3

¹ Peter Birks, Unjust Enrichment, 2nd ed. (2005), 21.

² Aristotle, Nicomachean Ethics, V, 1132a19–29.

³ Hans Kelsen, Introduction to the Problems of Legal Theory, tr. Bonnie Litschewski Paulson and Stanley L. Paulson (1997), 30.

⁴ Hans Kelsen, Pure Theory of Law, tr. Max Knight (1967), 111.

⁵ Ibid.

⁶ Ibid., 112.

⁷ Learned Hand, “Restitution or Unjust Enrichment,” (1897) 11 Harv. L. Rev. 240, at 256.

⁸ Above n. 4, 109.

⁹ Ibid., 113.

¹⁰ The distinction between what “goes to culpability” and what “goes to compensation” was current in the law of negligence until overruled in Overseas Tankship (UK) v. Morts Dock & Engineering (The Wagon Mound, No. 1) [1961] A.C. 388 (P.C.).

¹¹ Saul Levmore, “Unifying Remedies: Property Rules, Liability Rules, and Startling Rules,” (1997) 106 Yale L.J., 2149.

¹² Ibid., at 2150.

¹³ The continuity of right and remedy is explicit in German jurisprudence as the Rechtsfort-setzungsgedanke, the idea that “the injured right lives on in a claim for damages”; Walter van Gervan et al., Common Law of Europe Casebooks: Tort Law (2000), 753. The standard German legal textbook treats the idea of continuity as one aspect of—and therefore less comprehensive than—the idea of compensation (the Ausgleichsgedanke), because it views consequential damages as falling outside the idea of continuity; see Karl Larenz, Lehrbuch des Schuldrechts, Band I (Algemeiner Teil), 14th ed. (1987), 424. The implication of my argument in this chapter is that, from the theoretical perspective, continuity is the more fundamental idea.

¹⁴ Above, chapter 1.

¹⁵ “[O]bligations… are individuated according to the actions that they make obligatory,” J. Gardner, “What is Tort Law For? Part 1: The Place of Corrective Justice,” (2011) 30 Law and Philosophy 1, 35.

¹⁶ I owe this example to Lionel Smith.

¹⁷ The distinction between a duty and a required specific action tracks Kant’s obscure distinction between an obligation (“the necessity of a free action under a categorical imperative of reason”) and a duty “that action to which someone is bound. It is therefore the matter of the obligation.” Kant adds that “there can be one and the same duty (as to the action, although we can be bound to it in different ways.” Immanuel Kant, The Metaphysics of Morals, tr. Mary Gregor (1996), [6:222].

¹⁸ “That is rightfully mine (meum iuris) with which I am so connected that another’s use of it without my consent would wrong me.” Ibid., at [6:245].

¹⁹ “In all appearances, the permanent is the object itself, that is, substance as phenomenon; everything, on the other hand, which changes or can change belongs only to the way in which substance or substances exist, and therefore to their determinations. I find that in all ages, not only philosophers, but even the common understanding, have recognized this permanence as a substratum of all appearance, and always assume it to be indubitable.” Kant, Critique of Pure Reason, tr. Norman Kemp Smith (1929), A184, B227.

²⁰ Blackstone, IV Commentaries, 9.

²¹ Compare Warren A. Seavey, “Mr. Justice Cardozo and the Law of Torts,” (1939) 39 Colum. L. Rev. 20, 34.

²² Blackstone’s terminology of restoring the plaintiff’s right is not entirely felicitous, as it participates in the ambiguity of right as both something that a plaintiff has and a normative status that attaches to something that the plaintiff has. One should not think that the very description of the remedy as the restoration of a right shows that the plaintiff did not have what the remedy restores. Kant draws attention to this terminological imprecision in his discussion of external right. In Kantian terms, ownership involves possessing an object intellectually rather than empirically, because the essence of ownership is that it persists even when the owner is not in physical possession of the thing owned. For this reason, he writes, “it is not appropriate to speak of possessing a right to this or that object but rather of possessing it merely rightfully; for a right is already an intellectual possessing of an object and it would make no sense to speak of possessing a possess[ing].” Kant, above n. 17, [6:249] (translation slightly modified). In the same way here, the wrong is a deprivation of what is rightfully the plaintiff’s and the remedy restores to the plaintiff what is rightfully hers. For an illuminating treatment of remedies from a Kantian perspective, see Arthur Ripstein, “As If It Had Never Happened,” (2007) 48 Wm. and Mary L. Rev. 1957.

²³ As Kant observed in his comment about tort law:

I cannot acquire a right against another through a deed of his that is contrary to right (facto iniusto alterius); for even if he has wronged me and I have a right to demand compensation from him, by this I will still only preserve what is mine undiminished but will not acquire more than what I previously had.

Kant, above n. 17, [6:271].