Birks, Rights, Wrongs and Remedies (2019 - 09 - 19 12 - 02 - 04 UTC) PDF

Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp.
1–37
Rights, Wrongs, and Remedies

PETER BIRKS∗
Abstract—Part 1 shows that ‘remedy’ destabilizes analysis. It has at least five different
meanings loosely grouped around the relationship between disease and medicine. In
three of those meanings it is functionally synonymous with ‘right’, which, for all its
own instabilities, ought to be preferred. Blackstone encouraged the use of ‘remedy’.
He stabilized it by putting ‘remedies’ in a particular relationship with ‘wrongs’. However,
he built that relationship on an unsound foundation, namely, the proposition, in which
John Austin followed him, that every cause of action was a wrong. Part 2 demonstrates
the error of that position. The rights which courts realize arise from wrongs and from
not-wrongs. The word ‘remedy’ cannot easily cope with not-wrongs, and its tendency
is to destroy the classification of the events from which rights arise. Part 2 also concludes
that the habit of thinking of the law in terms of wrongs and remedies encourages a
malignant, criminal model of the civil law, here called discretionary remedialism. In
that model ‘rights’ dissolve. Instead, ‘liability’, as the equivalent of guilt, invites the
court to respond with an appropriate remedy, selected by itself, by way of sentence.
Introduction
Gaius noster. For us it is Blackstone noster, our Blackstone, the first ever professor
of the common law. And so comparatively recently. In the life of the common
law it is not long since 1758, when he was elected to the Vinerian chair. He was
only 15 when, 20 years earlier, he went up to Pembroke College. His brilliance
and diligence immediately recognized, he became a Fellow of All Souls in 1743.
But this is a Pembroke occasion, and I am deeply grateful to the College for
inviting me to be Blackstone’s lecturer for 1999. It is an intimidating task. The
desperate sense of unworthiness is aggravated by the daunting distinction of my
predecessors.
I vividly recall Professor Milsom saying, when he gave his lecture in 1980,
which was the year that marked the bicentenary of Blackstone’s death, ‘Dear
old Blackstone, dear old, pedestrian Blackstone! He only copied his stuff out of
all the textbooks’. And then there was a very Milsomian pause, and a twinkling
Milsomian smile, before he went on: ‘The trouble was, of course, that they had
∗ All Souls College, Oxford. This is the text of the Twenty-third Blackstone Lecture, sponsored by Pembroke
College, Oxford, delivered on 15 May 1999.
 2000 Oxford University Press
2 Oxford Journal of Legal Studies VOL. 20
not yet been written’.1 Pedestrian he was not. The Commentaries are one of the
great intellectual achievements in the history of our law.2 They are to be taken
seriously.3 To make sense of that ‘heap of good learning’,4 and to do so without
losing touch with it and seeming to speak, as unhappy Austin later did, of
something quite unrecognizable in the courts, required genius. Blackstone’s
genius was driven by deep learning and intellectual stamina. The learning is
evident in the work. His law is supported by history and political theory, and he
could not have given a coherent account of English law without being entirely
at home in works of the best civilian jurists. As for his commitment and
determination, Lord Neill gave a Chichele lecture not long ago in which he
portrayed him as a man of action and indefatigable energy, deeply concerned
with the welfare of the university and its improvement. In the centre of the
picture was his immense labour in awaking the University Press from its slumbers
and restructuring its management.5 The brilliant posthumous statue in the
Codrington Library, which Blackstone helped to stock and bring to life, tells the
same story. The elusive smile, the rival certainly of any achieved by Leonardo,
indicates wisdom, learning, humour, and self-knowledge.6 That desiccated gen-
tleman who sits at the end of the South Cloister of University College London,
and still goes to meetings, but does not vote, took pleasure in constantly belittling
our Blackstone. He was quite wrong.
The Premise and the Aim

Blackstone regarded law as the highest branch of ethics, scandalously neglected
in the universities.7 This too has to be taken seriously. He knew law to be ethics
subjected to additional burdens. Moral philosophers are not obliged day by day
to solve the real problems of real people, nor are they called to daily account to
1
In the published version, this does not appear quite as spoken on the day: S. F. C. Milsom, (1981) 1 OJLS
1 at 4. The bicentennial lecture was co-sponsored by Pembroke College and the Selden Society.
