'Rights, Wrongs, and Injustices: Taking Remedies Seriously': 2018 Cambridge Freshfields Lecture (audio)

Good evening ladies and gentlemen, distinguished judges, friends of the faculty, colleagues, students.

I had someone ask me as we waled in could we not have the lecture outside but it is that sort of weather so it's very good to see you here this evening inside rather than making the most of it.

I'm Sarah Worthington for those who don't know me, and I'm delighted to welcome you to the Law Faculty for this fifth Cambridge Freshfields Annual Law Lecture.

This is a series of lectures generously sponsored by Freshfields and organised by the Cambridge Private Law Center, and it's one of our ambitions as the Center to facilitate more informed and lively debate about some of the fundamental and significant legal issues we face, so we're especially delighted this evening to have Professor Stephen Smith here to speak. He is eminently qualified to deliver exactly what we want.

I know in an introduction I should tell you something you don't already know about the speaker, but I'll start with the well-known. Steve Smith is the James McGill Professor in the Faculty of Law at McGill University. His academic career began with a BA in political science in Canada, followed by an LLB at the University of Toronto. He did well enough in that to then work as a Clerk to the then Chief Justice of the Supreme Court of Canada, the Right Honourable Brian Dixon. Then he looked overseas and somehow rather inexplicably he ended up at that other place, undertaking his DPhil in Oxford and staying on as a tutor and senior fellow at St. Anne's.

However if you examine his CV there were enough visiting appointments and lectures overseas during that stint in Oxford to enable a fortune-teller to predict an eventual move to his current home - the University of McGill in 1998.

Since then, and from that base at McGill, Steve seems to have ventured all over the globe. I know have a reputation for being able to get around, and Europe and Asia or perhaps predictable destinations, but if you look at Steve Smith's CV it reveals some very serious writing on Russian and Chinese contract law. I haven't read those. And his books and writings have earned him various academic awards and I won't go through them all.

My very first introduction to Steve Smith came when I encountered his book 'Contract Theory' in the Clarendon Law Series - quite a special book. But there's another earlier book - Introducing Common Law Concepts, one that's no doubt sharpened by his role at McGill that has him teaching both civil law and common law, which he's done for an extended period of time. The very particular insights that that sort of exposure and focus must inevitably produce have no doubt influenced his take in his forthcoming book rather enticingly entitled 'Rights, Wrongs, and Injustices: The Structure of Remedial Law'.

In this book Steve seeks to explain remedial law in terms of general principles not historical categories - something we're not so used to. It's a rich hinterland so I'm sure that this evening we're about to have some of the product of that thinking revealed in tonight's lecture - 'Rights, Wrongs, and Injustices: Taking Remedies Seriously'.

The plan is that Steve will speak for about 45-50 minutes and then we'll have questions, and then we'll go upstairs to the ground floor for drinks. Everybody here is warmly welcomed to those drinks, but without more ado I welcome you Steve.

Thank You Sarah for those kind words and thank you to Freshfields for sponsoring this. when I was in university I had a summer job as a tour guide, on bicycle tours and we used to say that the secret of a good tour was expectation management and I used to tell the novice guides - I said when you're explaining the day's route you make it sound as bad as you can if you made it sound one bit worse they wouldn't do it and then at the end of the day they will be really happy and because it all turned out so much better than they expected. Now on that background I don't think Sara did a very good job. She sort of suggested there's all going to be downhill cycling but I promise you there's going to be a few bumps and even a few long up hills in this lecture.

The law imposes itself on citizens in three main ways.

The first is by enacting or recognizing substantive rules. For example, there are rules that stipulate general legal duties— 'Everyone has a duty to perform their contracts'—and there are rules that tell individuals what they must do if they wish to create or modify such duties—'A contract is created by an offer and an acceptance'.

The second way the law imposes itself is by courts issuing rulings. Typically, these rulings direct individuals to do or not to do specific things. For example, a court might order a defendant to pay the claimant a sum of money or to return the claimant's property.

The third and final way that the law imposes itself on citizens is by imposing sanctions. For example, legal officials may throw citizens in jail or seize their property.

The first and the third of these methods—enacting rules and imposing sanctions—have been studied extensively by legal scholars. Most general theories of law are theories about rules or sanctions or some combination of the two.

But the second method—issuing rulings—has been largely ignored.

As I hope to show in this lecture, there is a lot of law that deals with rulings. This law is studied in law faculties, and applied every day in the courts.

