1. Two conceptions of remedies
In this chapter I explore two ways of conceptualizing the relationship between the basis of the defendant’s liability and the remedy—that is, between what Peter Birks termed the causative event and the response.1 In the first way, originally formulated in Aristotle’s account of corrective justice and later elaborated in the philosophical tradition of natural right, the causative event is the reason for the remedial response. In the second way, paradigmatically set out in Kelsen’s pure theory of law, the causative event is the condition of the remedial response. For each of these two ways the causative event enters into the practical reasoning about the response in a different manner. In the first, the causative event is a condition of the response because it is the reason for it. In the second the causative event is the reason for the response because it is a condition of it.
Consider first the following observations from Aristotle’s account of corrective justice about the function of the judge in a civil action:
When people have a dispute, they have recourse to the judge. To go to the judge is to go to what is just, for the judge means to be, as it were, justness ensouled… The judge restores equality. As though there were a line segmented into two unequal segments, he takes away as much as the larger segment is greater than half the line and adds it to the smaller segment. And when the whole has been divided into two parts, only then, when they take what is equal, do they say that each has what is his own.2
Aristotle represents what properly belongs to each of the disputing parties as an equal segment of a line. The injustice—the causative event—consists of the defendant’s having taken part of the segment that properly belongs to the plaintiff, thereby destroying the underlying equality. The judge remedies this injustice by reattaching to the plaintiff’s segment the amount by which the defendant’s part exceeds the half-line that each should have.
In this representation, the causative event is the reason for the particular response. What the defendant has done to the plaintiff determines what the judge requires the defendant to do for the plaintiff. The defendant is now obligated to return what the defendant unjustly took from the plaintiff. Because justice between the parties obtains when the line is equally divided between them, the disturbance of the equality counts as an injustice, which the judge undoes by restoring the initial equality. Just as the causative event for liability consists in the defendant’s taking a segment of the plaintiff’s line, so the remedy is the retaking of that segment from the defendant and reattaching it to the plaintiff’s part of the line. If one were to ask Aristotle’s judge why he redivided the line in this way, he would answer that this was the only just response to the defendant’s action.
One can contrast Aristotle’s conception of the remedy with the one formulated by Hans Kelsen. For Kelsen, the legal order stipulates the conditions under which certain coercive acts function as sanctions that react against illegal acts or omissions. What counts as a wrong or delict is an act or omission that the legal order makes the condition of the coercive act; conversely, what counts as the sanction is the coercive consequence that the legal order attaches to that act or omission. Thus, the relationship between causative event and remedy is solely that of condition and consequence: “Given, as condition, behaviour opposite that which the norm establishes, then a coercive act is to be forthcoming as consequence.”3
Aristotle and Kelsen link the causative event to the remedy in entirely different ways. For Aristotle, the causative event is a reason for the remedy because it is an injustice that the judge, as justness ensouled, must reverse. For Kelsen, the notion that “a moral value element is immanent in the concepts of delict and sanction”4 is untenable, because only the positive legal order imbues an act or omission with the character of a delict. To put the point another way: for Aristotle, the causative event is the condition of a remedy because of the kind of event it is, whereas for Kelsen, the event counts as causative only because it is the condition of a remedy. In Kelsen’s words:
[A] definite action or refrainment is not—as traditional jurisprudence assumes—connected with the coercive act because this action or refrainment is a delict, but a definite act or refrainment is a delict because it is connected with a coercive act, that is, with a sanction as its consequence. No immanent quality, no relation to a meta-legal natural or divine norm is a reason for qualifying a specific human behaviour as a delict; but only and exclusively the fact that the positive legal order has made this behaviour the condition of a coercive act—of a sanction.5
This juxtaposition of Aristotle and Kelsen brings out the contrast between relating the causative event to the remedy as a reason or as a condition. Aristotle and Kelsen are led to these differing conceptions by the differences in their projects. Aristotle’s interest is in presenting the form of justice that is immanent in the relationship between the parties in private law. Integral to this form of justice is the idea that the direct relationship of the parties characterizes both the causative event and the remedy—indeed, that it characterizes the remedy because it characterizes the causative event. Thus, the reason for thinking that the defendant’s act is an injustice to the plaintiff is also a reason for thinking that the remedy that corrects the injustice has to have the same relational structure as the injustice. Kelsen, in contrast, is concerned not with justice but with the posited nature of law. Because a norm can be legally valid even if it is thought to be unjust, the connection between the causative event and the remedy must be understood in terms of condition and consequence with respect to the coercion that the positive law mandates. Whereas Aristotle views the relationship of causative event to remedy as immanent to the structure of justice between the parties, Kelsen regards that relationship as exhibited through “an analysis of the immanent meaning of the legal order”6 as a system of positive law. The injustice that is paramount for Aristotle is therefore irrelevant to Kelsen.
