 Good evening, ladies and gentlemen. Distinguished judges, friends of the faculty, colleagues, students. I had someone ask me as we walked in. Could we not have the lecture outside? It is really 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 5th Cambridge Freshfields y Llywodraeth Cymru. Yn ysgolwch gyda'r Llywodraeth Cymru, yn gyfaint o'r Llywodraeth Cymru, a'r Llywodraeth Cymru, yn cymryd cymryd cyrraedd cyrraedd, ac mae'n unrhyw o'r ymdweud o'r cynnig o'r llwythau cyrraedd o'r ddwylliant ac yn gweithio'r llyfr ymddangos cysylltio'r llyfr. Yn ymdweud, rwy'n gweithio'n gweithio o'r profiad Stephen Smith o'r cyfrwyr o'r cyfrwyr. Mae'n ddwylliant ymdweud o'r cyfrwyr o'r llyfr o'r cyfrwyr o'r cyfrwyr. Rwy'n gweithio'n gweithio, rwy'n gweithio'n gweithio'n gweithio, ac mae'n gweithio'n gweithio. Stephen Smith yw'r James McGill profiad yn y Llywodraeth Cymru yw McGill. Mae'r cerddau cerddau yn ymdweud o'r BAA yn ymdweud o'r Cymru yw'r Llywodraeth Cymru. Mae'n gweithio'n gweithio o'r cyfrwyr o'r collaw cyfrwyr o'r Cymru yw'r drwsgrwr Bryn Dixon. Mae'n gweithio'r cyfrwyr. Mae'n gweithio'n gweithio ac mae'n gweithio o'r llyfrwyr o'r cyfrwyr o'r cyfrwyr o'r Llywodraeth Cymru a'r cyfrwyr o'r Llywodraeth Cymru sydd yn gweithio'r cyfrwyr o'r Llywodraeth Cymru. Felly, yna'r cyfrwyr o'r Cymru mae angen i gyfrwyr yr oedd ac yn ymdweud o'r cyfrwyr a bod gyda'r hawdd yn Ocsford yw'r ffordd i'ch bwysig o'ch gweld yn eich hunig i'ch gweithio mynd i'r cynnig o gymhwynt呼f yn 1998. A sy'n yw, a daeth gyd yn mewn gweld yn Gweithio, Oedden nhw'n gweld yn ei gilydd yn y gloedd. Rwy'n rhaid i'r rhaid i'r cyflawn o'r cyflawn o'r gweithio, ac yw'r eisiau a'r eisiau i'r gweithio i'r gwybod, Ond roeddwn i'n adeiladau'r llwyrfyrdd H出去 i hwnnw, mae'r rheidiad eich rhywbeth yn rhwng roeddaeth a'r llwyrudaeth C ynghyd. Rhaen nhw'n gweld. Mae'r llwyrwyrdd i hwnnw yn rhesen i'r llwyrdd h Nokia'r hwylig iawn, wrth hyn yn effeithi nhw'n wych yn llwyrdd hwych yn hyn y byddwn i'r llwyrwyrdd hwylig ynghylch yn y Hwyng-ddylparwyr, ond mae'r llwyrdd hwylig iawn yn credu ar y cyfrieddol yma. There's another earlier book introducing common данff Wall 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 wrth gwrs, i rhan o'r llwyddiad i gynllun o'r rhondd, rhwng, a angrifonau, y cyfrifodau cyfan. Yn hynny, Steves sydd wedi cyflwyno cyfan rhwng gyfrifodau o gynllun o gynnwysol yn y cyfrifodau yn y cyfrifodau ac yn y cyfrifodau. Ac mae'n rhan o'r llwyddiad. Mae'n gweithio'r llwyddiad o'r rhwng cyfrifodau, felly dyma'r hwn mae'n edrych o'r gweithio'r llwyddiad i'r rhwng gyfrifodau yn cael ei wneud wedi'i ei wneud i'r rhaid i hyn y dyfodol. Mae'r gael y mae Stephen yn ystod o fynd o gweithio mewn 50 o bydderei, a gweithio'n pwysgol, a gweithio'n gael y ddweud o'r bobl arall. Mae'n rhaid i fynd i'r gweithio i'r llwyffydd, ond yn unrhyw o'r cyffredin o'r rhaid i'r Sefydliad. Rhaid i'r hyn, Sarah. Yn rhoi'r cyffredinol ac yn enw'r gweithio ar gyfer ysgrifedd. Felly, roeddwn i wneud y Greul loading o gyllid gyda cyfnod byddur, cyfnod byddur cyfnod byddur, a rydyn ni'n dweud y gydag y cyfnod byddur gan y maen nhw'n gweld yw ganu amlinellfa, ac rydyn ni'n dweud â'r peth arfyniadau nôl. Rydyn ni'n dweud dus yn stydd y gadeig. Mae gweithio ni'n dweud ychydig maen nhw gweithio gydag ymgylched cynghoriynau â gan chi genni arnyn nhw'n dweud â un iddiad ygaf i ddweud. Llywodraeth, i gael gweithio, maen nhw'n fawr yn ddiweddol yn dweud bod yn gweithio'n gweithio. Mae'r cyfrannu, rwy'n gweithio'n gweithio'n gweithio'n gweithio gweithio'n gweithio, yn roi'n erioedr y gallu'r gweithio'n gweithio'n gweithio'n gweithio, ac rwy'n cael ei weld wedi'u gwahodau a'r ysgwrdd yng Nghymru sydd wedi'u gwahanol, oedd y cyfrannu ymlaen. Yn y byw y mynd i'r cyfrannu, yna'r cyfrannu, ac yn ddweud credu trwy gwrthag. Yn ystod yn ddullu cerddurellan o ddweud cyfnoddau. Mae'r ddweud yw'r ddweud yw'r ddweud gennynol o ddweud. Mae'r ddweud ar y ddweud i gweithio'r arddangos. Mae'r ddweud eich ddweud ar y ddweud yw'r ddweud yw'r ddweud ar y cyfnoddau sy'n rhyw gwneud o'r ddweud. Mae'r ddweud yn ddweud yn ddweud i gydag a'r ddweud. 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. So, for example, legal officials might 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. Now, as I hope to show in this lecture, there's a lot of law that deals with rulings. And this is law that students study here and that's applied every day in the courts. But we have not asked the big questions about it that we've asked about 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'm really interested in are the questions. Whether or not you agree with my answers, I hope to convince you that the questions are important. Now, you have noticed that this talk is entitled taking remedies seriously, not taking rulings seriously, so I should explain that. It's because I'm focusing on a particular category of rulings, which I call remedial rulings or just remedies. Some of what I say today applies to rulings generally, but most of the talk focuses on remedial rulings and in particular private law remedial rulings. And I'll address two broad questions. First, what is a remedy? And second, when are remedies available? On what grounds do 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. Now, the short answer is that, as Sarah said, I'm 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. So I put together a list of materials based on the kind of standard textbooks. And when it came time to prepare my lectures, I did what I usually do. I tried to find a common thread or principle or question to tie the materials together. And initially I failed. A large part of the course focused on specific relief. These rules seem 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 seem concerned not with the availability of damage awards, but with their content. It wasn't 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 textbooks, had in