Security

The law of security engages the jurist with three central challenges of the contemporary legal endeavour: are law’s institutions best organized and grouped by reference to stipulated conceptual features (their essences) or by reference to their social and economic purposes (their functions)? Is justice according to law foundationally about corrective justice upon which second order distributive regimes may be imposed, or is a regime of corrective justice a particular instantiation of a distributive regime? And, is law best conceived as a mechanism of social control or as a facilitation of human interaction? Unsurprisingly, specific legal systems answer the eight permutations arising from these questions differently. Surprisingly, even within the field of security in a given legal system, there is no coherence of approach; both sides of each dichotomy are reflected in the design and operation of the regime of security. What distinguishes legal orders, be they official orders of political states or orders arising from social systems, are the analytical starting points, the default reflexes, and the relative predominance of one or the other approach. To the layperson, the idea of security is not difficult to grasp. Whatever institutions and techniques make a creditor more secure in its belief that it will not suffer in the event of non-performance of an obligation by a debtor are security. The law has historically taken a narrower view. Not all inducements to performance or guarantees are security. To understand the variety of legal responses to the problem of definition, one needs to begin with the social situation from which the impulse to security originated, namely the fact that, at bottom, a creditor (from credere—to believe, to trust) has little option but to trust a debtor. Human relations involving credit have long been an ubiquitous feature of most Western societies. In everyday affairs we routinely find ourselves owing the performance of an obligation to another for a service rendered, an asset delivered, or a payment made. Conversely, we are regularly creditors of a promised future performance or payment by others. Normally we expect our debtors to faithfully fulfill their obligations, just as we anticipate faithfully fulfilling our own. It matters not that these obligations may have been voluntarily assumed (as in a contract), or arisen by operation of law (as in delictual, restitutionary, or fiduciary situations), or been imposed through a judicial order (as in alimentary claims), or find their origin in a public law statutory obligation (as in the liability to pay workers compensation and employment insurance levies, to collect employee tax deductions, or to directly pay property and income taxes). Sometimes, however, performance will not be forthcoming, or will be defective or inadequate. In these cases, the law provides that creditors may either compel performance of the prestation due or the payment of compensation in lieu of performance. With few exceptions, the exercise of any creditor remedy presupposes a judicial action, which if successful will lead to the compulsory execution of the judgment rendered. Where the obligation is to pay money or where monetary compensation is ordered in lieu, the sheriff will seize and sell the debtor’s assets and remit the proceeds of the sale to the creditor in payment of the debt owing. Should several creditors have obtained a judgment against a debtor and the sale of the assets not generate enough money to pay all their claims in full, the proceeds will be held in a common pool either by the sheriff or by an insolvency administrator and all claims will eventually be paid pro rata from the available money. Despite its apparent simplicity, this regime does not always …