2
W. Blackstone, Commentaries on the Laws of England, four volumes (1765–9). The citations hereafter are to
the first edition, a facsimile of which was published by the University of Chicago Press in 1979 to mark the
bicentenary, above n 1. The eighth edition was the last by the author. The changes which he made after the first
are not material to this paper.
3
Milsom, above n 1, and, for the jurisprudence, in the modern sense of that word: J. Finnis, ‘Blackstone’s
Theoretical Intentions’ (1967) 12 Natural Law Forum 163, in which the notion that Blackstone’s jurisprudence
was superficial and ornamental is refuted.
4
The phrase is that of Thomas Wood, ‘I entertained hopes that now it might not be impossible to sort, or to
put in some order, this heap of good learning . . .’: T. Wood, An Institute of the Laws of England (1722) preface i.
5
Lord Neill of Bladon (then Sir Patrick Neill QC, Warden of All Souls) ‘Blackstone’, A Chichele Lecture given
on 16 May 1995. It took a campaign of three years’ duration to bring this about (1755–8). Especially indicative
of Blackstone’s true character was his determination, as a Delegate of the Press, to get to know the details of every
aspect of the production and publication of books. He was equally tireless in his struggle to stem the flow of
founder’s kin into many vacant fellowships, a matter for which he is given due credit in the history of the university:
L. S. Sutherland and L. G. Mitchell (eds), The History of the University of Oxford, vol 5 (1986) 233–4. The same
volume, at 602–4, makes a singularly dead assessment of his writing.
6
J. Bacon sculpsit, 1784—a rare tribute.
7
‘[T]hat a science like this should ever have been deemed unnecessary to be studied in a university, is a matter
of astonishment and concern . . . and to those who doubt the propriety of its reception amongst us, (if any such
there be,) we may return an answer in their own way, that ethics are confessedly a branch of academical learning;
and Aristotle himself has said, speaking of the laws of his own country, that jurisprudence, or the knowledge of
those laws, is the principal and most perfect branch of ethics’: 1 Commentaries 27.
SPRING 2000 Rights, Wrongs, and Remedies 3
justify to those same real people the substance of their tenets and the even-
handedness of their procedures. The law by contrast is under constant sur-
veillance. Vigilant critics quite rightly pick over the substance of every judgment.
And it is an unrelenting question whether, through time, but allowing for the
changes of perception which come with the passage of time, the courts are or
are not, can or cannot be, true to the aspiration impartially to treat like cases
alike.
The undefended premise of this lecture is that the law cannot hope to sustain
this compound burden of stability, flexibility, and transparency unless it pays
scrupulous attention to its own taxonomy. From Aristotle to Linnaeus to Darwin,
and through to the transformations of knowledge initiated in our own time by
Crick and Watson, the understanding of the natural world has depended on
patient, self-critical classification. Lawyers deceive themselves if they think they
are exempt from the same elementary intellectual burden. This was already
obvious to Gaius in the second century and still obvious to Blackstone in the
18th. The law simply could not be understood unless it took care to classify
itself ‘methodically’. If it did not properly understand itself, its decision-making
would be erratic and doomed to ridicule. Yet at the end of the 20th century the
common law appears temporarily to have lost its instinct for the importance of
this taxonomic debate. As we have been recently reminded, it is super-sensitive
to the least possibility that the aspiration to treat like cases alike might be
impaired by bias.8 But it maintains a stubborn indifference to impairments of
the same aspiration inherent in intellectual categories which are ill-defined,
overlap, or intersect. If justice is to be done, and must be seen to be done, the
law must be perceived to be thinking in a style compatible with ordinary
rationality.
All that is assumed. One lecture can take only a tiny step. Accepting without
comment the difficult division between public and private law, and staying within
the latter, the lecture aims to engender doubts as to the utility of the word ‘remedy’.