common with the rules on either specific relief or damages. Now, it's true that all these rules are remedial in the sense that they're all a cure of some sort or a problem of some kind or another. But the same is true of contract law or tort law and a deed 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 my other substantive law classes. The rules on specific relief are fundamentally rules for courts. They tell courts how to act. State of differently, they're arguably public law rules. Their concern is the action of state officials. Now, of course, all legal rules are applied by courts. But the rules governing specific relief aren't just applied by courts, they're telling courts how they should act. In particular, they tell courts what they should do when individuals come to them seeking assistance. For example, they tell courts 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 your contractual promises, do not trespass, do not take other's property, and so on. This distinction seemed to me and still seems to me important. It's 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 the point. A few years ago, when my children were still living at home, my younger son came up to me one evening 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 so. He wanted me to do something about it. I called in my older son and I interrogated him. I live in Quebec. It's a civil law jurisdiction. I can do that. 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 older brother to help him with the homework. But I refused. Why? I didn't refuse because I thought my older son had a good excuse. I thought he should help my younger son with the homework. The law in our family is that promises are meant to be kept. I refused because if I ordered a specific performance, then as any parent here knows, the two of them would have been back before me, arguing again within about 10 minutes. So I decided on an alternative remedy. It wasn't damage. Our family is not quite that legalistic. But it wasn't 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, do the dishes or something, so he'd have extra time to do his homework. That's a very 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. So reflection on this distinction led me to conclude that the most useful definition of a remedy is that it's a judicial ruling. And private law remedies are a ruling that's intended to resolve a private law dispute. So remedial law, in this view, it's the law that governs the availability and the content of such rulings. But 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 the rules on restitution fit in this scheme? Are they directed fundamentally at citizens or at courts? The answer's not obvious. Indeed, the question seems barely to have been asked. Courts and commentators refer constantly to liabilities to pay damages or to make restitution. But it's 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. Of course, most of the rules taught in remedies courses are actually 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 it 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 again, the answer isn't 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 aren't following. The ruling seems to do nothing more than just repeat the rule. So 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 they make. So in short, these two projections, understanding private law remedies and understanding rulings came together. And the book that I'm writing is the outcome of that merger. It's not a treatise. It's fundamentally an argument for taking its subject matter seriously. For asking serious questions about what courts are doing when they issue rulings. The argument in the book has two prongs. The first prong, which is my focus today, is a response to the pedagogical puzzle. And it seeks to establish the scope and the structure of remedial law, in particular private law remedial law. But 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. Now I can't explore this philosophical argument in detail today, but it does underpin a lot of what I'm going to say, so I thought it might be useful if I gave you a couple of examples, again they're non-legal examples, that I think illustrates some of the differences between rules, orders and sanctions. So in my household, my wife and I imply each of the methods that the law implies. We use rules, we use orders and we use sanctions. So for example, we have a rule in the family that you must not throw food at the dinner table. If that 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. So the question is what's the point of the order? It appears to just repeat the rule. Why bother? Now it's sometimes suggested that an 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 a clarification or a declaration. It's also sometimes suggested that the rule is a warning or a threat of a sanction. But this 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 where there's no possibility of sanctions. I still occasionally issue orders to my older son, even though he's now six foot five inches tall and there is no chance that I am going to sanction him. So why do I issue orders? Well the reason I suggest is that I want to invoke a distinctive kind of authority, a kind of authority that's 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'm asking for obedience. The authority to declare duties and the authority to command obedience are different. And this difference is reflected in ordinary practices. So if my son questions the no-throwing food rule, I'll 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 will inhibit morally uplifting dinner table conversation. I might also respond that by virtue of my age and experience I'm an authority on duties. I'd 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 disagree and to refuse to comply, then I'll switch usually to the different kind of authority embodied in orders, stop throwing