‘Rights, Wrongs, and Injustices: Taking Remedies Seriously’: 2018 Cambridge Freshfields Lecture
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‘Rights, Wrongs, and Injustices: Taking Remedies Seriously’: 2018 Cambridge Freshfields Lecture

November 27, 2019

Good evening ladies and gentlemen, distinguished
judges, friends of the faculty, colleagues, students. I had someone ask me as we waled in could
we not have the lecture outside but it is that sort of weather so it’s very good to
see you here this evening inside rather than making the most of it. I’m Sarah Worthington for those who don’t
know me, and I’m delighted to welcome you to the Law Faculty for this fifth Cambridge
Freshfields Annual Law Lecture. This is a series of lectures generously sponsored
by Freshfields and organised by the Cambridge Private Law Center, and it’s one of our ambitions
as the Center to facilitate more informed and lively debate about some of the fundamental
and significant legal issues we face, so we’re especially delighted this evening to have
Professor Stephen Smith here to speak. He is eminently qualified to deliver exactly
what we want. I know in an introduction I should tell you
something you don’t already know about the speaker, but I’ll start with the well-known.
Steve Smith is the James McGill Professor in the Faculty of Law at McGill University.
His academic career began with a BA in political science in Canada, followed by an LLB at the
University of Toronto. He did well enough in that to then work as a Clerk to the then
Chief Justice of the Supreme Court of Canada, the Right Honourable Brian Dixon. Then he
looked overseas and somehow rather inexplicably he ended up at that other place, undertaking
his DPhil in Oxford and staying on as a tutor and senior fellow at St. Anne’s. However if you examine his CV there were enough
visiting appointments and lectures overseas during that stint in Oxford to enable a fortune-teller
to predict an eventual move to his current home – the University of McGill in 1998. Since then, and from that base at McGill,
Steve seems to have ventured all over the globe. I know have a reputation for being
able to get around, and Europe and Asia or perhaps predictable destinations, but if you
look at Steve Smith’s CV it reveals some very serious writing on Russian and Chinese contract
law. I haven’t read those. And his books and writings have earned him various academic
awards and I won’t go through them all. My very first introduction to Steve Smith
came when I encountered his book ‘Contract Theory’ in the Clarendon Law Series – quite
a special book. But there’s another earlier book – Introducing Common Law Concepts, one
that’s no doubt sharpened by his role at McGill that has him teaching both civil law and common
law, which he’s done for an extended period of time. The very particular insights that
that sort of exposure and focus must inevitably produce have no doubt influenced his take
in his forthcoming book rather enticingly entitled ‘Rights, Wrongs, and Injustices:
The Structure of Remedial Law’. In this book Steve seeks to explain remedial
law in terms of general principles not historical categories – something we’re not so used to.
It’s a rich hinterland so I’m sure that this evening we’re about to have some of the product
of that thinking revealed in tonight’s lecture – ‘Rights, Wrongs, and Injustices: Taking
Remedies Seriously’. The plan is that Steve will speak for about
45-50 minutes and then we’ll have questions, and then we’ll go upstairs to the ground floor
for drinks. Everybody here is warmly welcomed to those drinks, but without more ado I welcome
you Steve. Thank You Sarah for those kind words and thank
you to Freshfields for sponsoring this. when I was in university I had a summer job as
a tour guide, on bicycle tours and we used to say that the secret of a good tour was
expectation management and I used to tell the novice guides – I said when you’re explaining
the day’s route you make it sound as bad as you can if you made it sound one bit worse
they wouldn’t do it and then at the end of the day they will be really happy and because
it all turned out so much better than they expected. Now on that background I don’t think
Sara did a very good job. She sort of suggested there’s all going to be downhill cycling but
I promise you there’s going to be a few bumps and even a few long up hills in this lecture. The law imposes itself on citizens in three
main ways. The first is by enacting or recognizing substantive
rules. For example, there are rules that stipulate general legal duties� ‘Everyone has a duty
to perform their contracts’�and there are rules that tell individuals what they must
do if they wish to create or modify such duties�’A contract is created by an offer and an acceptance’. The second way the law imposes itself is by
courts issuing rulings. Typically, these rulings direct individuals to do or not to do specific
things. For example, a court might order a defendant to pay the claimant a sum of money
or to return the claimant’s property. The third and final way that the law imposes
itself on citizens is by imposing sanctions. For example, legal officials may throw citizens
in jail or seize their property. The first and the third of these methods�enacting
rules and imposing sanctions�have been studied extensively by legal scholars. Most general
theories of law are theories about rules or sanctions or some combination of the two. But the second method�issuing rulings�has
been largely ignored. As I hope to show in this lecture, there is
a lot of law that deals with rulings. This law is studied in law faculties, and applied
every day in the courts. But we have not asked the big questions about
it that we have asked of other areas of the law. In my talk today, I want to raise some of
these questions. I will also try to answer them; but what I am really interested in are
the questions. Whether or not you agree with my answers, I hope to convince you that the
questions are important. You will have noticed that this talk is entitled
‘Taking Remedies Seriously’ not ‘Taking Rulings Seriously’. I adopted this title because I
will focus on one particular category of rulings, which I call remedial rulings, or just remedies.