The thesis is that it should be eliminated from our analytical vocabulary—that is,
from the vocabulary which we use when we mean to be taken seriously and to
be understood. The central task of any taxonomy of private law must be to
understand the events which trigger the law’s responses and the responses which
are triggered by those events. Event and response form an intelligible opposition.
It is more or less true—though, as we shall see, not quite perfectly—that ‘remedy’
belongs solely in the sector of ‘response’. The trouble is that the word ‘right’
does too. The category of ‘right’ overlaps with the category of ‘remedy’. This
overlap confuses. The lecture argues that ‘right’ should prevail. We should regard
‘remedy’ with deep suspicion.9
8
A historic marker: R v Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 2) [1999] 2
WLR 272 (HL).
9
I have nibbled at this problem once or twice before: P. Birks (ed), Frontiers of Liability, vol 2 (1994) 214–23,
skirmishing with D. W. M. Waters, ‘The Nature of the Remedial Constructive Trust’, in the same volume 165–85;
also P. Birks, ‘Equity, Conscience, and Unjust Enrichment’ (1999) 23 Melbourne UL Rev 1–29, esp. 25–7.
This campaign against ‘remedy’ will seem absurd. The word is venerable.
Blackstone used it, clearly preferring it in one large area to ‘right’.10 There are
books on remedies. Sir Guenter Treitel, recently retired from Blackstone’s chair
and as great in our time as the first Vinerian was in his, has written a brilliant
and invaluable comparative account.11 Another, which is constantly in all our
hands, is by Professor Burrows.12 In many university law schools, there are whole
courses on remedies. Every English-speaking lawyer that ever there was has used
the word and will no doubt continue to do so. It crops up in almost every case.
It is none the less unstable. And its instability seriously impedes the development
of a satisfactory taxonomy of events and responses. It must at the very least be
cut back. This cutting back entails at the same time the rejection of the taxonomy
which Blackstone used to provide the structure of the Commentaries. Austin,
though he varied the terminology, commended and endorsed that structure. As
we shall see, his version was not dependent on the word ‘remedy’, but it persisted
in a serious analytical error.
Blackstone’s Scheme
Before embarking on the substance of the argument, it is necessary very briefly
to sketch in Blackstone’s structural scheme and Austin’s terminological modi-
fication of it. The foundation of Blackstone’s Commentaries is the contrast between
rights and wrongs. Book 1, chapter 1, opens with an assertion of the necessity
of good classification, followed by a clear statement of the system which he
proposed to adopt:
The objects of the laws of England are so very numerous and extensive, that, in order
to consider them with any tolerable ease and perspicuity, it will be necessary to
distribute them methodically, under proper and distinct heads; avoiding as much as
possible divisions too large and comprehensive on the one hand, and too trifling and
minute on the other; both of which are equally productive of confusion.
Now, as municipal law is a rule of civil conduct, commanding what is right, and
prohibiting what is wrong; or as Cicero, and after him our Bracton, has expressed it,
sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and
principal objects of the law are RIGHTS, and WRONGS. In the prosecution of these
commentaries, I shall follow this very simple and obvious division: and shall in the
first place consider the rights that are commanded, and secondly the wrongs that are
forbidden by the laws of England.13
10
3 Commentaries 115, 270, 360, and passim.
11
G. H. Treitel, Remedies for Breach of Contract, A Comparative Account (1988).
12
A. Burrows, Remedies for Torts and Breach of Contract (2nd edn, 1994).
13
1 Commentaries 117–18. This follows a long four-section introduction. The capitals and italics are those of
Blackstone. He footnotes the quotation from Cicero to ‘11 Philipp 12’ and the place in Bracton as ‘l.1, c.3’.
These are not balanced categories, for a wrong is an event which happens in the
world, and a right is the conceptualization of a legal response to events.14
However, the key to Blackstone’s scheme is that it is in the nature of a sequence:
a person going about his daily business has certain rights. Those rights may be
violated, so that he thereby suffers a wrong. If he suffers a wrong, the law will
grant him an action, which will be the instrument by which he will obtain his
remedy.