The sections of this chapter that follow develop some of the implications of each of these conceptions of remedies. I first elaborate, in section 2, corrective justice’s conception of the relationship between the injustice and the remedy. Corrective justice integrates the injustice and its rectification by construing the latter as undoing the former. The injustice is not an occasion for a court to do what is best, all things considered, given the present situation of the parties. Rather, even after it has occurred, the injustice remains the decisive feature in the parties’ relationship, because the injustice to be corrected determines the available range of remedies that can correct it. What is rightfully the plaintiff’s is the subject matter both of the right and of the remedy, the right entailing a duty of non-interference, the remedy a duty of restoration or reparation. Because what is rightfully the plaintiff’s remains constant throughout, the remedy is the continuation of the right; together they make up a single unbroken juridical sequence. In postulating so intimate a relationship between right and remedy, corrective justice merely draws out what the law takes for granted. Long ago Learned Hand formulated this relationship as a truism when he characterized a remedy as “an obligation destined to stand in place of the plaintiff’s right, and be, as nearly as possible, equivalent to him for his rights.”7 My goal is to explicate the sense in which the remedy is equivalent to, limited by, and continuous with the injured right.
I then turn to the conception of the remedy as merely conditioned by the causative event. Kelsen’s account of this conception is part of his elucidation of what it is for a norm to have the form of positive law regardless of the norm’s content. This indifference to content means that one cannot extrapolate from his account anything that would address the lawyer’s interest in what the legal system should look like. In this respect there is an asymmetry between Kelsen’s account and Aristotle’s. For, as we saw in Aristotle’s treatment of the segmented line, Aristotle thinks that the remedy has to match the bipolar structure of the injustice that it corrects; accordingly, his approach reproduces, although at a very high level of abstraction, the lawyer’s concern for the normative intelligibility of the law’s content. For Kelsen, in contrast, the law is a posited order that can have any content. Kelsen allows that actual legal systems do have remedies that purport to right the wrong by requiring the defendant to repair the damage illegally inflicted upon the plaintiff,8 but he considers these to exemplify a kind of logical error in which the way a person behaves (a statement of what is) is mistakenly taken to contradict a norm (an statement of what ought to be).9 In Kelsen’s view, from the standpoint of positive law the illegal act means nothing more than that the sanction ought to be forthcoming. Inasmuch as the sanction is an operation of the legal order, the illegal act should therefore be understood not as the negation of law but as its condition.
From the lawyer’s standpoint Kelsen’s observations may suggest an unpromising framework for considering the role of remedies within a system of private law. Sophisticated legal systems, after all, are not indifferent to their own content. Rather, they view that content as something that makes at least incipient sense from a suitably defined moral point of view. Within private law, events are causative of liability because they are thought to work some sort of injustice toward the plaintiff. Nonetheless, torn from its context within Kelsen’s pure theory, the idea of the causative event as a condition of the remedy is no stranger to contemporary discussions of remedies. It surfaces whenever the remedy is seen not as normatively continuous with what makes the causative event an injustice, but as the locus of an independent enquiry. By breaking the normative connection that might exist between the remedy and the causative event, such an enquiry treats the latter as a condition but not a reason for the former.