food. And when I do this, I'm invoking my presumed right to be obeyed, regardless of the merits of the ordered actions. And like many of us, I often make this switch when these two kinds of authority quite explicit. Tell me if you've ever done this if you're a parent. I don't care what you think. Just stop it. So 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 a bit to illustrate that in some circumstances we might want to use an order, not just to support a rule, but instead of a rule. So when my children were younger, if they threw food at the table, even after I'd ordered them not to, as I said, usually a sanction would fall. In our family, the sanction was usually being sent to their room. No doubt that's considered bad parenting today, but that's not my focus. My focus is how was this sanction, the punishment, communicated? Now one possibility would be to enact a rule to the effect that anyone who throws food has a duty to immediately go to their room. Our household never had a rule like that. Nor do any legal systems that I know of. You never see rules that impose duties on wrongdoers to perform actions which are intended as punishments. What you find instead is that punishments are imposed by judicial rulings. If my son was throwing food, I'd order him to his room. And when citizens commit crimes, it's courts or their delegates that order them to pay fines, go to prison and so on. So why don't we use rules to impose punishments? Why don't we have substantive duties, substantive rules that say things like, anyone who parks in a handicapped zone has a duty to pay £300 to the state immediately? We don't have those rules. Why not? Well it's true that not many offenders die with them. But some would, and in any event, if wrongdoers should pay fines, you'd think we'd have legal rules that say this, but we don't. We just make orders. Why? Well the reason I suggest is that we don't think wrongdoers have duties to punish themselves. Whatever justification exists for punishment, whether it's retribution, deterrence, whatever, it's 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 handicapped zone, it would be self-defeating. The rule would be interpreted as imposing a tax or a fee on parking in handicapped zones, rather than a fine. This interpretation would be adopted because it's the only way to make sense of the idea that this rule is declaring a duty. A duty to self-punish is unintelligible, but a duty to pay a tax or a fee is intelligible. Now these comments only scrape the surface of a very complex issue. But I hope they're sufficient to get you to entertain the idea that there's 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. So let me return finally to the questions I mentioned at the beginning. What is a remedy and on what grounds or when do courts issue remedies? So what is a remedy? Well I should be clear by now. My answer to this is that a remedy is a judicial ruling and a private law remedy is a ruling that's intended to resolve a private law dispute. In the remainder of this talk I will focus on one type or category of private law ruling, a ruling that requires the defendant to do or not to do something. And I call these directive rulings or just orders. And the main examples are specific performance, injunctions, order to pay damages, orders to pay a debt, and orders for the recovery of land or other property. These are the most common type of private law rulings and understanding them is critical for understanding not just remedial law but also substantive private law. What are the practical implications of this definition? Well first it excludes from remedial law rules that are often discussed in remedies textbooks. So for example rules relating to things like self-help or stipulated damages clauses aren't on this definition part of remedial law. They're part of substantive law. A stipulated damages clause is just a term and a contract. The second implication is that some things that are not discussed in remedies texts are part of remedial law. In particular, a significant amount of the law governing private law defenses is remedial. Many private law defenses are not reasons for individuals to act differently. They're 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, resjudicata, settlement, abusive process and parts of the law of illegality. The third implication is that most of the rules discussed in typical remedies textbooks turn out actually to belong there. In other words, I eventually came to the view that there was something in common between most of the rules that I was teaching in my remedies course. So, to begin the rules governing specific relief as I already indicated are 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 aren't many such rules but what there are are directed at courts. Most importantly the law of damages and the law of restitution are in my view part of remedial law. Now, this classification is actually very 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 that 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've committed wrongs or if they've been unjustly enriched. And in this view an order to pay damages or to make restitution is just like 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 in these cases is the rule that if you refuse to comply to pay a sum of money the courts will order you to pay this up. I once held this view myself of damages and restitution. I'm happy to discuss later why I've come to reject it but for the moment I'm just going to mention two reasons. The first is about damages. So in the common law it's clear law and has been clear law for probably over 700 years that it's no defence to a claim for damages that you offered to pay the amount that the claimant is seeking. Suppose I carelessly break your window and suppose I offer to give you 100 pounds which is what it will cost to fix the window and you're not like me or whatever you're