In the pursuit of this programme Blackstone first sets out all the rights that a
person has or can acquire, absolute and relative: rights to life and limb, health,
reputation, rights of property, and, as a subdivision of property, rights under
contracts. This takes two volumes. He then turns to the wrongs which consist
in the infringement of those rights, and their remedies. The essential point is
that for him rights were always superstructural, in the sense that they provided
the framework which explained the wrongs which alone were the business of the
courts. The courts did not deal in the direct enforcement of rights, they dealt
in remedies for wrongs. As is well known, Bentham and his circle generally went
out of their way to run Blackstone down. But, in respect of this structure, John
Austin paid him an enormous and ultimately undeserved compliment. He said
that in his classificatory scheme Blackstone had bettered the Roman jurists.15
They had failed to bring out the difference between primary rights and secondary,
or remedial, rights. In fact they had in his view erred in collapsing the two tiers
into one single series.
However, much as he admired the two-tier structure and endorsed the notion
that the courts were concerned only with wrongs,16 Austin did not follow
Blackstone’s scrupulous refusal to use the word ‘right’ to denominate the law’s
response to wrongs. He was content to see rights at both levels, distinguished
as primary and secondary or remedial.17 On the superstructural level, there were
the primary rights. Down on the lower level where the courts dealt with the
wrongs which consisted in the infringement of those primary rights, there were
secondary or remedial rights born of those wrongs. This is all familiar to us,
because Lord Diplock brought the two-tier analysis back into the law of contract:
the primary right being born of the contract itself, and the secondary right born
of the wrong of breach of contract.18
Professor Brice Dickson suggested that Lord Diplock’s thought might have
found its root in Austin himself, which was also my own view, but might equally
or even more probably have been derived from German law.19 This provoked
Professor Rudden to search deeper, and he located the source of Austin’s
14
This is further explained and represented diagrammatically in P. Birks, ‘The Law of Restitution at the End
of an Epoch’ (1999) 28 UWALR 13 at 17–20.
15
J. Austin, Lectures in Jurisprudence (edited by R. Campbell, 3rd edn, 1869) 794–6.
16
Text to nn 77–82 below.
17
Austin, above n 15, Lecture XLV and the notes which follow it at 787–800.
18
In, among others, Moschi v LEP Air Services Ltd [1973] AC 331 (HL) 350; Photo Production Ltd v Securicor
Transport Ltd [1980] AC 827 (HL) 848–9.
19
B. Dickson, ‘The Contribution of Lord Diplock to the Law of Contract’ (1989) 9 OJLS 441 at 449.
language in Pothier.20 That is no doubt correct for the language of remedial

privy Councilrights, but, beneath the language, the structure is Blackstone’s.
Blackstone and Pothier were, of course, 18th century contemporaries21 and
both belonged to that great post-humanist movement in Western European
jurisprudence, initiated by Grotius in the 17th, by which, in the vernacular, the
local law grew up, rationalized itself, and sought both to emancipate itself from
and to emulate the intellectual respectability of the Roman law library.22
There now follow the two principal sections of this lecture. The first makes
no direct challenge to the notion that the courts are concerned only with wrongs.
Its contention is that responses to wrongs should be called rights, not remedies.
Towards the end of that first part the error of accepting the monopoly of wrongs
begins to break the surface, for part of the case for using the language of rights
is that the language of wrongs and remedies cannot properly be applied to every
case that claimants bring into court. The second part seeks to draw attention to
the important line between wrongs and not-wrongs and to show that only the
abandonment of the language of remedies can prevent the scuffing of that crucial
line or, as in Blackstone and Austin, its erasure.
1. Remedies for Wrongs or Rights from Wrongs?

Civil wrongs elicit diverse responses. The commonest is compensation for loss.
That has sub-forms, depending chiefly on the point from which the loss is
measured. In some cases the victim can get punitive damages. Nominal damages
are another possibility. Sometimes acquisitive wrongdoers will be stripped of
their gains. That is now often called restitutionary damages.23 The restitutionary
response also has its sub-forms. It generally takes effect only in personam,
sometimes in rem. That is to say, the wrong sometimes turns the wrongdoer into
a trustee, so that the victim becomes the owner in equity of the wrongdoer’s
gain. There are yet other possible responses to wrongs. The victim can usually
get an injunction to put an end to a continuing wrong, or indeed to prevent one
that is anticipated.