To the extent that remedies exemplify this conception, they ignore or go beyond the injustice that calls them into being. Such remedies are not concerned—or at least not concerned only—with responding to whatever aspect of the parties’ interaction forms the basis for liability. In the language of the old remoteness cases, what goes to culpability is viewed as distinguishable from what goes to compensation (or to other remedial impositions).10 This disjunction between the injustice of the causative event and the remedial response creates a tension in which the injustice occasions the remedy without grounding it. On the one hand, the causative event is seen as some sort of injustice that requires a remedy; yet on the other, the remedy’s operation is independent of the reason for thinking that the causative event was an injustice to begin with. Thus, so far as the remedy is concerned, the injustice of the causative event is both indispensable and superfluous.
Section 3 explores the problematic nature of this conception by reference to a conspicuous example of it, the indemnified injunction. This kind of injunction allows the plaintiff to bring a nuisance to an end only if the defendant is compensated for costs imposed by the injunction. Although absent from the traditional corpus of remedies and rarely invoked in practice, the indemnified injunction has received extensive attention in the economic analysis of law. It is sometimes even regarded as suggesting a new “grand theory of remedies”:11 by breaking the “sensible convention” of “not asking those in the right to pay when they are wronged,”12 it is supposed to contribute to a more unified theory of remedies that combines rights, remedies, and bargains around those rights and remedies. Whatever its virtues on that score, the remedy operates independently of the injustice that lies at the root of the determination of liability, as its breach of the “sensible convention” shows. Indeed, the remedy obscures the very nature of the injustice that gives birth to it. In these respects it is characteristic of the conception of the remedy as merely conditioned by the injustice.
Finally section 4 aligns the distinction between these two conceptions with the recent contrast made by remedies scholars between monistic and dualistic approaches to remedies. The focus within corrective justice on the normative ground of the remedy may cast light on the tension—present in both monism and dualism—between the centrality of the infringed right to the remedy and the introduction of new considerations at the remedial stage. Corrective justice reconciles this tension by situating the right within the system of rights, thereby allowing systemic considerations to be introduced at the remedial stage. In this way, I shall suggest, the corrective justice conception may narrow the gap between these two approaches.
On what grounds does corrective justice posit a continuity of right and remedy?13 This continuity flows from the mutually complementary ways in which corrective justice conceives of the structure and the content of the private law relationship.14 The structure consists in the parties being correlatively situated as doer and sufferer of the same injustice. The content consists in the plaintiff’s having a right and the defendant’s being under a correlative duty, so that injustice occurs on the defendant’s breach of a duty correlative to the plaintiff’s right. The continuity of the remedy reflects the persistence of this structure and content in the aftermath of the injustice.
This structure and content go to the reasons for holding a particular defendant liable to a particular plaintiff. As a matter of structure, the normative considerations that appropriately govern finding of liability are those that implicate both parties in their relationship. As a matter of content, these considerations presuppose that the injury is to something to which the plaintiff has a right and with respect to which the defendant is under a correlative duty. Being juridical manifestations of the parties’ self-determining freedom with respect to each other, right and duty are the ingredients, and not merely the conclusions, of legal argument about the terms of the parties’ interaction. The task of private law is to work out the meaning of these rights and duties so as to make them coherent with one another, reflective of the idea of self-determining freedom, and applicable to the myriad concrete situations of human interaction.
