2 Remedying the disconnect

The central inquiry in this thesis is whether and how a revaluation of the importance of the substantive rule connecting two parties in a private legal relationship could help structure remedial law. This is emphatically not an attempt to reintroduce the identity of right and remedy that existed in the ancient Roman or early common law, but rather an attempt to phrase the violation of legal rights and duties as a reason for selecting and fashioning a remedy, rather than merely a condition.

When trying to put disputes into words, lawyers often use concepts such as rights and duties. To understand their relationship with remedies, it is important to understand their relationship first. When lawyers speak of rights, they often mean many different things. A right can be a claim right, a privilege, a power, or an immunity.1 It is the claim right that is most important in the extracontractual context, because a claim right is the direct correlative of a duty.2 If I have duty of care towards you, you have the right that I observe the required standard of care. Conversely, if you have a right to not be discriminated against, I am under an obligation not to do so. So, although having a right to something means more than just having a claim right against others, in the extracontractual context that claim right is all that matters. In fact, if we extend the reasoning somewhat, it becomes apparent that the same is true for duties. I may be under a duty to do something generally, but that duty is only relevant in the extracontractual context if I owe it to you. It is these types of correlative rights and duties that give rise to remedies.

What function a remedy has in relation to these rights and duties, then, depends heavily on what function one ascribes to private law generally and liability law more specifically. If we understand extracontractual liability law to be purely corrective in nature,3 we would come to the conclusion that all private norms and remedies are focused on compensation or, at the most, prevention of losses. This flies in the face of both the reality of the substantive law and the arsenal of private remedies. First, private norms often do more than prevent monetary losses. If I own a piece of land, you are not only under a duty not to damage it, but you are also under an obligation not to walk on the land unless I give you permission to do so. Other norms seem to have a more allocative function in that they allow one party to make certain profits at the exclusion of some or all others. Second, and closely related to this latter type of rule, the possibility of an account of profits – even when phrased in terms of calculation of damages4 – betrays that there is more to remedial law than just compensation.

Another option would be to see private law as an instrument in achieving policy goals. This view has become more prominent over the last decades and resembles the EU approach to national law closely.5 The upside of this approach is that remedies are positioned as serving the purpose of a pluriform substantive law. The clear drawback is that it does not fit the positive law well, as a truly instrumentalist private law would offer more punitive measures, so as to ensure that rules are followed.6 In addition, it turns the dispute between two parties into a cog in the wheel of policy enforcement. This means that the judge stops doing justice between parties, but imposes ‘sanctions’ or denies claims because of the positive effect she expects her ruling will have on society. The result would be that a claimant could get less than substantive law offers her or – more frequently – that an unlucky defendant is obligated to do or pay far more than her substantive duty requires, thus leaving the claimant with a windfall. It also begs the question as to how this would work on a larger scale. If A is ordered to pay punitive damages to B because A’s behaviour was so reprehensible that we must be sure that she never engages in this kind of behaviour again, what happens if some months later C claims punitive damages for the exact same tort and losses? Should C be awarded the same sum or should she be limited to the compensatory amount? It seems odd to award C less than B, but that would suggest that the first punishment was not sufficient. The reason that this becomes problematic is that we are trying to use a dispute between two individualised parties to reach an external goal, which almost always creates injustices at the individual level.

More is to be expected from an internal point of view, that takes the substantive rule that connects parties in a private dispute as the determinant of the correct remedy. There are many variants of this ‘internal’ approach7 and the one advocated here is only one of approach and emphasis, not one of fundamental changes to the structure of private law. The idea is that the duty that one party owed the other is the best source of information as to what the distribution of risks and benefits between them is. All rules exist for a reason and these reasons tell us why and to what effect we should follow the rule. It would be odd to assume that these reasons should cease to exert influence over us once we violate the rule. Rather, this thesis subscribes to the view that these rules have a continuing effect over us after we violate them. This idea was originally developed in the context of compensatory tort law,8 but it is submitted that it works well for the whole of remedial law. By asking constantly why the rule exists in the first place, we get a clear picture of what the rule promises both parties. These reasons can help in selecting (§ 3) and fashioning (§ 4) the appropriate remedy.