Some months ago, when my thoughts remained obstinately tangled and the
need to sort them out was becoming pressing, my son and I were reading the
20
(1990) 10 OJLS 288, where Professor Rudden points out that Pothier spoke of ‘obligations primitives’ and
‘obligations secondaires’ but that Evans, his translator, opted for primary and secondary obligations: W. D. Evans
(tr.), Pothier on Obligations (1806) para 183 at 106. Professor Rudden also points to the fact that Lord Diplock’s
‘synallagmatic contract’ is also in Pothier and in the translation, para 9 at 8.
21
Pothier (1699–1772) published his great book on obligations in 1761, four years before Blackstone (1723–80)
produced the first volume of the Commentaries, which, however, were based on lectures given from 1753.
22
J. W. Cairns, ‘Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State’ (1984) 4
OJLS 318; K. Luig, ‘The Institutes of National Law in the Seventeenth and Eighteenth Centuries’ (1972) 17 Jur
Rev 193. For a wider ranging study of the civilian side of the search for a systematic rationality: P. Stein, ‘The
Quest for a Systematic Civil Law’ (1995) 90 Proc Brit Acad 147.
23
As, for instance, by the Law Commission, Aggravated, Exemplary, and Restitutionary Damages, Law Com No
247 (1997). The usage, though not the practice, is deplored by Dr McGregor, albeit on grounds which would
exclude the use of the word ‘damages’ for exemplary and nominal awards as well: H. McGregor, ‘Restitutionary
Damages’ in P. Birks (ed), Wrongs and Remedies in the Twenty-First Century (1996) 203.
autobiography of the naturalist Edward Wilson. We came early on to the place
where he recalls how as a child at Perdido Bay in Florida his imagination was
fired by an encounter with a Scyphozoan—a sea nettle, or, as most people say, a
jellyfish.24 Here I encountered the image of my tortured doodles—blobs with
strings attached. Since then this has remained the jellyfish problem. As a jellyfish
trails its tentacles in the warm sea, so from many civil wrongs dangle a plurality
of remedial strings. What are they? Are they rights or remedies? The answer is
that they can be either or both. Nevertheless, if we call them remedies we are
likely to run into all sorts of trouble. Such is the power of words.
A. Two Prominent Examples

Let me give two quick examples of the jellyfish phenomenon. They will serve
three purposes, namely, to make the question more real because more concrete,
to sample the language which the judges use, and to reveal the law’s position as
to the danger of double recovery.
The great case of United Australia Ltd v Barclays Bank Ltd25 concerned the
wrong of conversion. It was decided by the House of Lords in 1940. A cheque
made out in favour of United Australia and sent to it was intercepted and
fraudulently endorsed by the company secretary so as to seem payable to another
company in which he had an interest. That other company paid the cheque into
Barclays Bank for collection. Barclays Bank admitted that in collecting the
cheque it had converted it, but it argued that United Australia had destroyed
its right to sue because it had irreversibly ‘waived the tort’. United Australia had
started an action against the other company, which it had later discontinued.
The waiver was supposed to consist in the fact that that other action had been
for restitution of the sum received by the company, not for compensation for
the loss arising from the wrong of conversion. In the traditional language United
Australia had waived the tort of conversion in order to bring the action for
money had and received. Barclays argued that the traditional language of waiver
must be taken seriously. The tort had been extinguished. The House of Lords
rejected that contention.
