Rights, wrongs, and remedies

Abstract

Part 1 shows that 'remedy' destabilizes analysis. It has at least five different meanings loosely grouped around the relationship between disease and medicine. In three of those meanings it is functionally synonymous with 'right', which, for all its own instabilities, ought to be preferred. Blackstone encouraged the use of 'remedy'. He stabilized it by putting 'remedies' in a particular relationship with 'wrongs'. However, he built that relationship on an unsound foundation, namely, the proposition, in which John Austin followed him, that every cause of action was a wrong. Part 2 demonstrates the error of that position. The rights which courts realize arise from wrongs and from not-wrongs. The word 'remedy' cannot easily cope with not-wrongs, and its tendency is to destroy the classification of the events from which rights arise. Part 2 also concludes that the habit of thinking of the law in terms of wrongs and remedies encourages a malignant, criminal model of the civil law, here called discretionary remedialism. In that model 'rights' dissolve. Instead, 'liability', as the equivalent of guilt, invites the court to respond with an appropriate remedy, selected by itself, by way of sentence.