The Role for Remedial Discretion in Private Law Adjudication
The Law between Objectivity and Power, pp. 195-221, Philip Bender, ed., Nomos, May 2022
29 Pages Posted: 26 Aug 2022
Discretion is ubiquitous in adjudication. Adjudicators enjoy different types and varying degrees of discretion both in the conduct of the proceedings as well as in the application of substantive law. The focus of this paper is narrower: it analyses the role of judicial discretion in the choice and calibration of private law remedies. The paper starts by providing some terminological clarifications in order to distinguish remedial discretion from other forms of discretionary power. It then identifies two different versions of remedial discretion: system-oriented and non-system-oriented discretion. While the former is characterized by an exercise of discretion by reference to precedents in order to further develop and differentiate the remedial system, the latter is concerned only with the specificities of individual cases. With this distinction in mind, the paper offers a comparative analysis of remedial discretion in English and German law. It traces the origins of remedial discretion to the equitable remedies that have over time developed into a coherent remedial system before then addressing more recent forms of statutory discretion, such as family provision under the 1975 Inheritance Act. It then explores whether remedial discretion is also part of German private law. While remedial discretion as such is not part of traditional German private law theory, certain features of remedial discretion can be identified in some provisions of the German Civil Code. The paper concludes with a brief assessment of some of the merits and demerits of remedial discretion.
Note: This article is published in the Max Planck Private Law Research Paper Series thanks to Open Access. It is distributed under the terms of the Creative Commons Attribution-ShareAlike 4.0 International License (https://creativecommons.org/licenses/by-sa/4.0/). No changes were made to the article.
Keywords: Discretion, Remedies, Private Law, Comparative Law, Family Provision, Equitable remedies
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