Justifying Private Law Remedies

C.E.F. Rickett

• Publisher: Hart Publishing
• Year: 2008
• ISBN:
  9781847317087
• Edition: 1
• Topic: Law
• Subtopic: Contract Law
• Index: Law

In August 2006 the third Australian Obligations Conference was hosted in Brisbane by the TC Beirne School of Law. The theme of the Conference was "Justifying Private Law Remedies". This book contains a number of the papers delivered at that Conference, presented under several categories but all dealing with the fundamental issue of justification: General Concepts; Performance; Compensation; Punishment; and Restitution and Disgorgement. The authors are largely drawn from the legal academy, and include Canadian, Australian, British and New Zealand scholars. The collection will be of interest to all those concerned with the role, nature and place of remedies in the private law of the common law world.

Part I

General Concepts

1

Two Conceptions of Remedies

ERNEST J WEINRIB*

I THE TWO CONCEPTIONS

IN THIS PAPER I explore two ways of conceptualising the relationship between the basis of the defendant’s liability and the remedy, that is, between what Peter Birks termed the ‘causative event’ and the response.¹ In the first way, originally formulated in Aristotle’s account of corrective justice and later elaborated in the philosophical tradition of natural right, the causative event is the reason for the remedial response. In the second way, paradigmatically set out in Kelsen’s pure theory of law, the causative event is the condition of the remedial response. For each of these two ways the causative event enters into the practical reasoning about the response in a different manner. In the first, the causative event is a condition of the response because it is the reason for it. In the second, the causative event is the reason for the response because it is a condition of it.

Consider first the following observations by Aristotle about the function of the judge in a civil action.

[P]eople have recourse to a judge when they are engaged in a dispute. To go to a judge means to go to the just, for to be a judge means, as it were, to be the embodiment of what is just … The judge restores equality. As though there were a line divided into two unequal parts, he takes away the amount be which the larger part is greater than half the line and adds it to the smaller. Only when the whole has been divided into two equal parts can a man say that he has what is properly his, i.e., when he has taken an equal part.²

Aristotle represents what properly belongs to each of the disputing parties as an equal segment of a line. The injustice—the causative event—consists of the defendant’s having taken part of the segment that properly belongs to the plaintiff, thereby destroying the underlying equality. The judge remedies this injustice by reattaching to the plaintiff’s segment the amount by which the defendant’s part exceeds the half-line that each should have.

In this representation, the causative event is the reason for the particular response. What the defendant has done to the plaintiff determines what the judge requires the defendant to do for the plaintiff. The defendant is now obligated to return what the defendant unjustly took from the plaintiff. Because justice between the parties obtains when the line is divided equally between them, the disturbance of the equality counts as an injustice, which the judge undoes by restoring the initial equality. Just as the causative event for liability is the defendant’s taking a segment of the plaintiff’s line, so the remedy is the retaking of that segment from the defendant and reattaching it to the plaintiff’s part of the line. If one were to ask Aristotle’s judge why he redivided the line in this way, he would answer that this was the only just response to the defendant’s action.

The point of Aristotle’s account is to draw attention to the relationship between the particular injustice of the causative event and the particular response ordered by the judge. One might think, following through on the representation of the parties’ relative positions in terms of equal segments of a line, that one could restore the equality in a number of different ways. The shortening of the plaintiff’s segment of the line, for example, might lead the judge to somehow arrange to extend the plaintiff’s line by twice the length of the segment that the defendant took, thus leaving both parties with an equal share of a larger line. Conversely, the lengthening of the defendant’s segment might lead the judge to order that the defendant’s line be shortened by twice the length of the taken segment, thus leaving both parties with an equal share of a shorter line. These methods of restoring equality, however, do not reflect the nature of the injustice committed by the defendant. The injustice did not consist in the plaintiff’s ending up with a shorter segment, to be remedied by lengthening the plaintiff’s segment while leaving the defendant’s increased segment intact. Nor did the injustice consist in the defendant’s committing an unjust act that augmented his segment, to be remedied by shortening that segment while doing nothing for the plaintiff. Rather, the injustice simultaneously shortened the plaintiff’s line and lengthened the defendant’s; indeed, it shortened the plaintiff’s line through its lengthening of the defendant’s. Accordingly, the remedy to this injustice must similarly implicate both parties, restoring the equality by simultaneously relengthening the plaintiff’s segment and reshortening the defendant’s.

Aristotle’s point is that only through this bipolarity can the injustice of the causative event be a fully adequate reason for a response that links the defendant to the plaintiff. For, if the injustice provided a reason for operating on the segment of merely one of the parties, there would be a puzzle as to why it also operated on the segment of the other. And if the response was motivated by two separate reasons, one applicable to the plaintiff’s segment and the other to the defendant’s, there would be a similar puzzle as to why these reasons, being separate, have to operate simultaneously.