angry with me, you refuse and you sue me instead asking for 100 pounds in damages. In my defence I argued that I offered to pay you the money. My defence will be rejected it's not a valid defence in the common law but if there were a duty to pay damages this rule makes no sense your refusal to accept the money would clearly be a defence. Indeed, even if I pay you the money say I just send it to you in the mail then unless that payment is part of a settlement you will still win you'll still get judgement for 100 pounds. Now it's true I might get my money back through a set off and 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 if you pay damages there are no damages for failing to make restitution so for these and other reasons the law of damages and 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 so why does it matter how we classify who cares whether these things are remedial or substantive well 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 partly 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 on what grounds do we get remedies this question has attracted little attention in the common law a few scholars notably Blackstone have suggested that all remedies are remedies for wrongs others Peter Birx for example have suggested that all remedies are responses to proof of a substantive right in my view as the title of my talk suggests 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 and I describe these as right threats wrongs and injustices so now we are going to get some slide which means this is the harder part we are going to be going out bill you have to pay a little bit more attention now I can't possibly defend this claim properly in a single lecture so instead I'm going to do four things first I'll briefly explain the meaning of each of these categories second I'll provide a single example illustrative example of each category third I'll say a few words about why courts issue orders in each in response to these events fourth finally after setting out the categories I'll explain where I think the remedies that I haven't yet talked about everything else fits within the scheme so the first and most basic cause of action is a rights threat now a rights threat arises where the claimants substantive rights are under threat because the defendants unwilling to comply with those rights the 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's what I call a replicative remedy so an example suppose that you and I have made a contract and as part of that contract you've agreed to a non-competition covenant and let's suppose you're breaching the covenant you're competing with me now your ongoing breach is a rights threat it's clear evidence that you're unwilling to respect my contractual rights and on proof of this unwillingness a court will normally order you to comply with the covenant now 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're unwilling to comply with it a rights threat is also different from a wrong now in my example you have committed a wrong by breaching the covenant but the relevance of the wrong at least so far as the order to comply is concerned it's simply evidence of the threat it's evidence of your unwillingness to comply with your duty this is why it's not necessary to prove a wrong to demonstrate a rights threat so for example if I can show that although you haven't yet breached the covenant you're intending to breach it in the near future then I can normally obtain an injunction a so-called quiatimate injunction directing you to comply with the covenant it's also possible to commit a wrong without threatening a right so 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 have infringed my rights my rights aren't under threat for the future so why do courts issue orders in response to rights threats well 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 was a response to a rights threat responding order and the reason for issuing such orders as I explained or at least as I illustrated is to provide a new and different reason to do what the substantive law requires when courts issue orders they're relying on a different kind of authority from that which they use when the law enacts substantive rules they're relying on their authority to command obedience so there's nothing surprising then about an order that's directing unwilling defendants to do what they already had substantive duties to do sorry that one was supposed to go up just before to explain what I'm going to do and now we're starting to do it so the second private law cause of action is a wrong and by wrong I just mean a breach of a substantive duty such as a breach of contract or a tort now you might expect that my example here would be an award of damages but as I'll explain in a moment in my view only some damages are responses to wrongs so my example is going to be narrower it's an award of nominal damages now of course nominal damages are relatively uncommon however they are I think a clear example within what is in general a difficult category so why are they a clear example of a wrong responding order two reasons first and most obviously the only thing you have to prove to obtain nominal damages is that a wrong occurred if a trespass is proven you can get nominal damages you don't have to show anything else second the sums awarded as nominal damages are at the end of the day arbitrary could be one pound could be ten pounds this arbitrariness is in my view exactly what we should expect if these awards are responses to wrongs now when an order is given in response to a rights threat or as I'll explain in a moment in response to an injustice the appropriate judicial response is pretty obvious the court should order the defendant to respect the threatened right or to reverse the injustice but there's 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 Birx once remarked the courts would not be acting inconsistently