Remedies

Examining remedies from a transsystemic viewpoint is no easy undertaking. It involves putting a legal concept under the microscope, one side of which reveals a complex mosaic, whereas the other side appears blank, or missing. How can we cross to the other side and what effect does this have on our original perception? In private law, remedies have been depicted in the common law as a judicial solution to a cause of action: a means of legal redress arising out of a dispute about rights. In contrast, civilian law has no concept of remedies. In civilian law, rights intrinsically involve a bipartite relationship between private parties. In the common law, remedies create a tripartite relationship between the parties and the judge. Remedies and rights thus form an indissociable couple deriving from Roman law, yet their relationship in modern law is infinitely complex. From a contemporary viewpoint, the ancient question of whether remedies or rights come first permutates into an inquiry about how remedies and rights actually fit together. Whereas the question of remedies without rights is inconceivable to a civilian, seeming to open the doors to purely discretionary judicial remedialism, a common lawyer might not see it this way for a series of institutional and epistemological reasons. Conversely, the question of rights without remedies could be equally problematic, depending on one’s viewpoint. A civilian may be less concerned than a common lawyer by unenforceable enumerated rights. If this is true, this tells us something about jurists’ attitudes towards rights and duties, as well as the function of remedies. This insight is only partially a product of comparative inquiries; it is also a result of the growing perception that private law rights are increasingly constitutionalized, or rights-based. Injunctions to prevent publication of confidential information or an award to grant non-pecuniary damages for infringement of personality rights are good illustrations of this phenomenon, known to common law and civilian systems alike. A pragmatic common law approach to problem-solving precedes, both historically and logically, the enumeration of rights and correlative duties belonging to the civilian perspective. The focus on remedies in the common law emphasizes that, historically, private law evolved out of the interstices of procedure. Institutions of private law are not exclusively substantive, paramount, and conceptually distinct from questions of procedure. This dual perception shapes the way we think about private law. For instance, specific performance, first recognized by the courts of equity, enabled the common law tradition to articulate a value attached to performance in exceptional and limited circumstances. Conceiving of specific performance as a remedy in this way is different from attributing it with status as a primary remedy for non-performance of contract, on the basis that it is the only true way of compelling contracting parties to respect their undertakings and perform the contract. In French law, for example, specific performance is an institution of contract law, necessary to fulfill the goal of contracting—that is, to ensure performance, even if, since the Reform of the Law of Contracts of 2016–18, it is awarded subject to the criteria of either impossibility or proportionality. These two visions of the function of specific performance in relation to the law of obligations are fundamentally different, regardless of the specific rules concerning the availability of specific performance in various jurisdictions. The understanding that remedies correct wrongs or put things right again is inherent in the concept of remedies as a means of redress. The role thus attributed to remedies is predicated on a deep and perhaps unarticulated understanding that the law must react when something has gone wrong; that a solution must be found. …