5 The certainty offered by a rule-centric approach to remedial law

The goal of this research was to remedy the lack of certainty currently surrounding extracontractual liability law. Currently, the system is formally uncertain in that both the outcomes and the road to those outcomes are not always predictable, and substantively uncertain in that parties cannot trust that their substantive claims are realised to their fullest extent.

A rule-centric approach to remedial law remedies these types of uncertainty by repositioning the rule as the reason for the remedy instead of just a condition to be met. By viewing the rule this way, it becomes a source of normative information for deciding a given case. First, this is useful in selecting the appropriate remedy in a given case. Often, there will be only one appropriate remedy for the violation of the rule at issue. Where there are multiple remedies available, the rule makes it easier to apply the general rules of concurrence. Second, it may help in fashioning the selected remedy. The influence the rule exerts over this process may be direct – as when it helps fashion the hypothetical scenario needed to establish causality – or indirect – as when it helps to clarify when, where and how judgments of reasonableness and fairness must be made.

But the most important contribution this approach makes is that it increases the ‘substantive certainty’ of the system. By constantly connecting the remedy to the substantive rule that underlies the claim, it becomes easier to ensure that defendants are not obligated to do much more than the substantive law requires of them and, conversely, that claimants do not end up empty-handed too easily. Instead of constantly considering what would be ‘reasonable’ or ‘appropriate’ in a particular case without any guidance, a rule-centric approach allows the judge reach more nuanced judgments that are better in accordance with substantive law. Contrary to what seems to be the position today, the rule itself contains much of the normative information needed to decide the case. As a result, the remedy regains its proper place as an instrument to give effect to substantive law instead of an instrument that replaces the substantive law with novel normative requirements. The remedy follows the law, not the other way around.