Rights and Remedies: A Complex Relationship
Stephen A. Smith
McGill University - Faculty of Law
CIAJ 2009 Annual Conference
TAKING REMEDIES SERIOUSLY - LES RECOURS ET LES MESURES DE REDRESSEMENT: UNE AFFAIRE SÉRIEUSE - CANADIAN INSTITUTE FOR THE ADMINISTRATION OF JUSTICE - INSTITUT CANADIEN D'ADMINISTRATION DE LA JUSTICE, p. 33, 2009
This essay explores the relationship between rights and remedies in the common law, focusing in particular on those rights and remedies that common law courts invoke when they are resolving private disputes. I will defend two main theses — one descriptive and one explanatory — about the nature of this relationship. The descriptive thesis is that the relationship is complex. Rights and remedies, I will argue, are related in five different ways: (1) remedies sometimes directly replicate rights; (2) remedies sometimes transform rights into near substitutes; (3) remedies sometimes create entirely new rights; (4) remedies are sometimes given where plaintiffs have no rights; and (5) some rights are not protected by remedies at all. The explanatory thesis is that the reason the relationship between rights and remedies is complex is that the question of how citizens should behave towards one another is different than the question of what courts should do on proof that a citizen has misbehaved.
Number of Pages in PDF File: 32
Keywords: Justice, legal remedies, law, Canadian, Canada, CIAJ, ICAJ, Canadian Institute for the Administration of Justice, Institut canadien d’administration de la justiceAccepted Paper Series
Date posted: February 18, 2012
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