Some of what I will say today applies to rulings in general, but most of the talk focuses on
remedial rulings, and, in particular, private law remedial rulings. I will address 2 questions: What is a remedy? When are remedies available? What are the
grounds on which courts grant remedies? But before I turn to these questions, it might
help, to set the scene, if I say a few words about how I came to be asking them. The short answer is that I am writing a book
on remedies. The longer answer is that my interest in these questions originated with
two puzzles. The first puzzle was pedagogical. A few years
ago, I was asked to teach a course on ‘Private Law Remedies’. I assembled a list of materials
based on the standard textbooks. When it came time to prepare my lectures, I adopted my
usual approach of trying to find a common thread or principle to tie the materials together. I failed initially. A large part of the course
focused on specific relief: these rules seemed to be concerned exclusively with the question
of when courts would issue specific relief. The remainder of the course was mostly about
damages: these rules seemed concerned not with the availability of damages awards, but
with their content. It was not obvious to me what these rules had in common�never
mind what rules on things like self-help or rescission, which are also discussed in most
remedies texts, had in common with the rules on either specific relief or damages. It is true that all these rules were remedial
in that they were a cure of some sort for a problem of some kind. But the same is true
contract law, tort law, and indeed of law generally. Law is a remedy for the problems
that exist in a world without law. So I was puzzled by the course that I was
teaching. Eventually, however, reflection on this puzzle
led me to think that there was something distinctive about at least some of the rules that I was
teaching. In particular, it seemed to me�and it still seems to me� that the rules governing
specific relief were different from most of the rules that I was teaching in other, substantive
law, courses. The rules on specific relief are fundamentally
rules for courts�they tell courts how to act. Stated differently, these are arguably
public law rules�their concern is the actions of state officials. Of course, all legal rules are applied by
courts. However, the rules governing specific relief are not merely applied by courts: they
tell courts how they should act. In particular, they tell courts what they should do when
individuals come to them seeking certain kinds of assistance. For example, they tell courts
that they should not grant requests for specific performance if damages would be adequate. In contrast, the rules that make up substantive
law�for example the core rules of contract and tort law�are different. These rules
are addressed to citizens: they tell citizens how they should behave towards one another.
They say things like, ‘fulfill contractual promises,’ ‘do not trespass,’ ‘do not take
others’ property’, and so on. This distinction seemed to me, and still seems
to me, important. It is important because the question of how citizens should treat
one another is different from the question of what courts should do when citizens come
to them for assistance. Different considerations apply.
Let me give a non-legal example to illustrate this point: A few years ago, when my children were still
living at home, my younger son came to me fuming mad. He was mad at his older brother
because his brother had promised to help him with his homework, but was now refusing to
do this. He wanted me to do something about it. I called in my older son and I interrogated
him (this was in Quebec, a civil law jurisdiction.) I determined that the promise had been made,
indeed my older son admitted as much. What had happened was that they subsequently fell
into a disagreement about an unrelated matter. So what did I do? My younger son wanted a
specific performance remedy�he wanted me to order his brother to help him with his
homework. But I refused. Why? I did not refuse because I thought my older son had a good
excuse: I thought he should help my younger son with his homework. The law in in our family
is that promises are meant to be kept. I refused because if I ordered specific performance
the two of them would be back before me, arguing again, within about 10 minutes. So I decided
on an alternative remedy. It was not damages�our family is not that legalistic�but it was
an attempt to find a substitute, as best I could. I think I ordered my older son to do
some of the younger son’s chores�doing the dishes, I think�so as to give the younger
son extra time to work on his homework. This is a simple example. But it illustrates,
I think, the distinction between substantive and remedial law. The reason that I refused
specific performance had nothing to do with whether or not my son should keep his promise.
As I said, the substantive law in our family is that promises should be kept. I refused
for remedial-law reasons�reasons that applied uniquely to me, the court. Reflection on this distinction, let me to
conclude that the most useful definition of a remedy is that it is a judicial ruling,
and that a private law remedy is a ruling intended to resolve a private law dispute.
