0:40, 9 February 2010
Website of the Oxford University Press
Starting with the course “Legal Remedies in Europe” and the new group of students this Thursday at the University of Tartu, I have thoughtfully read Rafal Zakrzewski, Remedies Reclassified (Oxford University Press, 2005). The book bases on the author’s doctoral thesis defended at the Faculty of Law of the University of Oxford. Defining legal remedies, he quite begins with Jeremy Bentham’s critique of Blackstone’s Commentaries on the Laws of England. Namely, Blackstone divides law into declaratory, directory, remedial and sanctional parts (as we do), and defines the remedial part as the part “whereby a method is pointed out to recover a man’s private rights, or redress his private wrongs” (from here begin the problems). The book brings Blackstone’s illustration of the remedial part of law as follows:
“When the declaratory part of the Law has said that the field […] is vested in Titus; and the directory part has forbidden anyone to enter on another’s property without the leave of the owner; if Gaius after this will presume […] to take possession of the land, the remedial part of the Law will make Gaius restore the possession to Titius, and also pay him damages for the invasion”.
Bentham fully agrees that rights and secondary rights do not constitute legal remedies, because if a right, or a secondary right, is a remedy, what then declarative and directory law should be? – But Bentham also rejected the idea of actions being remedies. He asked, whether in the concrete case damages constitute remedies, or the course to be taken for recovering them, or both? If damages were remedies, he argued, then what would sanctional law be? If the course taken for recovering damages were remedies then how could it appear before the sanctional part? If both, then how could the concepts so different come under the same category? Since the course to be taken for recovering possession constituted actions and the law of procedure, Bentham excludes those from the remedial part of law.
What did Bentham think of belonging under the remedial part of law?
Bentham explained it that way – In the directory part law binds, in the sanctional part law prophecies. In the remedial part law “bids other men than him whom it bad and prophesied before to fulfil such prophecy”.
Does Bentham that way understand the remedial part of law as the prescription of how the sanctional part was to be given effect by the societal agents. But that way, he might have understood the remedial part as a norm itself – as the directory part of the law of enforcement? That way, Bentham may have bypassed the judgment before enforcement that was the “very thing” which to Blackstone was the remedy.
Thus, Zakrzewski understands remedies as the outcome in a judgment /decision /court order – as something the court gives. More strictly, remedies are the rights that arise from these orders. This understanding enables distinct separation of remedies from substantive rights, i.e. rights that exist before the making of a court order. Zakrzewski explains that if one understands under remedy the possible actions and claims available to be brought before the court, then a remedy would mean law, and would consequently fall under the declarative part of law. (As one deficiency he sees the judge’s discretion (judicial activism) being excluded.)
If that makes sense (and it does), then what to do with the other prominent authors as Christoph G. Paulus, Zivilprozessrecht: Erkenntnisverfahren und Zwangsvollstreckung (Berlin; Heidelberg; NY; Barcelona; Budapest; Honkong; London; Mailand; Paris; Santa Clara; Singapur; Tokio: Springer, 1996 (Springer-Lehrbuch), and the European Court of Justice who understand remedies as actions and claims merely? (And how to build the link to correctly approach the students?)
