From norms to facts: the realization of rights in common and civil private law.

• Author: Dedek, Helge

Every legal system that ties judicial decision making to a body of preconceived norms has to face the tension between the normative formulation of the ideal and its approximation in social reality. In the parlance of the common law, it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. In the common law world--particularly in the United Kingdom and the Commonwealth--a lively discourse has developed around the question of how rights relate to remedies. To the civilian legal scholar--used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, action, and execution--the concept of remedy remains a mystery. The lack of "remedy" in the vocabulary of the civil law is more than just a matter of attaching different labels to functional equivalents, it is the expression of a different way of thinking about law. Only if a legal system is capable of satisfactorily transposing the abstract discourse of the law into social reality does the legal machinery fulfill its purpose: due to the pivotal importance of this translational process, the way it is cast in legal concepts thus allows for an insight into the deep structure of a legal culture, and, convergence notwithstanding, the remaining epistemological differences between the legal traditions of the West. A mixed jurisdiction must reflect upon these differences in order to understand its own condition and to define its future course.

Tout systeme juridique qui lie la prise de decision judiciaire a un ensemble de normes preconcues doit faire face a la tension qui existe entre la formulation normative d'un ideal et son approximation dans la realite sociale. Dans la terminologie de la common law, c'est le remede, plus concretement, qui palie l'ecart entre l'ideal et le reel, ou plutot, entre les normes et les faits. Dans les juridictions de common law, plus particulierement au Royaume-Uni et au sein du Commonwealth, un vif debat est apparu sur les liens que les droits entretiennent avec les remedes. Pour le juriste civiliste, habitue a raisonner dans un cadre qui categorise strictement des termes tels que substance et procedure, droit subjectif, action et execution, le concept de remede demeure un mystere. L'absence de > dans le vocabulaire du droit civil n'est pas une simple question de nomenclature divergente pour decrire des equivalents fonctionnels. Il s'agit de l'expression d'une facon differente d'aborder le droit. L'appareil juridique n'atteindra ses objectifs que s'il est capable de transposer le discours abstrait du droit en realite sociale. Etant donne l'importance primordiale de ce processus de transposition, son expression dans des concepts juridiques revele la structure profonde d'une culture juridique et les differences epistemologiques qui subsistent entre les traditions juridiques occidentales, malgre leur convergence. Une juridiction mixte doit reflechir sur ces differences afin de comprendre son propre etat et de definir son parcours futur.

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1. The Question II. Remedies and Rights in the Common Law A. Traditional Pragmatism and the "Remedial Approach" B. Remedies and Rights: The Theoretical Debate 1. Rights in Private Law Discourse 2. The Quest for a Rights-Remedies Taxonomy III. The Civil Law: Rights and their Procedural Realization A. Rights and Actions, not Rights and Remedies 1. Theoretical Structure: Procedure as the "Servant" of Substantive Law 2. Terminology: The Absence of "Remedy" B. Origins 1. A Tradition of Theorization 2. From the Roman Law of Actions to the Rise of the "Subjective Right" 3. The Role of the Judge IV. Some Comparative Remarks A. "Finding" Law and "Making" Rights: Equity, Good Faith, and Discretionary Awards B. Specific Performance Conclusion I. The Question (1)

   "Law", writes Professor Paul Gewirtz, "mediates between the ideal and the real." (2) In the parlance of the common law it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. Remedies realize rights; as the etymology of the term reveals, remedies are supposed to provide the tangible cure, to heal what the law conceptualizes as an injury--the violation of an abstract right. Remedies translate the abstract and lofty discourse of the law into the life-world of the disputants.

   Every legal system that somehow ties judicial decision-making to a body of pre-formulated norms that, in other words, has evolved beyond a model of spontaneous administration of substantive justice, has to face the tension between the normative formulation of the ideal and its approximation in social reality. (3) This problem cuts across the dividing lines between legal cultures and traditions. Such commonality, however, does not preordain the way a legal tradition captures this tension in theoretical terms and doctrinal concepts. In this context, I have been asked to answer a concrete and concise question: Do the common law and civilian traditions differ in their approach to the relationship between rights and remedies, and if so, how?