Remedial law, in this view, is the law that governs the availability and content of such
rulings. This definition led me to what was the real
pedagogical puzzle: which rules belong in this category? Which private law rules are
rules for courts and which are rules for citizens? In particular, where do the rules on damages
and restitution fit in this scheme? Are they directed fundamentally at citizens or at courts? The answer is not obvious; indeed, the question
seems barely to have been asked. Courts and commentators constantly refer to liabilities
to pay damages or to make restitution, but it is rarely clear whether they mean liabilities
to fall under substantive duties to pay damages or liabilities merely to being ordered by
a court to pay damages�or whether the answer makes a difference. More generally, books
on remedies rarely ask what, if anything, distinguishes the rules that they discuss
from the rules that are taught in substantive law courses. And of course most of the rules
taught in remedies courses are also taught in substantive law courses. The first puzzle, then, was to determine the
content of remedial law. The second puzzle was philosophical. When
I started teaching remedies, I also taught jurisprudence. Not surprisingly, I became
interested in what the jurisprudential literature had to say about judicial rulings. What I
found was that the literature had very little to say. Indeed, the question of why courts issue rulings
at all, and in particular why they issue rulings that direct defendants to do things has barely
been raised. And the answer is not obvious. Why bother
telling defendants to do things�for example, ‘pay the claimant $100’� when the law has,
or could have, substantive rules that say the same thing and sanctions that it can apply
when the rules are not followed. The ruling seems to do nothing more than repeat the rule. Reflection on this puzzle led me to think
that we lack a satisfactory account of the nature and role of legal rulings. Further,
as I thought about the ways in which rulings differ from rules and sanctions, I became
convinced that understanding these differences was critical to understanding why courts make
the particular kinds of rulings that they make. In short, the two projects�understanding
private law remedies and understanding rulings�came together. The book that I am writing is the outcome
of that merger. The book is not a treatise. It is fundamentally an argument for taking
its subject-matter seriously�for asking serious questions about what courts are doing
when they issue rulings. The argument has two prongs. The first prong,
which is my focus today, is a response to the pedagogical puzzle. This response seeks
to establish the scope and structure of remedial law, in particular private law remedial law. The other prong of the argument is a response
to the jurisprudential puzzle. The core idea here is that rulings, and in particular rulings
that require defendants to do things, provide distinctive reasons for action�reasons different
from those provided by rules or sanctions. I cannot explore this argument in detail today.
But I thought it might be useful if I gave you a couple of examples�again, non-legal
examples�that illustrate some of the differences between rules, orders, and sanctions. Household example: In my household, my wife
and I employ each of the methods that the law employs�we employ rules, orders, and
sanctions. For example, we have a rule in our family
that you must not throw food at the dinner table. If this rule is broken, my usual response
is to issue an order: ‘stop throwing food!’ And if that does not work, my next usual response�at
least when my children were younger�was a sanction, for example, sending the offender
to his or her room. The question is: what is the point of the
order? It appears to just repeat the rule. Why bother? It is sometimes suggested that the order is
a reminder or clarification of the rule. But that seems implausible: the rule is clear,
well-known, and the order is expressed as an order, not as a clarification or declaration. It is also sometimes suggested that the order
is a warning or threat of a sanction. But this also seems implausible: an order is not
expressed as a warning, it says nothing about the possible sanction, and in many cases orders
are given even when there is no possibility of sanctions. I still occasionally issue orders
to my son, even though he is now 6′ 5� and there is no chance that I am going to sanction
him. So why do I issue orders? The reason, I suggest,
is that I want to invoke a distinctive kind of authority�in particular, a kind of authority
that is different from that on which I rely when I enact rules. Rules like ‘don’t throw food at the table’
are basically statements that a duty exists: ‘everyone has a duty not to throw food’. In
contrast, an order is a command: ‘stop throwing food’. When I announce a rule, my hope is
that my children will accept that what it says is true�namely that they have the duty
that the rule declares. But when I issue an order, I am asking for obedience. The authority
to declare duties and the authority to command obedience are different. This difference is reflected in ordinary practices.
If my son questions the no-food-throwing rule, I will probably respond by trying to explain
why the rule expresses a valid duty. So I might explain that throwing food is wasteful,
or can lead to injuries, or inhibits morally uplifting dinner-table conversations. I might
also respond by explaining that by virtue of my age and experience I am an authority
on such duties. I would offer these explanations in the hope
that my son will accept that the rule actually does what it purports to do, namely to state
a valid duty. But if my son continues to refuse to comply with the rule, then I will usually
switch to the different kind of authority embodied in orders: ‘Stop throwing food�.’ When I do this, I am invoking my presumed
right to be obeyed, regardless of the merits of the ordered action. Like many of us, I
often make this switch to a different kind of authority explicit. I say: ‘Fine, I don’t
care what you think (of this rule): just stop throwing food!’