But we have not asked the big questions about it that we have asked of other areas of the law.

In my talk today, I want to raise some of these questions. I will also try to answer them; but what I am really interested in are the questions. Whether or not you agree with my answers, I hope to convince you that the questions are important.

You will have noticed that this talk is entitled 'Taking Remedies Seriously' not 'Taking Rulings Seriously'. I adopted this title because I will focus on one particular category of rulings, which I call remedial rulings, or just remedies. Some of what I will say today applies to rulings in general, but most of the talk focuses on remedial rulings, and, in particular, private law remedial rulings.

I will address 2 questions:

What is a remedy?

When are remedies available? What are the grounds on which courts grant remedies?
But before I turn to these questions, it might help, to set the scene, if I say a few words about how I came to be asking them.

The short answer is that I am writing a book on remedies. The longer answer is that my interest in these questions originated with two puzzles.

The first puzzle was pedagogical. A few years ago, I was asked to teach a course on 'Private Law Remedies'. I assembled a list of materials based on the standard textbooks. When it came time to prepare my lectures, I adopted my usual approach of trying to find a common thread or principle to tie the materials together.

I failed initially. A large part of the course focused on specific relief: these rules seemed to be concerned exclusively with the question of when courts would issue specific relief. The remainder of the course was mostly about damages: these rules seemed concerned not with the availability of damages awards, but with their content. It was not obvious to me what these rules had in common—never mind what rules on things like self-help or rescission, which are also discussed in most remedies texts, had in common with the rules on either specific relief or damages.

It is true that all these rules were remedial in that they were a cure of some sort for a problem of some kind. But the same is true contract law, tort law, and indeed of law generally. Law is a remedy for the problems that exist in a world without law.
So I was puzzled by the course that I was teaching.

Eventually, however, reflection on this puzzle led me to think that there was something distinctive about at least some of the rules that I was teaching. In particular, it seemed to me—and it still seems to me— that the rules governing specific relief were different from most of the rules that I was teaching in other, substantive law, courses.

The rules on specific relief are fundamentally rules for courts—they tell courts how to act. Stated differently, these are arguably public law rules—their concern is the actions of state officials.

Of course, all legal rules are applied by courts. However, the rules governing specific relief are not merely applied by courts: they tell courts how they should act. In particular, they tell courts what they should do when individuals come to them seeking certain kinds of assistance. For example, they tell courts that they should not grant requests for specific performance if damages would be adequate.

In contrast, the rules that make up substantive law—for example the core rules of contract and tort law—are different. These rules are addressed to citizens: they tell citizens how they should behave towards one another. They say things like, 'fulfill contractual promises,' 'do not trespass,' 'do not take others' property', and so on.

This distinction seemed to me, and still seems to me, important. It is important because the question of how citizens should treat one another is different from the question of what courts should do when citizens come to them for assistance. Different considerations apply.
Let me give a non-legal example to illustrate this point:

A few years ago, when my children were still living at home, my younger son came to me fuming mad. He was mad at his older brother because his brother had promised to help him with his homework, but was now refusing to do this. He wanted me to do something about it. I called in my older son and I interrogated him (this was in Quebec, a civil law jurisdiction.)

I determined that the promise had been made, indeed my older son admitted as much. What had happened was that they subsequently fell into a disagreement about an unrelated matter.

So what did I do? My younger son wanted a specific performance remedy—he wanted me to order his brother to help him with his homework. But I refused. Why? I did not refuse because I thought my older son had a good excuse: I thought he should help my younger son with his homework. The law in in our family is that promises are meant to be kept.

I refused because if I ordered specific performance the two of them would be back before me, arguing again, within about 10 minutes. So I decided on an alternative remedy. It was not damages—our family is not that legalistic—but it was an attempt to find a substitute, as best I could. I think I ordered my older son to do some of the younger son's chores—doing the dishes, I think—so as to give the younger son extra time to work on his homework.

This is a simple example. But it illustrates, I think, the distinction between substantive and remedial law. The reason that I refused specific performance had nothing to do with whether or not my son should keep his promise. As I said, the substantive law in our family is that promises should be kept. I refused for remedial-law reasons—reasons that applied uniquely to me, the court.

Reflection on this distinction, let me to conclude that the most useful definition of a remedy is that it is a judicial ruling, and that a private law remedy is a ruling intended to resolve a private law dispute. Remedial law, in this view, is the law that governs the availability and content of such rulings.