   This is not a simple inquiry, and it is even less simple, it seems to me, to find an answer that will do it justice. If a comparative lawyer were asked to boil down the complexities to a single catchphrase the answer would probably look something like this: in the common law the remedy is said to precede the right, ubi remedium, ibi ius; whereas in the civil law the right is said to precede the remedy, ubi ius, ibi remedium. (4) Despite the apparent triteness of this summary, I maintain that there is not only truth to this aphorism, but that it stands as a synecdoche for a fundamental epistemological difference between the common law and the civil law traditions--a diagnosis that begs the further question: how does a mixed jurisdiction such as Quebec position itself in relation to this dichotomy?

   The different answers given to the question whether rights "come before the remedies" (5) (or vice versa) reflect a difference in how common lawyers and civilians imagine, conceptualize, and think about law. Despite phenomena of "functional convergence", cultural differences that burden the communication between lawyers on both sides of the common law--civil law divide remain. (6) Notably, the civilian tradition approaches law not as a historical sequence of court-ordered sanctions affecting the life of the disputants, but as an abstract normative system to be treated in a "scientific" manner.

   However, before even asking whether there is something such as an approach to the rights-remedies relationship that is typical of the common or civil law tradition, we first have to find out whether the respective traditions are even equally familiar with the notions of "rights" and "remedies". On the one hand, it is well known that comparatists have maintained that the common law has traditionally entertained a notion of right in a private law context that deviates from the (in)famous Continental "subjective right"--droit subjectif or subjektives Recht. (7) On the other hand, we witness a certain helplessness that overcomes the "true" civilian when grappling with the common law concept of "remedy" in all its historical and theoretical implications; used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, and action and execution, the concept of remedies remains a mystery to the civilian. The French civilian Denis Tallon once remarked at the outset of a report on remedies for breach of contract that "the French reporter is confronted with a terminological difficulty which, as always, reflects a more fundamental problem: what is a 'remedy'?" (8) The French recours, which is translated in the English language version of the Civil Code of Quebec as "remedy" (9) or the German Rechtsbehelf, seem prima vista, to describe legal institutions of which one can avail oneself--rather than a remedy in the sense of a cure that it is administered by a court. (10) Such fundamental differences--terminological, conceptual, epistemological--foreshadow the problems a Quebec judge or practitioner of private law faces when operating within a framework of substantive law that is civilian and a law of procedure that is strongly influenced by the common law.

2. Remedies and Rights in the Common Law

   Our first task is to briefly outline the approach of "the" common law tradition to the rights-remedies relationship. We have to differentiate between an empirical, factual description of how the common law tradition has dealt with this problem in its history, and what legal theorists and philosophers have argued ought to be the proper answer to the eternal question of how rights relate to remedies. Both approaches, however, are made even more complicated by the fact that it is far from clear what a remedy actually is.

   1. Traditional Pragmatism and the "Remedial Approach"

      Common lawyers tend--proudly--to portray themselves as gravitating towards a pragmatist approach. Unlike the civilian, who is more academically inclined and weighed down by doctrinal theorization, the common lawyer has traditionally cared about what actually matters; he emphasizes outcome, actual results rather than idle theory. In the context of a civil action, what matters is, arguably, the remedy. In his 1955 article "The Law of Remedies as a Social Institution" Professor Charles Wright wrote, "Civil actions are not brought to vindicate nice theories as to negligence or nuisance or consideration." (11) The tone of this quote, as well as the title of Wright's essay, gives us a sense of the appeal the topic of remedies exerts on a jurisprudence that would rather look at outcomes and consequences than preoccupy itself with doctrinal minutiae. Remedies, in the sense of that which matters, are the topic of choice of the realist and the pragmatist. (12) This explains the...