In correcting an injustice, the remedy has the same correlative structure as the relationship itself, because a relational injustice cannot be corrected non-relationally. Accordingly, the remedy operates simultaneously against the defendant and in favor of the plaintiff. In an award of damages, for instance, the plaintiff is entitled to receive the very sum that the defendant is obligated to pay. If the law took money from the defendant without giving it to the plaintiff, the injustice suffered by the plaintiff would remain uncorrected. Similarly, if the law gave money to the plaintiff without taking it from the defendant, the injustice done by the defendant would remain uncorrected. And even if the law took money from the defendant and gave an equivalent amount of money to the plaintiff in separate operations (say, by requiring payment into one government fund and out of another), the injustice as something done by the defendant to the plaintiff—and therefore as being of relational significance between them—would still remain uncorrected. Structurally, the remedy is the mirror image of the injustice. Both feature the same movement from one pole of the relationship to the other, so that, to the extent possible, the relationship ends up as free of injustice as it was at the beginning.
The correction maintains not only the structure but also the content—the right and the correlative duty—of the parties’ relationship. What is correctively just about a private law relationship is the absence of breaches of any duty correlative to another’s right. Conversely, injustice lies in an inconsistency with the plaintiff’s right that is imputable to the defendant. The point of the remedy is to eliminate this inconsistency. In this progression from justice to injustice and back again, the same right (and, of course, the same correlative duty) is the focus of the law’s attention. The right survives the injustice and continues into the remedy, which is nothing other than the judicially crystallized post-injustice shape of the right.
Now one might think that identifying the remedy with the pre-injustice right (and its correlative duty) overstates the closeness of the connection between them. Suppose that the defendant has tortiously destroyed an object belonging to the plaintiff and now has to pay the plaintiff a sum equal to the object’s value. Before the destruction the defendant was under a duty to abstain from exposing the object to an unreasonable risk. After the destruction the defendant cannot be under this duty, because the object no longer exists. The action now required of the defendant is not abstention from creating an unreasonable risk, but transfer to the plaintiff of a certain sum of money. A duty mandates a specific action, and if the specific actions mandated are different, so are the duties.15
A similar argument can be made on the rights side. A right gives its holder the freedom to act within its bounds. Yet the actions permitted before the injustice may differ from those permitted after the injustice. For example, my right to bodily integrity cannot be alienated, but it may be possible for me, within restrictions set out by the positive law, to assign the damages claim that arises from the injury.16 The fact that after the injustice one has the freedom to do actions unavailable previously indicates (so the argument would go) that the different freedoms reflect different rights rather than the continuation of the same right.
That the variety of actions prohibited or permitted attests to a variety of duties and rights is an appealing but misleading notion. It is not the case that if the specific actions mandated by the law are different, so are the legal duties. Different actions can be required by a single duty and a single action can be required by different duties. An example of the latter is that the same specific action may be required both contractually and delictually. As for the former, suppose that the defendant, being under a duty of care as a bailee with respect to an object belonging to the plaintiff, was obliged both to keep his car locked as he transported the object and to water the object regularly. The law would regard these two different actions as different ways of fulfilling the same legal duty, not as the fulfillment of two different duties. The fact that there are innumerable ways in which a duty could be breached does not mean that each possible breach is the breach of a different duty.17
A legal duty takes its character from the legal category that informs it, not from the specific action that it prohibits or requires. The same action required as a matter of both contract law and tort law is governed concurrently by two duties, one for each possible ground of liability. In my example of the bailment, the legal duty is that of a bailee, not that of a person who waters an object or transports it in a locked car.
Considered as a theoretical issue, the relation between right and remedy engages a still higher level of generality. Theory is concerned not with particular grounds of liability and their respective remedies, but with the nature of liability as such and the corresponding conception of a remedy. As noted above, under corrective justice the injustice that gives rise to liability is an inconsistency with the plaintiff’s right that is imputable to the defendant. At its most general, having a right in private law means that the right-holder is normatively so connected to the object of the right that another person is under a duty not to interfere with that object.18 The legal system lays down the grounds for acquiring and holding rights of various sorts—offer and acceptance for contract, animus donandi and factum donandi for gift, and so on. As long as these grounds obtain, the relationship of right and duty continues regardless of what the defendant has done to the object of the right. Only actions consistent with the holder’s right can terminate this normative connection, as when property is alienated or a contract is discharged by performance. Conversely, the right (and the duty correlative to it) always survives an injustice, which by definition is an inconsistency with the right.