The lesson of this story is that there are often good reasons to issue orders even where
they merely replicate the content of a rule. We can also tweak this story to illustrate
that, in some circumstances, we might want to use an order not just in addition to a
rule, but instead of a rule. When my children were younger, if they threw
food at the table even after I ordered them not to, then, usually, a sanction would follow�in
our family, the sanction was usually being sent to their room. No doubt this is considered
bad parenting today. My interest, however, is in how the sanction�the punishment�was
communicated. One possibility would be to enact a rule to
the effect that anyone who throws food has a duty to go to their room. Our household
never had a rule like this. Nor do any legal systems that I know of. You never see rules
that impose duties on wrongdoers to perform actions that are intended as punishments. What you find, instead, is that punishments
are imposed by judicial rulings. If my son was throwing food, I would order him to his
room; and when citizens commit crimes, it is courts, or their delegates, that order
them to pay fines, go to prison, and so on. Why don`t we use rules to impose punishments?
Why don’t we have substantive rules that say things like ‘anyone who parks in a handicap
zone has a duty to immediately pay the state $300′? It is true that few offenders would voluntarily
comply with such rules. But some might; in any event, if wrongdoers should pay fines,
you would think we would have legal rules that say this. But we don’t: we just use orders. Why? The reason, I suggest, is that we don’t
think wrongdoers have duties to punish themselves. Whatever justification exists for punishment
(retribution, deterrence, etc.), it is a justification not for wrongdoers punishing themselves, but
for the state imposing punishment on wrongdoers. Indeed, if we had legislation that imposed
a duty to pay $300 if you park in a handicap zone, it would be self-defeating. The rule
would be interpreted as imposing a tax or a fee on parking in handicap zones, rather
than a fine. This interpretation would be adopted because it is the only way to make
sense of the duty contemplated by the rule. A duty to self-punish is unintelligible, but
a duty to pay a tax or a fee is perfectly intelligible. These comments only scrape the surface of
a complex issue. But they are sufficient, I hope, to get you to entertain the idea that
there is something distinctive about orders; in particular, that we might want to use orders
not just to support substantive rules, but also, in some cases, as alternatives to substantive
rules. Let me return, finally, to the two questions
that I mentioned at the outset: What is a remedy? When are remedies available? On what grounds
do courts issue remedies? What is a remedy: As should be clear by now,
my answer to the first question is that a remedy is a judicial ruling. And a private
law remedy is a ruling that is intended to resolve a private law dispute. In the remainder of this talk, I will focus
on one type of private law ruling: a ruling that requires the defendant to do or not do
something. I call these directive rulings or just orders. The main examples are specific
performance, injunctions, orders to pay damages or a debt, and orders for the recovery of
land or other property. Directive rulings are the most common type
of private law ruling, and understanding them is critical for understanding not just remedial
law but, as well, for understanding substantive private law. Practical implications: what are the practical
implications of this definition? First, it excludes from remedial law various
rules that are discussed in any remedies texts. For example, the rules relating to things
like self-help or stipulated damages clauses are not, on this definition, part of remedial
law. They are a part of substantive law. A stipulated damages clause is just a term in
a contract. The second implication is that some things
that are not discussed in typical remedies’ texts are part of remedial law. In particular, a significant amount of the
law governing private law defences is remedial. Many defences are not reasons for individuals
to act differently, they are merely reasons for courts not to issue rulings. So, for example, limitation periods typically
leave substantive duties unchanged: they merely preclude courts from giving remedies. The same is true, I argue, for many formalities,
immunities, res judicata, settlement, abuse of process, and parts of the defence of illegality. The third implication is that most of the
rules discussed in typical remedies textbooks do belong there. In other words, I eventually
came to the view that there was something in common between most of the materials in
my remedies course. To begin, the rules governing specific relief
are, as I have already indicated, remedial. These rules tell courts when they should award
specific relief. The same is true of the rules governing orders
to pay debts and orders for the recovery of land or property. There are not many such
rules, but what rules there are, are rules directed at courts. Most importantly, the law of damages and the
law of restitution are, in my view, part of remedial law. This classification is controversial because
many writers believe that wrongdoers have substantive duties to pay damages�duties
that arise at the moment of the wrong. Many writers also believe that individuals who
have been unjustly enriched have substantive duties to reverse the enrichment�to make
restitution�from the moment that they were enriched. If this view is correct, then the law of damages
and the law of restitution are part of substantive law�they tell individuals what they should
do if they have committed a wrong or if they are unjustly enriched. In this view, an order
to pay damages or restitution is the same as an order to pay a debt: it merely tells
the defendant to do what he or she should have done already. Understood in this way,
the only remedial law applied in such cases is the rule that if you refuse to comply with
a substantive duty to pay a sum of money, then the courts will order you to pay that
sum. I once held this view myself. I am happy to
discuss later why I have come to reject it, but for the moment I will just mention two
reasons. The first concerns damages. In the common
law, it is clear law�and has been clear law for over 800 years�that it is no defence
to a claim for damages that you have offered to pay the amount the claimant is seeking. Suppose that I carelessly break your window.