Aristotle takes it for granted that a bipolar injustice provides the reason for the bipolar remedy. This is what makes the form of justice manifested by the judge’s action corrective, diorthotikon, literally ‘righting’ a wrong. His concern is structural: how does the structure of the remedy reflect the structure of the injustice that it corrects? What he notices is that the both the remedy and the injustice involve a direct relationship between the plaintiff and the defendant. If the remedy operated on only one of the parties, either by shortening the defendant’s segment of the line or by lengthening the plaintiff’s, it would leave the relational aspect of the injustice unremedied. Accordingly, the remedy has to replicate the structure of the injustice, retracing and reversing the movement between the parties. In noticing this, Aristotle does not, of course, resolve any specific remedial problem, but he tells what it means for a remedy to correct an injustice.

One can contrast Aristotle’s conception of the remedy with the one formulated by Hans Kelsen. For Kelsen, the legal order stipulates the conditions under which certain coercive acts function as sanctions that react against illegal acts or omissions. What counts as a wrong, or delict, is an act or omission that the legal order makes the condition of the coercive act; conversely, what counts as the sanction is the coercive consequence that the legal order attaches to that act or omission. Thus, the relationship between causative event and remedy is solely that of condition and consequence:

Given, as condition, behaviour opposite that which the norm establishes, then a coercive act is to be forthcoming as consequence.³

Aristotle and Kelsen link the wrong to the remedy in entirely different ways. For Aristotle, the wrong is a reason for the remedy because it is an injustice that the judge, as the embodiment of justice, must reverse. For Kelsen, the notion that ‘a moral value element is immanent in the concepts of delict and sanction’⁴ is untenable, because only the positive legal order imbues an act or omission with the character of a delict. To put the point another way: for Aristotle, the causative event is the condition of a remedy because of the kind of event it is, whereas for Kelsen, the event counts as causative only because it is the condition of a remedy. In Kelsen’s words:

[A] definite action or refrainment is not—as traditional jurisprudence assumes—connected with the coercive act because this action or refrainment is a delict, but a definite act or refrainment is a delict because it is connected with a coercive act, that is, with a sanction as its consequence. No immanent quality, no relation to a meta-legal natural or divine norm is a reason for qualifying a specific human behaviour as a delict; but only and exclusively the fact that the positive legal order has made this behaviour the condition of a coercive act—of a sanction.⁵

This juxtaposition of Aristotle and Kelsen brings out the contrast between what we may call the ‘reason conception’ and the ‘condition conception’ of remedies. Aristotle and Kelsen are led to these differing conceptions by the differences in their projects. Aristotle’s interest is in presenting the form of justice that is immanent in the relationship between the parties in private law. Integral to this form of justice is the idea that the direct relationship of the parties characterises both the causative event and the remedy, indeed, that it characterises the remedy because it characterises the causative event. Thus, the reason for thinking that the defendant’s act is an injustice to the plaintiff is also a reason for thinking that the remedy that corrects the injustice has to have the same relational structure as the injustice. Kelsen, in contrast, is concerned not with justice but with the posited nature of law. Because a norm can be legally valid even if it is thought to be unjust, the connection between the causative event and the remedy must be understood in terms of condition and consequence with respect to the coercion that the positive law mandates. Whereas Aristotle views the relationship of causative event to remedy as immanent to the structure of justice between the parties, Kelsen regards that relationship as exhibited through ‘an analysis of the immanent meaning of the legal order’⁶ as a system of positive law. The injustice that is paramount for Aristotle is therefore irrelevant to Kelsen.

The sections of this paper that follow develop some of the implications of each of these conceptions of remedies. I first elaborate, in section II, the ‘reason conception’ by sketching a composite, drawn from the work of Aristotle, Kant and Hegel, of this conception’s elements. Each of these thinkers mentions some of these elements and does not mention others, and they formulate the common elements in divergent ways. But for our purposes these differences are not as important as the overall picture that emerges about the relationship between the causative event and the remedy. In this picture the causative event is construed as an injustice that both grounds and limits the remedy that responds to it. This conception, I contend, provides the tightest possible rendition of what it is for a causative event to be the reason for a remedy in private law. Indeed, to the extent that one deviates from this picture, one slips into treating the causative event as a condition rather than a reason.

I then turn to the ‘condition conception’. Kelsen’s account of this conception is part of his elucidation of what it is for a norm to have the form of positive law regardless of the norm’s content. This indifference to content means that one cannot extrapolate from his account anything that would address the lawyer’s interest in what the legal system should look like. In this respect there is an asymmetry between Kelsen’s account and Aristotle’s. For, as we saw in Aristotle’s treatment of the segmented line, Aristotle thinks that the remedy has to match the bipolar structure of the injustice that it corrects; accordingly, his approach reproduces, although at a very high level of abstraction, the lawyer’s concern for the normative intelligibility of the law’s content. For Kelsen, in contrast, the law is a posited order that can have any content. Kelsen allows that actual legal systems do have remedies that purport to right the wrong by requiring the defendant to repair the damage illegally inflicted upon the plaintiff,⁷ bu...

Table of contents

• Cover
• Introduction
• Title Page
• Copyright
• Contents
• List of Contributors
• Table of Cases
• Table of Legislation
• Part I General Concepts
• Part II Performance
• Part III Compensation
• Part IV Punishment
• Part V Restitution and Disgorgement
• Index