The Concept of a Remedy Event as iCalendar

(Faculty of Law events, Faculty of Law Staff events)

31 August 2017

Date: Thursday 31 August
Time: 11am - 12pm
Venue: Algie Lecture Theatre, Level 2, Building 801
RSVP to Christina: c.pollock@auckland.ac.nz

 

 

steve-smith-1843

All members of the public, staff and students are warmly invited to attend a lecture by the 2017 Law Foundation Visiting Fellow, Professor Stephen Smith from McGill University.

The Concept of a Remedy

Professor Smith's lecture is titled The Concept of a Remedy.

Abstract

Enacting rules is an obvious way for authorities - legal or otherwise - to guide behaviour.  Imposing sanctions, in turn, is an obvious way to help ensure compliance with rules, either by directly bringing about the outcomes they require, or by providing incentives for compliance. It is less obvious why courts might want to issue orders: what is the point of telling individual to do things when the law already has, or could have, rules that tell citizens to do these same things? This lecture seeks to answer this question. Focussing on private law orders (though its arguments apply more widely), Professor Smith will argue that orders provide distinct reasons for action - different from those provided by rules or sanctions. Like duty-imposing rules—but unlike sanctions—orders purport to give rise to duties to perform the actions they describe. However, the explanation of how such duties arise differs as between rules and orders. Duty-imposing rules are propositions about, and constitutive of, the existence of duties.

The rule that ‘everyone has a duty to perform their contracts’ is intended to describe, and ground, the basic duty recognised by the law of contract. In asserting such a rule, the law therefore asserts ‘declarative authority’—the authority to declare that, by virtue of its declaration, something is the case (here, that a duty exists). In contrast, orders say nothing directly about duties. Orders are imperative statements: they command that particular actions be performed (‘It is ordered that the defendant pay $100 to the claimant’). Orders only give rise to duties indirectly, by virtue of a presumed general duty to obey orders. When courts issue orders they therefore assert ‘directive authority’—the authority to command obedience. The difference between declaratory and directive authority explains why orders can provide new reasons to do things that are already required by rules. It also explains why orders can provide reasons to do things that, because of the type of authority on which rules rely, are not a proper subject-matter for a rule.

Bio

Stephen Smith is a Professor at the Faculty of Law, McGill University, where he teaches primarily in the fields of private law (common and civil law) and legal theory. A former clerk to the then Chief Justice of the Supreme Court of Canada, Brian Dickson, Professor Smith is a graduate of Queen’s University (BA), the University of Toronto (LLM), and the University of Oxford (DCL). Professor Smith was a Fellow in Law at St. Anne’s College, Oxford from 1991-98 and has been a visiting professor at the Universities of Texas, Tel Aviv, Aix-Marseille, Singapore, and Queensland. His research is mainly in the areas of private law and private law theory. He is the author of Contract Theory (2004, OUP) and co-author of Atiyah’s Introduction to the Law of Contract, 6th ed. (2005, OUP). Professor Smith was the recipient of a Killam Fellowship for 2009-2011; he is currently writing a book on private law remedies.