I then offer to give you $100, which is what it will cost to fix the window. You refuse
the offer, and sue me instead, asking for $100 in damages. In my defence, I argue that
I offered to pay you the money. My defence will be rejected. If there were a duty to pay damages, this
rule make no sense. Your refusal to accept the money would clearly be a defence. Indeed, even if pay you the money�say I
just send it to you in mail�then, unless that payment is part of a settlement, you
will still get judgment for $100. I might get my money back through a set-off for unjust
enrichment, but you will win the claim for damages. As for restitution, if there were a duty to
make restitution following an unjust enrichment�for example, if the recipient of a mistaken payment
were under a duty, from the moment of the receipt, to return the money�then the failure
to comply with this duty should be a wrong, and should support a claim for damages. But
it doesn`t. Just as there are no damages for failing to pay damages, there are no damages
for failing to make restitution. For these and other reasons, the law of damages
and most of the law of restitution is, in my view, remedial law. It tells courts�not
citizens�what to do when faced with proof of a wrong or an unjust enrichment. Why does it matter how we classify these rules?
It matters for various reasons, but the main one is that the distinction is critical if
we are trying to understand why we have these rules. If there is no duty to pay damages
prior to an order, why not? Might it be�and this is in fact my view�that damages, or
at least certain kinds of damages, have more in common with punishment than we normally
think. If damages are something that courts impose on wrongdoers, then, just as in the
case of punishment, it becomes much more plausible to think that they are intended, at least
in part, to send a message to the parties. I turn now to the second question: When do
we get remedies? This question has received little attention
in the common law. A few scholars, most notably Blackstone, have suggested that all remedies
are remedies for wrongs. Some other scholars�notably Peter Birks�have suggested that all remedies
are responses to proof of a substantive right. In my view, the answer is more complex: in
my view, there are three basic causes of action in the common law�by which I mean three
factual situations that, if proven by a claimant, will normally lead to a remedy. I describe
these as rights-threats, wrongs, and injustices. I cannot possibly defend this claim properly
in a single lecture. Instead, I am going to do 4 things. First, I will briefly explain
the meaning of each cause of action. Second, I will provide a single example of a remedy
in each category. Third, I will say something about why courts issue orders in response
to these events. Fourth, and finally, after setting out the three categories, I will explain
where I think the remedies that I have not yet talked about fit within this scheme. Rights-threats: The first and most basic cause
of action is a rights-threat. A rights-threat arises where the claimant’s substantive rights
are under threat because the defendant is unwilling to comply with those rights. Where
a rights-threat is proven, the courts typically respond by ordering the defendant to comply
with the right. In other words, the typical response replicates the content of the defendant’s
substantive duty. It is a replicative remedy. For example, suppose that you and I have made
a contract, and as part of that contract you agreed to a non-competition covenant. Suppose
that you are breaching the covenant. Your ongoing breach is a rights-threat|: it is
clear evidence that you are unwilling to respect my contractual rights. And on proof of this
unwillingness, a court will normally order you to comply with the covenant. I describe the cause of action for this ruling
as a rights-threat�not merely a right�because the threat is the reason for the ruling. A
court will not order you to comply with my contractual right merely because the right
exists. I need to show that you are unwilling to comply with that right. A rights-threat is also different from a wrong.
It is true that in my example you committed a wrong by breaching the covenant.
