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McGill Faculty of Law
Smith, Stephen A.


People use the word “remedies” in many different ways. For the purposes of this course, a remedy is a right announced by a court order. This is how Birks understands a remedy – i.e. specific performance, damages, injunctions, etc.

·         This definition fits reasonably well with how people use the term.
·         Court orders have something in common and we can examine them together.

P. Birks, “Rights, Wrongs, and Remedies”
Birks offers two claims: a taxonomy of private law and an argument against discretionary remedialism.

Birks is concerned over the use of the word remedies to describe court orders. The word remedy is misleading. By calling a court order a remedy, it suggests that it may be different from a right. A court order clearly announces a right-remedy (so either term may be appropriate). Austin calls these court orders remedial rights.

By calling court orders, remedies, we suggest that they are responses to wrongs. This is how Austin and Blackstone understood this concept.

Some rights arise from living in a jurisdiction, others arise from consent, and from delict, and from “acts” (such as right to return of misplaced money). These rights are “non-wrongs” as Birks explains. The courts do not really acknowledge these rights. The courts will acknowledge rights only when one party infringes those rights. However, Birks argues against the pattern “rights → wrongs → remedy” because many of the remedies that a court orders are responses to non-wrongs.

Many court orders merely enforce primary rights, that is “rights → wrongs → rights [i.e. specific performance, restitution, etc.].” The fact that the parties have agreed to the rights gives rise to the duty to perform, and therefore the court will merely enforce the rights to which the parties agreed (primary rights).[1] Birks is not saying that all remedies arise this way; compensatory damages in tort arise from a wrong. These are secondary rights, where if a defendant commits a wrong, the wrong gives rise to damages.

Birks uses the jellyfish metaphor to show t

hey are supposed to do. For example, judges should deal with breach of a contract by enforcing the primary duty (specific performance).

Birks does not concern himself with the application of legal rules to facts (soft discretion). He is concerned with strong discretion of courts to choose penalties.

Payment of damages recognizes the existence of a wrong and it is easier to use discretion to punish the defendant. A judge can say that people’s rights are clear, because once the defendant has violated the rights, the defendant should not be able to claim that it did not know the punishment, so long as it knew that it would be subject to punishment. Without effective taxonomy, Birks claims, a court will not treat like cases alike and will therefore compromise the rule of law.
[1] When the remedy and the primary right match.