Thursday, January 16, 2020
Stephen Smith has posted to SSRN Rights, Wrongs, and Injustices: The Structure of Remedial Law--Introductory Text. The abstract provides:
In this text, which comprises the 'Preface' and 'Introduction' to Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019), I set out the foundations for the first comprehensive account of the scope, foundations, and structure of the law governing private law remedies (understood here as judicial rulings) in common law jurisdictions.
Substantively, this introductory text explains what remedial law is, why it is important, and how common law lawyers’ failure to take remedies seriously as a legal subject has impoverished their understanding not just of remedial law, but also of the broader private law. As part of this explanation, it also introduces four themes that run through the book’s examination of particular remedies. First, the question of what courts should do when individuals seek their assistance (the focus of remedial law) is different from the question of how individuals should treat one another in their day-to-day lives (the focus of substantive law). Second, remedies provide distinctive reasons to perform the actions they command; in particular, they provide reasons different from those provided by either rules or sanctions. Third, remedial law has a complex relationship to substantive law. Some remedies are responses to rights-threats, others to wrongs, and yet others to injustices. Further, remedies respond to these events in different ways: while many remedies merely replicate substantive duties, others modify substantive duties and some create entirely new duties. Finally, remedial law is underpinned by general principles — principles that cut across the traditional distinctions between ‘legal’ and ‘equitable’ remedies.