However, the relevance of the wrong, at least so far as the order to comply with the covenant
is concerned, is simply as evidence of the threat: it is evidence of your unwillingness
to comply with your duty. Consistent with this interpretation, it is
not necessary to prove a wrong to demonstrate a rights-threat. For example, if I can show
that you are intending to breach the covenant in the near future, even if you have not yet
breached it, then I can normally obtain an injunction�a so-called quia timet injunction�directing
you to comply with the covenant. It is also possible to commit a wrong without
threatening a right. For example, if you accidentally committed a one-off breach of our covenant,
a court would normally refuse to order you to comply with the covenant. They would refuse
because while you infringed my rights in the past, my rights are not under threat for the
future. Why Rights-Threats? Why do courts issue orders
in response to rights-threats? This is the same question that I raised earlier, when
I gave the example, from my household, of an order to stop throwing food. That order
is a rights-threat-responding order. And the reason for issuing such orders, as I explained,
or at least illustrated, is to provide a new, and different, reason to do what the substantive
law requires. When courts issue orders, they rely on a different
kind of authority from that on which the law relies when it enacts substantive rules: they
are relying on the authority to command obedience. There is nothing surprising, then, about an
order that directs defendants to do what they already had substantive duties to do. Wrongs: The second private law cause of action
is a wrong. By ‘wrong’, I mean a breach of a substantive duty, such as a breach of contract
or a tort. You might expect that my example here would
be an award of damages. However, as I will explain in a moment, only some damages awards
are responses to wrongs. My example is therefore narrower: it is an
award of nominal damages. Of course, nominal damages are relatively
uncommon. However, they are, I think, a clear example within what is, in general, a difficult
category. Why are they a clear example of a wrong-responding
orders? Two reasons. First, and most obviously, the only thing
that you have to prove to obtain nominal damages is that a wrong occurred. If a trespass is
proven, nominal damages are available. Second, the sums awarded as nominal damages
are, at the end of the day, arbitrary. It could be one pound, it could be 10 pounds:
it does not really matter. This arbitrariness is what we should expect if these awards are
responses to wrongs. When an order is given in response to a rights-threats
or, as I will explain in a moment, to an injustice, the appropriate judicial response is self-evident:
the court should order the defendant to respect the threatened right or to reverse the injustice.
But there is no logical response to a wrong. Just as there are many forms of punishment
that could, in principle, achieve the aims that we currently pursue by fines and incarceration,
there are many forms of private redress that could, in principle, provide a private law
response to wrongs. As Peter Birks once remarked, the courts would not be acting inconsistently
if their response to private wrongs was to order the wrongdoer’s ears to be cut off. In short, nominal damages are symbolic. And
what they are meant to symbolise, is that the defendant wronged the claimant. Why do courts issue wrong-responding orders?
The real question here is not why do courts issue such orders. The real question is why
aren’t there substantive rules that require wrongdoers to do the things that such orders
require. Why don’t wrongdoers have substantive duties to pay their victims $1 immediately
following the wrong. If such a duty existed, then the cause of action for an order of nominal
damages would be a rights-threats. It would be a rights-threat because the only time courts
would need to issue such orders is when wrongdoers failed to comply with their substantive duty
to pay nominal damages. I think it is clear as a matter of positive law that no such duty
exists. But why not? Why leave it to the courts to order payment of nominal damages. The question is difficult. Briefly, however,
the explanation, in my view, is that when the law responds to wrongs what it is doing,
fundamentally, is communicating a message: it is saying that the defendant wronged the
claimant. For that message to be communicated, it must be issued by a court. I noted earlier
that criminal wrongdoers never have substantive duties to punish themselves: for punishment
to be punishment is has to be imposed by an order. The same is true, I suggest, for private
law’s responses to wrongs. For damages to be a response to a wrong, they have to be
imposed by a court. Injustices: the third and final cause of action
in the common law is an injustice. The term ‘injustice’ is often used in a very
broad sense; so broad that it could cover all possible causes of action. However, when
used in its core sense, the term injustice does not encompass rights-threats or wrongs.
Committing a battery, a trespass, or a breach of a contractual promise is a wrong, but it
is not an injustice. The label ‘unjust’ is basically the legal
version of ‘unfair’, and it is properly applied only to actions that are allocating something.
This is why we ask whether the tax system is just and why we ask whether a particular
measure of punishment is just. Now, I am not suggesting, of course, that
courts provide remedies for every kind of injustice. As with the concept of a wrong,
the law has a tightly circumscribed notion of what counts, legally, as an injustice.
Indeed, the range of injustices recognized by private law is much narrower than the range
of wrongs that it recognizes. The example that I will use to illustrate
this category is, again, a bit unusual. But even more than the category of wrongs, the
category of injustices is controversial. The example is legislative in origin. Most
common law jurisdictions have legislation authorizing courts to issue orders dealing
with maintenance and the division of matrimonial property following a marriage breakdown. In
England, the relevant legislation provides that courts may make an order that ‘either
party to the marriage shall pay to the other such lump sum or sums as may be so specified’. There is no suggestion in the legislation
that the defendant must have had a substantive duty, prior to the order, to do what the order
requires. The claimant merely needs to show that the allocation of the parties’ assets
following the breakdown is, broadly speaking, unfair.
The cause of action for such orders is appropriately described as an injustice. Courts issue these
orders not because the defendant acted badly or threatened to act badly, but because the
court thinks that the parties’ assets are allocated unfairly, that is to say, unjustly. Why do courts issue injustice-responding orders?