Accordingly, the defendant who, in breach of her duty, destroys an object belonging to the plaintiff does not thereby destroy the plaintiff’s right to the object. The plaintiff remains linked to the defendant through a right that pertains to the object as an undamaged thing. Although the defendant’s wrong has modified the physical condition of the object embodying the plaintiff’s right, the right remains intact as the normative marker of the relationship between them with respect to that object. Even if the object no longer exists as a physical entity, the parties continue to be related to each other through the object’s normative connection to the plaintiff and the consequent duty on the defendant to act in conformity with that connection. Instead of being embodied in the object itself, the right and its correlative duty with respect to the object now take the form of an entitlement and have the defendant furnish the plaintiff with its value.
The survival of the right means that its correlative duty also survives. The defendant’s breach of duty did not of course bring to an end the duty with respect to the plaintiff’s right, for, if it did, the duty—absurdly—would have been discharged by its breach. To be sure, the specific action required of the defendant has been transformed by the defendant’s tort. Just as the plaintiff’s right is no longer embodied in the specific object, which has been destroyed, but in an entitlement to receive the object’s equivalent from the defendant, so the defendant’s duty is no longer to abstain from its destruction, which has already taken place, but to provide the plaintiff with the object’s equivalent. The specific action that the duty requires is different, but the defendant is not under a different duty. This is because, from a juridical point of view, what determines the nature of the duty is not the specific action that the duty requires but the right to which the duty is correlative. And what determines the right is the appropriate normative connection between the object of the right and the person holding it. So long as that connection persists, the right and correlative duty with respect to the object remain.
Thus, the right and its correlative duty continue to exist with different specific content before and after the injustice. Underlying the succession of specific characteristics of the right and its correlative duty is the relationship that the parties have through the plaintiff’s connection with the object of the right. That relationship remains identical throughout the metamorphosis that the defendant’s injustice has wrought in the object of the right. To put it in familiar philosophical terms, the diachronic identity of the right is merely a juridical exemplification of the category of substance as that which persists through change: during the legal relationship the existence of the right remains constant, but the way in which the right exists changes.19 Just as a person has different characteristics at different times of life while yet remaining the same person, so a right and its correlative duty have different characteristics at different points in their existence while yet remaining the same right and duty. Juridically, the parties step twice into, or rather stand continuously in, the same river.
Blackstone summed up the relation between right and remedy by stating that remedies “redress the party injured, by either restoring to him his right, if possible, or by giving him an equivalent.”20 Blackstone’s formulation is a paradigmatic expression of corrective justice. It implies three theses. The first is the thesis of identity, that the plaintiff’s injured right and the right restored by the defendant are the same right or its equivalent. One cannot regard a right as being restored if it is other than the one that the defendant wronged. The second is the thesis of limitation, that the remedy restores only the plaintiff’s right and does not give the plaintiff more than that right (or its equivalent). Thus, the reason for creating liability also limits it.21 The third is the thesis of continuity, that the plaintiff’s right survives the injury intact and continues to be the normative marker of the parties’ relationship. Because the right continues to exist, plaintiffs can justly apply to courts for the restoration of what remains rightfully theirs.22
These three theses are interrelated. Rights could not be enjoyed as domains of freedom unless the law secured them against wrongs by requiring wrongdoers to restore what they have injured (the identity thesis). However, because the relationship between the parties is one of equal freedom, the plaintiff’s freedom does not entitle the court to coerce the defendant into providing the plaintiff with a windfall over and above the restored right, for that, in turn, would be inconsistent with the defendant’s freedom (the limitation thesis).23 With the ideas of injury and restoration in place, one might wonder how the temporal gap between them is normatively bridged. For one might suppose that the occurrence of the injury puts an end to the plaintiff’s right, leaving the plaintiff without a basis for claiming what he no longer has. Perhaps all that the plaintiff can expect is an apology for the misfortune that the defendant caused.24