Remedies and Rights

Abstract

This chapter examines the relationship between rights and remedies. Remedies serve as instruments of rights enforcement as well as participate in the constitution of the rights they help enforce. Although institutional reasons bring about certain gaps between the content of rights and the judicial response to their infringement, the constitutive role of remedies introduces significant subtlety into the domain of rights. Thus, the choice of different remedies, as well as the possibility of incorporating qualifications, limitations, and even obligations, allows private law to accommodate qualitative distinctions between different types of rights. The chapter also highlights the multiplicity of private law rights. By appreciating the multiplicity of private law and the normative value of the choices on which it relies, private law theory can better understand the order embedded in this complex legal mosaic and, perhaps, even contribute to its improvement.