This definition led me to what was the real pedagogical puzzle: which rules belong in this category? Which private law rules are rules for courts and which are rules for citizens? In particular, where do the rules on damages and restitution fit in this scheme? Are they directed fundamentally at citizens or at courts?

The answer is not obvious; indeed, the question seems barely to have been asked. Courts and commentators constantly refer to liabilities to pay damages or to make restitution, but it is rarely clear whether they mean liabilities to fall under substantive duties to pay damages or liabilities merely to being ordered by a court to pay damages—or whether the answer makes a difference. More generally, books on remedies rarely ask what, if anything, distinguishes the rules that they discuss from the rules that are taught in substantive law courses. And of course most of the rules taught in remedies courses are also taught in substantive law courses.

The first puzzle, then, was to determine the content of remedial law.

The second puzzle was philosophical. When I started teaching remedies, I also taught jurisprudence. Not surprisingly, I became interested in what the jurisprudential literature had to say about judicial rulings. What I found was that the literature had very little to say.

Indeed, the question of why courts issue rulings at all, and in particular why they issue rulings that direct defendants to do things has barely been raised.

And the answer is not obvious. Why bother telling defendants to do things—for example, 'pay the claimant $100'— when the law has, or could have, substantive rules that say the same thing and sanctions that it can apply when the rules are not followed. The ruling seems to do nothing more than repeat the rule.

Reflection on this puzzle led me to think that we lack a satisfactory account of the nature and role of legal rulings. Further, as I thought about the ways in which rulings differ from rules and sanctions, I became convinced that understanding these differences was critical to understanding why courts make the particular kinds of rulings that they make. In short, the two projects—understanding private law remedies and understanding rulings—came together.

The book that I am writing is the outcome of that merger. The book is not a treatise. It is fundamentally an argument for taking its subject-matter seriously—for asking serious questions about what courts are doing when they issue rulings.

The argument has two prongs. The first prong, which is my focus today, is a response to the pedagogical puzzle. This response seeks to establish the scope and structure of remedial law, in particular private law remedial law.

The other prong of the argument is a response to the jurisprudential puzzle. The core idea here is that rulings, and in particular rulings that require defendants to do things, provide distinctive reasons for action—reasons different from those provided by rules or sanctions.
I cannot explore this argument in detail today. But I thought it might be useful if I gave you a couple of examples—again, non-legal examples—that illustrate some of the differences between rules, orders, and sanctions.

Household example: In my household, my wife and I employ each of the methods that the law employs—we employ rules, orders, and sanctions.
For example, we have a rule in our family that you must not throw food at the dinner table. If this rule is broken, my usual response is to issue an order: 'stop throwing food!' And if that does not work, my next usual response—at least when my children were younger—was a sanction, for example, sending the offender to his or her room.

The question is: what is the point of the order? It appears to just repeat the rule. Why bother?

It is sometimes suggested that the order is a reminder or clarification of the rule. But that seems implausible: the rule is clear, well-known, and the order is expressed as an order, not as a clarification or declaration.

It is also sometimes suggested that the order is a warning or threat of a sanction. But this also seems implausible: an order is not expressed as a warning, it says nothing about the possible sanction, and in many cases orders are given even when there is no possibility of sanctions. I still occasionally issue orders to my son, even though he is now 6' 5” and there is no chance that I am going to sanction him.
So why do I issue orders? The reason, I suggest, is that I want to invoke a distinctive kind of authority—in particular, a kind of authority that is different from that on which I rely when I enact rules.

Rules like 'don't throw food at the table' are basically statements that a duty exists: 'everyone has a duty not to throw food'. In contrast, an order is a command: 'stop throwing food'. When I announce a rule, my hope is that my children will accept that what it says is true—namely that they have the duty that the rule declares. But when I issue an order, I am asking for obedience. The authority to declare duties and the authority to command obedience are different.

This difference is reflected in ordinary practices. If my son questions the no-food-throwing rule, I will probably respond by trying to explain why the rule expresses a valid duty. So I might explain that throwing food is wasteful, or can lead to injuries, or inhibits morally uplifting dinner-table conversations. I might also respond by explaining that by virtue of my age and experience I am an authority on such duties.

I would offer these explanations in the hope that my son will accept that the rule actually does what it purports to do, namely to state a valid duty. But if my son continues to refuse to comply with the rule, then I will usually switch to the different kind of authority embodied in orders: 'Stop throwing food”.'