As with wrong-responding orders, the real question in respect of injustice-responding
orders is why we don’t have substantive rules that require defendants to do what these orders
require them to do. Why don’t the subjects of matrimonial property orders have substantive
duties to do what these orders require? My example of the matrimonial property order
suggests that one possible answer is that it is too difficult to draw up a rule that
could effectively guide citizens. Any substantive rule would be impossibly complex. However,
if this were the only reason that the law refused to enact such rules we would expect
courts to respond by issuing declarations, not orders. As I mentioned earlier, duty-imposing
rules are basically declarations of the existence of general duties. The individualised counterpart
to a rule is a declaration, not an order. But the matrimonial property orders are not
declarations; they are orders. Why? Again, this is a difficult question. The answer,
in my view, is that ‘correcting injustices’ is not an appropriate subject-matter for a
substantive duty. Our substantive duties are basically duties
not to wrong others. Correcting injustices is a valuable thing to do, but failing to
correct an injustice is not a wrong. In my household, I am generally the dispenser
of justice. But there are plenty of occasions when injustices go uncorrected because I am
away or asleep or just because I think that preparing a nice meal is, tonight, more important
than rendering justice. I don’t think there is anything wrong, at least in principle,
in allowing some injustices to go uncorrected. Nor, by the way, do we as a society think
this is wrong. If providing justice were the only thing that mattered, we would shut down
all the schools and hospitals and put all that money into building more courts. But
we don’t. We don’t because while correcting injustices is valuable, failing to do so is
not a wrong, or at least not a wrong in the sense that stealing or lying or breaking promises
is wrong. So when the law wants individuals to correct
injustices, it uses orders, rather than rules, to do this. Of course, once an order is issued,
the defendant has a duty to do what it says. Like wrong-responding orders, injustice-responding
orders are creative orders: they create, at the moment they are issued, new duties. However,
the duty they create is a duty to obey the order. Unlike rules, orders are not declarations
of the existence of substantive duties. The only duty contemplated by an order is a duty
to obey the court. Recap and 4th Question: Let me recap: I have
suggested that there are 3 causes of action recognized by the common law, I have given
a single example of each, and I have said a few words about why courts make these orders.
The final question is where do the remedies that I have not talked about fit within this
scheme? Let me start with the easier cases. There
are a number of familiar remedies for which I think it is fairly clear that the cause
of action is a rights-threat. The remedies I am referring to are: orders
to pay a debt, orders for the recovery of land or chattels, specific performance, and
injunctions. There is a wrinkle or two that requires explaining in each case�which is
why I did not use any of these orders as my example. But in each case, the order directs
the defendant to comply with a substantive duty, and in each case what the claimant must
show to obtain the order is that the defendant is not complying with the duty or is about
to not comply. Now to the harder cases. Restitution. The cause of action for orders
to make restitution, or at least for the core cases of orders to make restitution for impaired
transfers�for example an order to return money paid by mistake�falls into my third
category: injustices. These orders are analogous, in broad outline,
to the matrimonial property orders. Like the matrimonial orders, there is no substantive
duty to do what the order requires. Failing to pay restitution is not a wrong. And as
in the matrimonial property cases, what the courts are responding to, when they order
restitution, is an unfair, or unjust, allocation of property. The court’s order is intended
to correct the injustice, which it does by reversing the transfer. Finally: damages. Damages are complicated.
And part of the reason they are complicated is that there are different kinds of damages
awards. Specifically, there appear to be at least three kinds of damages awards, or parts
of awards. These different kinds line up, conveniently, with the three causes of action
that I have identified. The first category is what I call substitutionary
damages. Substitutionary damages are substitutes for specific relief. Suppose that you are in breach of a contractual
duty to build me a house. And suppose further that our contract has not been terminated,
so that your duty is still binding. On these facts, my contractual rights are under threat:
you are unwilling to comply with your substantive duty. Prima facie, the appropriate judicial
response should be to order you to build me the house. But for essentially practical or
administrative reasons, the courts are unlikely to make such an order. Instead, they will
order you to pay me a monetary substitute for performance, typically a sum equal to
the cost of hiring someone else to build the house. This order is a substitute for specific performance,
and its cause of action, accordingly, is the same as specific performance: a rights-threat. The second category is consequential damages�these
are awards, or parts of awards, that compensate for the losses caused by the defendant’s actions.
At one time, I thought such awards were similar to nominal damages�responses to wrongs.