The House held that the analysis must not be misled by the words of the
forms of action, and that, when focused on the substance, it revealed that
conversion was a wrong with two remedial strings. The victim of the wrong of
conversion, standing on the single cause of action which consisted in the tort,
was entitled to recover the amount that the wrongdoer had received through the
wrong or the amount of his own loss arising from the wrong. The one wrong
gave two different rights. And the relation between them was that the plaintiff
had to make an election before judgment. The choice was his, and it was not
finally made merely by beginning an action. This is, I hope, a fair summary, but
it is deliberately inaccurate in one respect. Their Lordships did not call these
24
E. O. Wilson, Naturalist (1995), 6–7.
25
[1941] AC 1 (HL).
remedial strings ‘rights’. They called them ‘remedies’. Or, as might be more
scrupulously accurate in not suggesting a simple equivalence between the two,
their Lordships did not use the language of rights and did use the language of
remedies. Four quotations will illustrate this. The first is from Viscount Simon
LC, reaching across the Atlantic:
The true proposition is well formulated in the Restatement of the Law of Restitution
promulgated by the American Law Institute, p. 525: ‘A person upon whom a tort has
been committed and who brings an action for the benefits received by the tortfeasor
is sometimes said to “waive the tort”. The election to bring an action of assumpsit is
not, however, a waiver of tort but is the choice of one of two alternative remedies’.26
Lord Atkin, in a not dissimilar passage, looked back to the past and said:
In cases where the money had been received as the result of a wrong, [the plaintiff]
still had the remedy of claiming damages for tort in actions for trespass, deceit, trover,
and the like, but he obviously could not compel the wrongdoer to recoup him his
losses twice over. Hence he was restricted to one of the two remedies, and herein, as
I think, arose the doctrine of ‘waiver of the tort’ . . . The doctrine has . . . alternatively
been said to be based on election—that is, election between two remedies . . .27
Then, a little later, Lord Atkin said:

I therefore think that in a question of alternative remedies no question of election
arises until one or other claim has been brought to judgment. Up to that stage the
plaintiff may pursue both remedies, or pursuing one may amend and pursue the other:
but he can take judgment only for the one, and his cause of action on both will then
be merged in the one.28
And Lord Romer, to similar effect, said:

A person whose goods have been wrongfully converted by another has the choice of
two remedies against the wrongdoer. He may sue for the proceeds of the conversion
as money had and received to his use, or he may sue for the damages which he has
sustained by the conversion. If he obtains judgment for the proceeds, it is certain that
he is precluded from thereafter claiming damages for the conversion. In my opinion,
however, this is due, not to his having waived the tort, but to his having finally elected
to pursue one of his two alternative remedies.29
The other example, more recent, is Tang Man Sit v Capacious Investments Ltd30
which came to the Privy Council from Hong Kong in 1995. This was a direct
application to an equitable wrong of the principles enunciated in the United
Australia case. A trustee who was under a duty to convey recently developed
land put himself in breach of that duty. He let the land out and received the
rents. Furthermore, the lettings were wholly unsuitable to the nature of the
26
Ibid at 18.
27
Ibid at 28.
28
Ibid at 30.
29
Ibid at 34.
30
[1996] AC 514 (PC).
buildings and resulted in grave damage to the development. The plaintiff
company, Capacious Investments, to whom the trustee ought to have conveyed,
successfully claimed both the trustee’s gain and its own loss. The necessity of
putting the company to an election was overlooked. In the end the Privy Council
held that the company had never made any election, ought to have been given
an opportunity to make an informed choice before final judgment, and, not
having done so, might still, and must, make its choice, so far as the two were
inconsistent. Lord Nicholls, giving the advice of the Privy Council, used the
same language as the House of Lords had used more than 50 years earlier:
The law frequently affords an injured person more than one remedy for the wrong he
has suffered. Sometimes the two remedies are alternative and inconsistent. The classic
example, indeed, is (1) an account of profits made by a defendant in breach of his
fiduciary obligations and (2) damages for the loss suffered by the plaintiff by reason
of the same breach. The former is measured by the wrongdoer’s gain, the latter by the
injured party’s loss . . .