When I do this, I am invoking my presumed right to be obeyed, regardless of the merits of the ordered action. Like many of us, I often make this switch to a different kind of authority explicit. I say: 'Fine, I don't care what you think (of this rule): just stop throwing food!'
The lesson of this story is that there are often good reasons to issue orders even where they merely replicate the content of a rule.

We can also tweak this story to illustrate that, in some circumstances, we might want to use an order not just in addition to a rule, but instead of a rule.

When my children were younger, if they threw food at the table even after I ordered them not to, then, usually, a sanction would follow—in our family, the sanction was usually being sent to their room. No doubt this is considered bad parenting today. My interest, however, is in how the sanction—the punishment—was communicated.

One possibility would be to enact a rule to the effect that anyone who throws food has a duty to go to their room. Our household never had a rule like this. Nor do any legal systems that I know of. You never see rules that impose duties on wrongdoers to perform actions that are intended as punishments.

What you find, instead, is that punishments are imposed by judicial rulings. If my son was throwing food, I would order him to his room; and when citizens commit crimes, it is courts, or their delegates, that order them to pay fines, go to prison, and so on.
Why don`t we use rules to impose punishments? Why don't we have substantive rules that say things like 'anyone who parks in a handicap zone has a duty to immediately pay the state $300'?

It is true that few offenders would voluntarily comply with such rules. But some might; in any event, if wrongdoers should pay fines, you would think we would have legal rules that say this. But we don't: we just use orders.

Why? The reason, I suggest, is that we don't think wrongdoers have duties to punish themselves. Whatever justification exists for punishment (retribution, deterrence, etc.), it is a justification not for wrongdoers punishing themselves, but for the state imposing punishment on wrongdoers.

Indeed, if we had legislation that imposed a duty to pay $300 if you park in a handicap zone, it would be self-defeating. The rule would be interpreted as imposing a tax or a fee on parking in handicap zones, rather than a fine. This interpretation would be adopted because it is the only way to make sense of the duty contemplated by the rule. A duty to self-punish is unintelligible, but a duty to pay a tax or a fee is perfectly intelligible.

These comments only scrape the surface of a complex issue. But they are sufficient, I hope, to get you to entertain the idea that there is something distinctive about orders; in particular, that we might want to use orders not just to support substantive rules, but also, in some cases, as alternatives to substantive rules.

Let me return, finally, to the two questions that I mentioned at the outset:

What is a remedy?

When are remedies available? On what grounds do courts issue remedies?

What is a remedy: As should be clear by now, my answer to the first question is that a remedy is a judicial ruling. And a private law remedy is a ruling that is intended to resolve a private law dispute.

In the remainder of this talk, I will focus on one type of private law ruling: a ruling that requires the defendant to do or not do something. I call these directive rulings or just orders. The main examples are specific performance, injunctions, orders to pay damages or a debt, and orders for the recovery of land or other property.

Directive rulings are the most common type of private law ruling, and understanding them is critical for understanding not just remedial law but, as well, for understanding substantive private law.

Practical implications: what are the practical implications of this definition?

First, it excludes from remedial law various rules that are discussed in any remedies texts.

For example, the rules relating to things like self-help or stipulated damages clauses are not, on this definition, part of remedial law. They are a part of substantive law. A stipulated damages clause is just a term in a contract.

The second implication is that some things that are not discussed in typical remedies' texts are part of remedial law.

In particular, a significant amount of the law governing private law defences is remedial. Many defences are not reasons for individuals to act differently, they are merely reasons for courts not to issue rulings.

So, for example, limitation periods typically leave substantive duties unchanged: they merely preclude courts from giving remedies.

The same is true, I argue, for many formalities, immunities, res judicata, settlement, abuse of process, and parts of the defence of illegality.

The third implication is that most of the rules discussed in typical remedies textbooks do belong there. In other words, I eventually came to the view that there was something in common between most of the materials in my remedies course.

To begin, the rules governing specific relief are, as I have already indicated, remedial. These rules tell courts when they should award specific relief.

The same is true of the rules governing orders to pay debts and orders for the recovery of land or property. There are not many such rules, but what rules there are, are rules directed at courts.

Most importantly, the law of damages and the law of restitution are, in my view, part of remedial law.

This classification is controversial because many writers believe that wrongdoers have substantive duties to pay damages—duties that arise at the moment of the wrong. Many writers also believe that individuals who have been unjustly enriched have substantive duties to reverse the enrichment—to make restitution—from the moment that they were enriched.