But I changed my mind. For three reasons. First, and most obviously, it is not sufficient,
to obtain such an award, to show that you were wronged: you must also show that, as
a consequence of the defendant’s action, you suffered a loss. Second, the sums of damages awarded under
this heading often bear no relation to the seriousness of the wrong. Trivial wrongdoing
can lead to massive awards, and vice versa. Third, courts make these awards in cases where
they believe the defendant acted perfectly reasonably. In other words, in cases where
there does not appear to have been a wrong in any ordinary sense of the word. A famous example is the American case of Vincent
v Lake Erie. The defendant tied his ship to the plaintiff’s dock, without permission,
to save it from being wrecked in a violent storm. The ship caused minor damage to the
dock. The court said that the defendant acted perfectly reasonably in tying his ship to
the dock. However, the court ordered the defendant to pay for the damage that he caused to the
dock. Vincent is often regarded as an anomaly. However,
cases like Vincent are common. Any case where courts award damages instead of specific relief,
and where they do this because the cost of complying with the substantive duty is out
of proportion to its value, has the same structure as Vincent. These cases are critical for understanding
consequential damages awards. What they demonstrate is that consequential damages are, in broad
outline, similar to the restitutionary awards that I discussed a moment ago. The fundamental question addressed by consequential
damage awards is how the law should respond to losses that one person inflicts on another.
That question is a question of fairness or, more strictly, a question of justice. Of course,
courts contemplating consequential damages do not usually ask explicitly whether it is
‘fair’ or ‘just’ to make the defendant liable for the claimant’s loss. As in the parallel
case of ‘unfair enrichments’, the law has complex texts for determining what counts
as an ‘unfair loss’. Indeed, the rules governing liability for
another’s losses can be viewed as the flip-side of the rules governing liability for one’s
own gains. In each case, the relevant loss or gain may be a consequence of a wrongful
act. But in each case the law’s concern is not, fundamentally, the wrongfulness of the
defendant’s behaviour: it is the fairness of the loss or the gain. The third and final category of damages awards
is comprised of awards that are neither substitutionary nor loss-based. These are sometimes called
‘vindicatory damages’. Which damages awards fit into this category?
The most obvious example, which I have already discussed, is nominal damages. Nominal damages
vindicate the claimaint’s rights by making clear that a wrong has occurred. A second relatively obvious example is punitive
damages. Like nominal damages, punitive damages are the court’s way of saying that a wrong
has occurred: the difference is that punitive damages indicate that the wrongdoing was particularly
egregious. Finally, I would also include within this
category a variety of what I will call ‘market price’ damages awards. These are awards that
are fixed at the market price or market rental rate of property or services, even where that
sum exceeds the loss suffered by the defendant. For example, if you graze your cows on my
fields without permission, I can get an order that you pay me the rental rate for the field.
And I can get this, even if I would have never rented the fields to you or anyone else, and
even if the grazing caused me no harm. Punitive damages and market price awards are
similar to nominal damages: they are responses simply to the defendant’s wrongdoing. They
are attempts to represent, in monetary form, that the defendant wronged the claimant. Conclusion: Let me conclude with a bit of
history. For most of the common law’s history, private law was basically remedial law�it
was rules about when you can get into court and what you can get from a court once you
were in. The recognition of substantive law�of rules
telling citizens how they should behave in ordinary life�has been a slow process�indeed,
it is still going on today. The courts and writers responsible for this process�most
famously Blackstone, but continuing in recent times to writers like Birks�drew on many
sources: moral theory, continental writers, civil law, and so forth. But their most important
source was the existing law�and that law, as I said, was largely remedial law. The result is that substantive law was derived,
to a significant extent, from remedial law. This process has left many marks on the common
law, but the most general is that the common law has never fully separated substantive
from remedial law. Common law lawyers continue to view substantive law through a remedial
lens. This viewpoint explains why it is normal,
in many common law countries, to begin contract law courses by studying remedies. It also explains why we should not be surprised
that it was a common law judge�Oliver Wendell Holmes�who famously defined a contractual
obligation as a disjunctive obligation to perform or pay damages�and why an entire
school of private law academics�the law & economics scholars�have built their careers
around this definition. In this lecture, I have argued that we need
to move beyond this kind of reasoning: we need to take seriously the distinction between
substantive and remedial law. I have also tried to answer some of the questions
that arise when we approach the law in this way; for example, the question of whether
the law of damages is remedial or substantive. Ultimately, however, what matters is not my
answers. What matters is that the questions are asked.

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  1. 02:28 It's SO smart to laugh about things which you don't know. Especially, by common law students about civil law systems

  2. rules and the duty to do them, orders, sanctions laws and the duty to follow them you have to love this stuff to think about it all of the time. remedies have three categories : rights, wrongs, and injustices. later and thanks

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