if their response to private wrongs was to order the wrongdoers ears to be cut off it might be inhumane disproportionate in short nominal damages are symbolic and what they meant to symbolize is that the defendant wronged the plaintiff why did the courts third question why did the courts issue such orders well the question here isn't really why did they issue them the question is why aren't their substantive rules that require wrongdoers to do the things that such orders require why don't wrongdoers have substantive duties to pay their victims one pound immediately following their wrongdoer if such a duty existed then the cause of action for an order of nominal damages would be a right threat it would be a right 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's 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 it's a difficult question briefly however the explanation in my view is that when the law responds to wrongs what it's doing fundamentally is communicating a message it's saying that the defendant wronged the claimant and for that message to be communicated it has to be issued by a court I mentioned earlier that criminal wrongdoers never had substantive duties to punish themselves to be punishment it has to be imposed by an order well the same is true I suggest for the private law's response to wrongs for damages to be a response to a wrong they have to be imposed by a court the third and final cause of action in the common law is an injustice now the term injustice I know is often used in a very broad sense so broad that it would capture any possible cause of action you could imagine but I think when the term is used in its core sense it does not encompass rights, threats or wrongs committing a battery, lying, stealing robbing, breaking, these are wrongs we don't typically call them injustices the label unjust is basically the legal version of unfair and it's properly applied only to actions that are allocating something so that's why we ask whether the tax system is just and why we ask whether a particular measure of punishment is just I'm 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'm going to use to illustrate this category is again visual but even more than the category of wrongs the category of injustices is controversial for the example is legislative in origin most common law jurisdictions have legislation that authorizes courts to issue orders dealing with maintenance and division of matrimonial property following the breakdown of a marriage so in England the relevant legislation provides that courts may make an order that quote either party to the marriage shall pay to the other such lump sum or sums as may be so specified now there's 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 party's assets following the breakdown is broadly speaking unfair so the cause of action for such orders is appropriately described as an injustice as I defined it courts issue these orders not because the defendant acted badly or threatened to act badly but because the court thinks that the party's assets are allocated unfairly that is to say unjustly why do courts issue injustice responding orders again a difficult question and as with wrong responding orders the real question isn't why do courts issue them but why don't we have substantive rules that require defendants to do what these orders require them to do so why don't the subjects of matrimonial property orders have substantive duties to do what these orders require now my example of matrimonial property orders suggest that one possible answer is that it's too difficult to draw up a rule that could effectively guide citizens any substantive rule in this case would be impossibly complex but 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 so the individualized counterpart to a rule is a declaration not an order but the matrimonial property orders are orders they're not declarations why well again as I said 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 so go back to my household as my earlier example suggested my household I'm generally the dispenser of justice but there are plenty of occasions when justices go uncorrected because I'm away or I'm asleep I think it's more important tonight to prepare a nice meal to make sure that justice is done between my sons I don't think there's anything wrong at least in principle in making these decisions and allowing some injustices in justices 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 isn't the 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 now of course an order once it's issued gives the defendant a duty to do what it says like wrong responding orders injustice responding orders are creative orders they create at the moment they're issued new duties but the duty they create is a duty to obey the order unlike rules as I said orders are not declarations about the existence of duties the only duty contemplated by an order is a duty to obey the court so let me recap so I've suggested that there's three basic causes of action in the common law and I've given you a single sometimes quite narrow example in each category and I've said a few words admittedly far too few to probably convince you about why courts issue awards in each of these categories the final question is what about all the other remedies that I haven't talked about so let me try to say a few words about that I'm going to start with the easier cases so there's a number of familiar remedies for which I think it's fairly clear that the cause of action is a rights threat and the remedies I'm referring to here are orders to pay a debt orders for the recovery of land or chattels specific performance and injunctions now there's a wringol or two that requires explaining in each case which is why I didn't use any of these 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 in other words that the claimants rights are under threat now to