If this view is correct, then the law of damages and the law of restitution are part of substantive law—they tell individuals what they should do if they have committed a wrong or if they are unjustly enriched. In this view, an order to pay damages or restitution is the same as an order to pay a debt: it merely tells the defendant to do what he or she should have done already. Understood in this way, the only remedial law applied in such cases is the rule that if you refuse to comply with a substantive duty to pay a sum of money, then the courts will order you to pay that sum.

I once held this view myself. I am happy to discuss later why I have come to reject it, but for the moment I will just mention two reasons.
The first concerns damages. In the common law, it is clear law—and has been clear law for over 800 years—that it is no defence to a claim for damages that you have offered to pay the amount the claimant is seeking.

Suppose that I carelessly break your window. I then offer to give you $100, which is what it will cost to fix the window. You refuse the offer, and sue me instead, asking for $100 in damages. In my defence, I argue that I offered to pay you the money. My defence will be rejected.

If there were a duty to pay damages, this rule make no sense. Your refusal to accept the money would clearly be a defence.

Indeed, even if pay you the money—say I just send it to you in mail—then, unless that payment is part of a settlement, you will still get judgment for $100. I might get my money back through a set-off for unjust enrichment, but you will win the claim for damages.

As for restitution, if there were a duty to make restitution following an unjust enrichment—for example, if the recipient of a mistaken payment were under a duty, from the moment of the receipt, to return the money—then the failure to comply with this duty should be a wrong, and should support a claim for damages. But it doesn`t. Just as there are no damages for failing to pay damages, there are no damages for failing to make restitution.

For these and other reasons, the law of damages and most of the law of restitution is, in my view, remedial law. It tells courts—not citizens—what to do when faced with proof of a wrong or an unjust enrichment.

Why does it matter how we classify these rules? It matters for various reasons, but the main one is that the distinction is critical if we are trying to understand why we have these rules. If there is no duty to pay damages prior to an order, why not? Might it be—and this is in fact my view—that damages, or at least certain kinds of damages, have more in common with punishment than we normally think. If damages are something that courts impose on wrongdoers, then, just as in the case of punishment, it becomes much more plausible to think that they are intended, at least in part, to send a message to the parties.

I turn now to the second question: When do we get remedies?

This question has received little attention in the common law. A few scholars, most notably Blackstone, have suggested that all remedies are remedies for wrongs. Some other scholars—notably Peter Birks—have suggested that all remedies are responses to proof of a substantive right.

In my view, the answer is more complex: in my view, there are three basic causes of action in the common law—by which I mean three factual situations that, if proven by a claimant, will normally lead to a remedy. I describe these as rights-threats, wrongs, and injustices.

I cannot possibly defend this claim properly in a single lecture. Instead, I am going to do 4 things. First, I will briefly explain the meaning of each cause of action. Second, I will provide a single example of a remedy in each category. Third, I will say something about why courts issue orders in response to these events. Fourth, and finally, after setting out the three categories, I will explain where I think the remedies that I have not yet talked about fit within this scheme.

Rights-threats: The first and most basic cause of action is a rights-threat. A rights-threat arises where the claimant's substantive rights are under threat because the defendant is unwilling to comply with those rights. Where a rights-threat is proven, the courts typically respond by ordering the defendant to comply with the right. In other words, the typical response replicates the content of the defendant's substantive duty. It is a replicative remedy.

For example, suppose that you and I have made a contract, and as part of that contract you agreed to a non-competition covenant. Suppose that you are breaching the covenant. Your ongoing breach is a rights-threat|: it is clear evidence that you are unwilling to respect my contractual rights. And on proof of this unwillingness, a court will normally order you to comply with the covenant.

I describe the cause of action for this ruling as a rights-threat—not merely a right—because the threat is the reason for the ruling. A court will not order you to comply with my contractual right merely because the right exists. I need to show that you are unwilling to comply with that right.

A rights-threat is also different from a wrong. It is true that in my example you committed a wrong by breaching the covenant.
However, the relevance of the wrong, at least so far as the order to comply with the covenant is concerned, is simply as evidence of the threat: it is evidence of your unwillingness to comply with your duty.

Consistent with this interpretation, it is not necessary to prove a wrong to demonstrate a rights-threat. For example, if I can show that you are intending to breach the covenant in the near future, even if you have not yet breached it, then I can normally obtain an injunction—a so-called quia timet injunction—directing you to comply with the covenant.

It is also possible to commit a wrong without threatening a right. For example, if you accidentally committed a one-off breach of our covenant, a court would normally refuse to order you to comply with the covenant. They would refuse because while you infringed my rights in the past, my rights are not under threat for the future.

