Table Of ContentRights, Wrongs, and Injustices
Rights, Wrongs, and Injustices. Stephen A. Smith, Oxford University Press (2019). © Stephen A. Smith.
DOI: 10.1093/oso/9780199229772.003.0001
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Rights, Wrongs,
and Injustices
The Structure of Remedial Law
STEPHEN A. SMITH
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Rights, Wrongs, and Injustices. Stephen A. Smith, Oxford University Press (2019). © Stephen A. Smith.
DOI: 10.1093/oso/9780199229772.003.0001
Preface
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 assem-
bled 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 ma-
terials 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 de-
termine the content of substantive duties, such as the rules that establish the con-
tent 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 indi-
viduals 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 deter-
mine when courts will assist claimants’ efforts to ensure that defendants perform
their substantive duties; by contrast, the rules governing damages awards deter-
mine what wrongdoers should do for their victims. Given my membership in a fac-
ulty 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 dif-
ference. 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
Rights, Wrongs, and Injustices. Stephen A. Smith, Oxford University Press (2019). © Stephen A. Smith.
DOI: 10.1093/oso/9780199229772.003.0001
viii Preface
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, re-
flection on these differences (and on Rafael Zakrzewski’s groundbreaking book,
Remedies Reclassified) led me to think that it might be possible to develop a co-
herent 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 pri-
vate law courses. Rather than telling individuals how to behave in day-t o- 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 par-
ticular, 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 ser-
vice. 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—n ot merely wrong—f or 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
Preface ix
view was that only a small portion of these rules— primarily those governing spe-
cific 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 si-
lence. 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—t hat 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-r ule or a disguised sanc-
tion. 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 de-
claratory: 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 offi-
cials 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—u nderstanding private law remedies and
understanding rulings—c ame together.
This book is the outcome of that merger. Its legal subject matter is the law gov-
erning 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
x Preface
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 de-
tail, it is not a treatise on private law rulings. Rather, it is fundamentally an ex-
tended 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 con-
trast to rules and sanctions, directive rulings invoke the state’s authority to com-
mand 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 re-
sponse 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, im-
munity, 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 import-
antly, 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—n amely, 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 dif-
ferent 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 rem-
edies (‘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.
Preface xi
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 resti-
tutionary awards). In short, I argue that the common law recognizes three main
private law ‘causes of action’: proof of a rights-t hreat, 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 gen-
eral 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 text-
books 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 pri-
vate 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 rul-
ings 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.
