses two of the book’s main themes. First, while court orders are connected in important ways to substantive rules and sanctions, they are, in the end, qualitatively different from both. Second, the relationship between court orders and rule-based (‘substantive’) rights is complex: although some orders replicate existing substantive duties, others create new duties-and they do this in different ways and for different reasons.

Defences

Chapter 9 explores remedial defences. It defends three broad arguments. First, the law of remedial defences constitutes a significant, though largely unrecognized, part of remedial law. Second, remedial defences are based on general principles—principles that cut across the historical boundaries between so-called legal and equitable defences. The same defences, and the same governing principles, could easily have developed in a unitary legal system. Third, while the law governing remedial defences appears, in many cases, ripe for reform, the general idea of specifically remedial defences is coherent. In developing these arguments, Chapter 9 distinguishes between substantive and remedial defences, and, within the latter category, between full and partial defences. Examples of full defences (each of which is discussed individually) include limitation periods, absence of formalities, immunities, res judicata, abuse of process, statutory non-actionability, and, in some circumstances, illegality. Examples of partial defences (again, each of which is discussed individually) include adequacy of damages, supervision, personal duties, clean hands, laches, hardship, and public interest.

Philosophical Foundations

Enacting rules is an obvious way for authorities to guide behaviour and set standards for large numbers of people. Imposing sanctions, in turn, is an obvious way to help ensure compliance with rules. The role of judicial orders (remedies) is less obvious. What is the point of ordering defendants to do things when the law has, or could have, rules that tell individuals to do the same things and sanctions that it can impose when rules fail to motivate? Chapter 5 explores this question. It argues that judicial orders provide distinctive reasons to perform the actions they stipulate, reasons that differ in kind from those provided by either rules or sanctions. Like duty-imposing rules—but unlike sanctions—orders purport to give rise to duties to perform the actions they describe. However, the explanation of how such duties arise differs as between rules and orders. Duty-imposing rules are propositions about, and constitutive of, the existence of duties. When courts assert such rules, they presume ‘declarative authority’—the authority to declare that, by virtue of the assertion (or ‘declaration’), something is the case, here that a certain duty exists. In contrast, orders are imperative statements: they command the performance of particular actions. Insofar as orders give rise to duties to perform the actions they stipulate, they do so indirectly, by virtue of a presumed general duty to obey orders. In presuming this general duty, the law invokes ‘directive authority’—the authority to command obedience. Because these forms of authority are different, orders can provide new reasons to do things that rules already require and, as well, reasons to do things that are not a proper subject matter for rules.

Historical Foundations

Chapter 2 provides an overview of the historical origins of remedial law and of the common law’s understanding of remedial law. The chapter focuses on two relationships: (1) between so-called ‘legal’ and ‘equitable’ remedies; and (2) between remedial law and substantive law. Substantively, Chapter 2 explains, from an historical perspective, why the common law has traditionally regarded equitable remedies as distinctive and, second, why the common law has long understood substantive law through a largely remedial lens. The chapter also sets the stage for the critiques, developed in later chapters, to each of these understandings.