Why Rights-Threats? Why do courts issue orders in response to rights-threats? This is the same question that I raised earlier, when I gave the example, from my household, of an order to stop throwing food. That order is a rights-threat-responding order. And the reason for issuing such orders, as I explained, or at least illustrated, is to provide a new, and different, reason to do what the substantive law requires.

When courts issue orders, they rely on a different kind of authority from that on which the law relies when it enacts substantive rules: they are relying on the authority to command obedience. There is nothing surprising, then, about an order that directs defendants to do what they already had substantive duties to do.

Wrongs: The second private law cause of action is a wrong. By 'wrong', I mean a breach of a substantive duty, such as a breach of contract or a tort.

You might expect that my example here would be an award of damages. However, as I will explain in a moment, only some damages awards are responses to wrongs.

My example is therefore narrower: it is an award of nominal damages.

Of course, nominal damages are relatively uncommon. However, they are, I think, a clear example within what is, in general, a difficult category.

Why are they a clear example of a wrong-responding orders? Two reasons.

First, and most obviously, the only thing that you have to prove to obtain nominal damages is that a wrong occurred. If a trespass is proven, nominal damages are available.

Second, the sums awarded as nominal damages are, at the end of the day, arbitrary. It could be one pound, it could be 10 pounds: it does not really matter. This arbitrariness is what we should expect if these awards are responses to wrongs.

When an order is given in response to a rights-threats or, as I will explain in a moment, to an injustice, the appropriate judicial response is self-evident: the court should order the defendant to respect the threatened right or to reverse the injustice. But there is no logical response to a wrong. Just as there are many forms of punishment that could, in principle, achieve the aims that we currently pursue by fines and incarceration, there are many forms of private redress that could, in principle, provide a private law response to wrongs. As Peter Birks once remarked, the courts would not be acting inconsistently if their response to private wrongs was to order the wrongdoer's ears to be cut off.

In short, nominal damages are symbolic. And what they are meant to symbolise, is that the defendant wronged the claimant.

Why do courts issue wrong-responding orders? The real question here is not why do courts issue such orders. The real question is why aren't there substantive rules that require wrongdoers to do the things that such orders require. Why don't wrongdoers have substantive duties to pay their victims $1 immediately following the wrong. If such a duty existed, then the cause of action for an order of nominal damages would be a rights-threats. It would be a rights-threat because the only time courts would need to issue such orders is when wrongdoers failed to comply with their substantive duty to pay nominal damages. I think it is clear as a matter of positive law that no such duty exists. But why not? Why leave it to the courts to order payment of nominal damages.

The question is difficult. Briefly, however, the explanation, in my view, is that when the law responds to wrongs what it is doing, fundamentally, is communicating a message: it is saying that the defendant wronged the claimant. For that message to be communicated, it must be issued by a court. I noted earlier that criminal wrongdoers never have substantive duties to punish themselves: for punishment to be punishment is has to be imposed by an order. The same is true, I suggest, for private law's responses to wrongs. For damages to be a response to a wrong, they have to be imposed by a court.

Injustices: the third and final cause of action in the common law is an injustice.

The term 'injustice' is often used in a very broad sense; so broad that it could cover all possible causes of action. However, when used in its core sense, the term injustice does not encompass rights-threats or wrongs. Committing a battery, a trespass, or a breach of a contractual promise is a wrong, but it is not an injustice.

The label 'unjust' is basically the legal version of 'unfair', and it is properly applied only to actions that are allocating something. This is why we ask whether the tax system is just and why we ask whether a particular measure of punishment is just.
Now, I am not suggesting, of course, that courts provide remedies for every kind of injustice. As with the concept of a wrong, the law has a tightly circumscribed notion of what counts, legally, as an injustice. Indeed, the range of injustices recognized by private law is much narrower than the range of wrongs that it recognizes.

The example that I will use to illustrate this category is, again, a bit unusual. But even more than the category of wrongs, the category of injustices is controversial.

The example is legislative in origin. Most common law jurisdictions have legislation authorizing courts to issue orders dealing with maintenance and the division of matrimonial property following a marriage breakdown. In England, the relevant legislation provides that courts may make an order that 'either party to the marriage shall pay to the other such lump sum or sums as may be so specified'.

