Private Law Theory

ABSTRACT
In Rights, Wrongs, and Injustices, Steve Smith argues that substantive legal rules, sanctions for breaking them, and judicial remedial orders are fundamentally distinct. A remedial order consists in a specific command addressed to a particular defendant, with the expectation that the defendant will comply voluntarily. One puzzle raised by remedial orders is why courts bother with them at all, since it seems they could simply right the wrong by skipping directly to a sanction when the relevant rule has failed to motivate. Smith suggests that practical considerations resolve the puzzle. His argument, roughly, is that it would be too costly to use public institutions to transfer property or take other action to right every judicially recognized private wrong. Were the direct imposition of sanctions costless (or of negligible cost), remedial orders would appear anachronistic and, by hypothesis, under-motivated. I suggest a complementary resolution to the puzzle. I argue that remedial orders can be understood as courts’ attempt to allow wrongdoers to redeem themselves and reassert their moral standing as equals. While remedial orders correct the injustices plaintiffs have suffered and thereby restore plaintiffs’ moral equality, they also allow wrongdoers to publicly acknowledge their transgressions and affirm their commitment to equal justice under law. This moralized account of orders sits congenially with Smith’s otherwise moralized account of private law. And importantly, on the moral account, even if the practice of issuing judicial orders were shown to be more costly than direct sanctions, there would still be reason, however defeasible, to maintain the practice.

Fox-Decent, Evan, The Moral Authority of Rulings (April 21, 2024) in Understanding Private Law: Essays in Honour of Stephen A Smith, Evan Fox-Decent, John CP Goldberg and Lionel Smith, eds (Hart 2024); McGill SGI Research Papers in Business, Finance, Law and Society Research Paper No 2024-12.