Private law remedies are clearly expressive. It is a separate question whether the expressive features of these remedies are part of the legal point of view. Several leading private law theorists have recently provided expressive accounts of private law remedies, and this perspective is now represented among both corrective justice and civil recourse theorists. This book chapter focuses on an important and insightful example: Stephen Smith’s recent account of court orders. On Smith’s view, a compensatory damages award communicates that the defendant has committed a wrong, and that the defendant’s wrong was a wrong done to the claimant.
This chapter argues that this expressive theory of damages orders faces challenges under a transparency criterion. Under a moderate transparency criterion, we should be concerned to see whether a legal explanation is using recognizably legal concepts. Smith’s expressive account of compensatory damages, however, suggests counter-intuitive results once we translate damages orders into language that makes the expressive theory explicit. In addition, even if a moderate transparency criterion is met, it is not clear why mere declarations would not suffice in place of damages orders. Expressive accounts of criminal law punishments face a similar challenge. This is, however, a more difficult challenge as applied to compensatory damages orders.
Although the arguments in this chapter focus on Smith’s account, the implications are broader. The challenges faced by Smith’s account are likely to arise in similar forms for other expressive theories of compensatory damages, especially if those accounts are concerned with the legal point of view.
Gold, Andrew S., Expressive Remedies in Private Law (November 26, 2013). Book Chapter, in Remedies and Property (F. Lichere & R. Weaver, eds.) (Press Universitaires d’Aix-Marseille, 2013).