There is no suggestion in the legislation that the defendant must have had a substantive duty, prior to the order, to do what the order requires. The claimant merely needs to show that the allocation of the parties' assets following the breakdown is, broadly speaking, unfair.
The cause of action for such orders is appropriately described as an injustice. Courts issue these orders not because the defendant acted badly or threatened to act badly, but because the court thinks that the parties' assets are allocated unfairly, that is to say, unjustly.

Why do courts issue injustice-responding orders? As with wrong-responding orders, the real question in respect of injustice-responding orders is why we don't have substantive rules that require defendants to do what these orders require them to do. Why don't the subjects of matrimonial property orders have substantive duties to do what these orders require?

My example of the matrimonial property order suggests that one possible answer is that it is too difficult to draw up a rule that could effectively guide citizens. Any substantive rule would be impossibly complex. However, if this were the only reason that the law refused to enact such rules we would expect courts to respond by issuing declarations, not orders. As I mentioned earlier, duty-imposing rules are basically declarations of the existence of general duties. The individualised counterpart to a rule is a declaration, not an order. But the matrimonial property orders are not declarations; they are orders. Why?

Again, this is a difficult question. The answer, in my view, is that 'correcting injustices' is not an appropriate subject-matter for a substantive duty.

Our substantive duties are basically duties not to wrong others. Correcting injustices is a valuable thing to do, but failing to correct an injustice is not a wrong.

In my household, I am generally the dispenser of justice. But there are plenty of occasions when injustices go uncorrected because I am away or asleep or just because I think that preparing a nice meal is, tonight, more important than rendering justice. I don't think there is anything wrong, at least in principle, in allowing some injustices to go uncorrected. Nor, by the way, do we as a society think this is wrong. If providing justice were the only thing that mattered, we would shut down all the schools and hospitals and put all that money into building more courts. But we don't. We don't because while correcting injustices is valuable, failing to do so is not a wrong, or at least not a wrong in the sense that stealing or lying or breaking promises is wrong.

So when the law wants individuals to correct injustices, it uses orders, rather than rules, to do this. Of course, once an order is issued, the defendant has a duty to do what it says. Like wrong-responding orders, injustice-responding orders are creative orders: they create, at the moment they are issued, new duties. However, the duty they create is a duty to obey the order. Unlike rules, orders are not declarations of the existence of substantive duties. The only duty contemplated by an order is a duty to obey the court.

Recap and 4th Question: Let me recap: I have suggested that there are 3 causes of action recognized by the common law, I have given a single example of each, and I have said a few words about why courts make these orders. The final question is where do the remedies that I have not talked about fit within this scheme?

Let me start with the easier cases. There are a number of familiar remedies for which I think it is fairly clear that the cause of action is a rights-threat.

The remedies I am referring to are: orders to pay a debt, orders for the recovery of land or chattels, specific performance, and injunctions. There is a wrinkle or two that requires explaining in each case—which is why I did not use any of these orders as my example. But in each case, the order directs the defendant to comply with a substantive duty, and in each case what the claimant must show to obtain the order is that the defendant is not complying with the duty or is about to not comply.

Now to the harder cases.

Restitution. The cause of action for orders to make restitution, or at least for the core cases of orders to make restitution for impaired transfers—for example an order to return money paid by mistake—falls into my third category: injustices.

These orders are analogous, in broad outline, to the matrimonial property orders. Like the matrimonial orders, there is no substantive duty to do what the order requires. Failing to pay restitution is not a wrong. And as in the matrimonial property cases, what the courts are responding to, when they order restitution, is an unfair, or unjust, allocation of property. The court's order is intended to correct the injustice, which it does by reversing the transfer.

Finally: damages. Damages are complicated. And part of the reason they are complicated is that there are different kinds of damages awards. Specifically, there appear to be at least three kinds of damages awards, or parts of awards. These different kinds line up, conveniently, with the three causes of action that I have identified.

The first category is what I call substitutionary damages. Substitutionary damages are substitutes for specific relief.

Suppose that you are in breach of a contractual duty to build me a house. And suppose further that our contract has not been terminated, so that your duty is still binding. On these facts, my contractual rights are under threat: you are unwilling to comply with your substantive duty. Prima facie, the appropriate judicial response should be to order you to build me the house. But for essentially practical or administrative reasons, the courts are unlikely to make such an order. Instead, they will order you to pay me a monetary substitute for performance, typically a sum equal to the cost of hiring someone else to build the house.

This order is a substitute for specific performance, and its cause of action, accordingly, is the same as specific performance: a rights-threat.