the harder cases restitution the cause of action for orders to make restitution or at least the core cases of orders to make restitution for impaired transfers for example an order to return money paid by mistake these orders I believe fall into my third category injustices these orders are analogous in broad outline to the matrimonial property orders like the matrimonial orders there's 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 I would say an unjust allocation of property the courts order is intended to correct the injustice which it does by reversing the transfer finally damages damages are complicated part of the reason they're complicated is that they're different kinds of damages awards specifically there appear to be at least three kinds of damage awards these different kinds line up conveniently with the three causes of action that I've identified so the first category is what I call substitutionary damages and substitutionary damages are substitutes for specific relief now imagine that you're in breach of a contractual duty to build me a house and suppose that our contract hasn't been terminated so that the duty is still binding now when these facts my contractual rights are under threat because you're unwilling to comply with your substantive duty prima facie the appropriate judicial response should be an order for you to build me the house but for essentially practical and administrative reasons as you know the courts are unlikely to make such an order instead they'll order you to pay me a monetary substitute for performance typically some equal to the cost of hiring someone else to build the house this orders a substitute for specific performance and it's cause of action accordingly is the same as specific performance it's a rights threat the second category of damages is consequential damages these are awards or parts of awards that compensate for the losses caused by the defendants actions now at one time I thought such awards were similar to nominal damages responses to wrongs but I've changed my mind for three reasons first and most obviously it's not sufficient to obtain such an award to show that you were wronged you must also show that as a consequence of the defendants action you suffered a loss second the sums of damages awarded under this heading are 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 so a famous example is the American case of Vincent vs Lake Erie so when Vincent the defendant tied his ship without permission to the plaintiff's dock he did it because there was a violent storm which was going to destroy the ship if it wasn't tied up the ship caused minor damage to the dock and the dock owner sued the court said that the defendant had acted perfectly reasonably in what he did however they ordered him to pay for the damage that he caused to the dock now Vincent's often regarded as an anomaly but I think cases like Vincent are very 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 Miller vs Jackson has the same structure so these cases in my view are critical for understanding consequential damages awards because 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 and that's a question of fairness or more strictly justice now of course courts contemplating consequential damages they don't just ask whether it's fair or just to make the defendant liable as in the parallel case of unfair enrichments the law has complex tests for determining what counts as an unfair loss indeed in my view 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 might be a consequence of a wrongful act but in each case the law's concern is not fundamentally the wrongfulness of the defendant's behavior it's the fairness of the loss or gain the third and final category of damage awards is comprised of awards that are neither substitutionary nor loss based they're sometimes called vindicatory damages so what damage awards fit into this category well the most obvious example which I've already discussed is nominal damages nominal damages vindicate the claimant'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 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 field 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 so punitive damages and market price damages are similar to nominal damages their response is simply to the defendant's wrongdoings their attempts to represent in monetary form that the defendant wronged the plaintiff so let me conclude with a bit of history and I'm scared doing this but looking at David if it's in there but I will do it nonetheless for most of the common law's history private law was basically remedial law it was rules about where you can get into court and what you can get from a court once you're in the recognition of substantive law of rules telling citizens how they should behave in ordinary life has been a slow process indeed it's still going on today the courts and writers responsible for this process most famously Blackstone but continuing in recent times to writers like Birx they 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 was that substantive law has been derived to a significant extent from remedial law and 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's normal in many common law countries to begin contract law courses by studying remedies it also explains why we shouldn't be surprised that it was a common law judge all over 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 and economic scholars have built their careers around this definition and in this lecture I've argued that we need to move beyond this kind of reasoning we need to take seriously the distinction between substantive and remedial law I've also tried to suggest 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 and I've tried to answer some of these questions but ultimately however what matters is not my answers what matters in my view is that the questions are asked thank you