The second category is consequential damages—these are awards, or parts of awards, that compensate for the losses caused by the defendant's actions. At one time, I thought such awards were similar to nominal damages—responses to wrongs. But I changed my mind. For three reasons.

First, and most obviously, it is not sufficient, to obtain such an award, to show that you were wronged: you must also show that, as a consequence of the defendant's action, you suffered a loss.

Second, the sums of damages awarded under this heading often bear no relation to the seriousness of the wrong. Trivial wrongdoing can lead to massive awards, and vice versa.

Third, courts make these awards in cases where they believe the defendant acted perfectly reasonably. In other words, in cases where there does not appear to have been a wrong in any ordinary sense of the word.

A famous example is the American case of Vincent v Lake Erie. The defendant tied his ship to the plaintiff's dock, without permission, to save it from being wrecked in a violent storm. The ship caused minor damage to the dock. The court said that the defendant acted perfectly reasonably in tying his ship to the dock. However, the court ordered the defendant to pay for the damage that he caused to the dock.

Vincent is often regarded as an anomaly. However, cases like Vincent are common. Any case where courts award damages instead of specific relief, and where they do this because the cost of complying with the substantive duty is out of proportion to its value, has the same structure as Vincent.

These cases are critical for understanding consequential damages awards. What they demonstrate is that consequential damages are, in broad outline, similar to the restitutionary awards that I discussed a moment ago.

The fundamental question addressed by consequential damage awards is how the law should respond to losses that one person inflicts on another. That question is a question of fairness or, more strictly, a question of justice. Of course, courts contemplating consequential damages do not usually ask explicitly whether it is 'fair' or 'just' to make the defendant liable for the claimant's loss. As in the parallel case of 'unfair enrichments', the law has complex texts for determining what counts as an 'unfair loss'.

Indeed, the rules governing liability for another's losses can be viewed as the flip-side of the rules governing liability for one's own gains. In each case, the relevant loss or gain may be a consequence of a wrongful act. But in each case the law's concern is not, fundamentally, the wrongfulness of the defendant's behaviour: it is the fairness of the loss or the gain.

The third and final category of damages awards is comprised of awards that are neither substitutionary nor loss-based. These are sometimes called 'vindicatory damages'.

Which damages awards fit into this category? The most obvious example, which I have already discussed, is nominal damages. Nominal damages vindicate the claimaint's rights by making clear that a wrong has occurred.

A second relatively obvious example is punitive damages. Like nominal damages, punitive damages are the court's way of saying that a wrong has occurred: the difference is that punitive damages indicate that the wrongdoing was particularly egregious.

Finally, I would also include within this category a variety of what I will call 'market price' damages awards. These are awards that are fixed at the market price or market rental rate of property or services, even where that sum exceeds the loss suffered by the defendant. For example, if you graze your cows on my fields without permission, I can get an order that you pay me the rental rate for the field. And I can get this, even if I would have never rented the fields to you or anyone else, and even if the grazing caused me no harm.

Punitive damages and market price awards are similar to nominal damages: they are responses simply to the defendant's wrongdoing. They are attempts to represent, in monetary form, that the defendant wronged the claimant.

Conclusion: Let me conclude with a bit of history. For most of the common law's history, private law was basically remedial law—it was rules about when you can get into court and what you can get from a court once you were in.

The recognition of substantive law—of rules telling citizens how they should behave in ordinary life—has been a slow process—indeed, it is still going on today. The courts and writers responsible for this process—most famously Blackstone, but continuing in recent times to writers like Birks—drew on many sources: moral theory, continental writers, civil law, and so forth. But their most important source was the existing law—and that law, as I said, was largely remedial law.

The result is that substantive law was derived, to a significant extent, from remedial law. This process has left many marks on the common law, but the most general is that the common law has never fully separated substantive from remedial law. Common law lawyers continue to view substantive law through a remedial lens.

This viewpoint explains why it is normal, in many common law countries, to begin contract law courses by studying remedies.

It also explains why we should not be surprised that it was a common law judge—Oliver Wendell Holmes—who famously defined a contractual obligation as a disjunctive obligation to perform or pay damages—and why an entire school of private law academics—the law & economics scholars—have built their careers around this definition.

In this lecture, I have argued that we need to move beyond this kind of reasoning: we need to take seriously the distinction between substantive and remedial law.

I have also tried to answer some of the questions that arise when we approach the law in this way; for example, the question of whether the law of damages is remedial or substantive.

Ultimately, however, what matters is not my answers. What matters is that the questions are asked.