Faced with alternative and inconsistent remedies a plaintiff must choose, or elect,
between them. He cannot have both. The basic principle governing when a plaintiff
must make his choice is simple and clear. He is required to choose when, but not
before, judgment is given in his favour and the judge is asked to make orders against
the defendant.31
B. The Many Meanings of Remedy

All meanings of ‘remedy’ have one thing in common, namely, that that which
is referred to as a remedy is represented as a cure for something nasty. To remedy
is to cure or make better.32 The only precondition to the use of the word is a
state of affairs which needs making better. Provided that the facts disclose a
relationship between phenomena which can be perceived as analogous to that
between illness and medicine, anything that alleviates, eliminates, or prevents
can be referred to as a remedy. We noticed in relation to the United Australia
case that the precise reference of the word ‘remedy’ is often elusive and requires
considerable caution. Every attempt to capture a range of meanings is open to
the objection of misrepresentation of the writers’ original intentions. Nevertheless,
we cannot go further without some overview of the different possible meanings
of ‘remedy’ as that word is used by lawyers. It is hard to decide how many there
are. My own list has fluctuated between five and eight. It largely depends what
one does with the very wide and imprecise sense which is described first in the
list below. For fear of overrefinement I have chosen in the end not to break it
up. I have settled on five meanings.
31
Ibid at 521.
32
The OED derives the noun ‘remedy’ from the prefix re- and the root of medeor, mederi, Latin for ‘to heal’,
and draws the comparison with ‘medicine’.
(i) ‘Remedy’ as an action, cause of action, or the law’s configuration of the actionability
of a claimant’s story
This sounds vague, and it is. In the days of the forms of action, a lawyer who
told his client that an action of detinue would be his remedy, or an action of
assumpsit, or an action for money had and received, would be saying something
much more precise and concrete. These actions or forms of action were sets of
words. They were winning propositions. Almost everyone who is driven to
litigation has an anxiety or grievance needing to be made better. The availability
of a winning proposition, a proposition which the troubling facts would sub-
stantiate, was the law’s remedy to alleviate that trouble. Looking back, Professor
Baker can thus say, ‘The remedy ordained in the register of writs for the recovery
of chattels was the writ of debt or detinue’.33
Similarly, when we refer back to classical Roman law, which also had its forms
of action, we can find ourselves saying that the two prime remedies were the
vindicatio and the condictio, the former a set of words for asserting ownership
and the latter a set of words for claiming debts. In classical times these actions
were reduced to the grammatical pattern of the formulae which carried disputes
to trial,34 but their essence is not misrepresented if they are expressed in direct
speech. The plaintiff in a vindicatio was affirming, and undertaking to substantiate,
the proposition ‘I say that Blackacre is mine!’ And the plaintiff in a condictio was
likewise saying, and undertaking to substantiate, ‘I say that you ought to pay
me 1000!’ Nobody would now doubt the appropriateness of saying that these
actions asserted rights, but, equally, we can refer to them as remedies. The word
‘remedy’ sees the availability of those sets of winning words, and hence the
words themselves, as the medicine for the pain that brings the plaintiff to the
law.
Since the abolition of the forms of action this meaning of ‘remedy’ has become
more fluffy. ‘Action’ no longer has any specific reference. Consequently, calling
an action a remedy likewise identifies nothing specific. Yet lawyers still use the
word in a diluted and rather elusive version of this sense. Having heard the
client’s story, a solicitor may say, ‘Conversion is your remedy’. Conversion is a
wrong, an event which happens in the world. But what the solicitor means is
that, translated into law, the client’s story is actionable as conversion, and the
fact that the law recognizes such a cause of action will make the client’s grievance
better. In other words, conversion is the law’s formula for relief, a conceptual
or linguistic stepping stone to putting things right.
The same elusive process of thought works at a higher level of generality. In
a paper published last year, Justice McLachlin of the Supreme Court of Canada
opened with a sentence which said ‘It is now accepted that, in addition to
contract and tort, the common law of civil remedies includes restitution of unjust
33
J. H. Baker, An Introduction to English Legal History, (3rd edn, 1990) 441.
34
Both these and many others took the form of conditional clauses qualifying an order, in the alternative, to
condemn or absolve: ‘Let Titius be judge. If it appears that . . ., condemn the plaintiff to the defendant in such
and such a sum; if it does not appear, absolve him’.
enrichment’.35 She may have meant, and probably did, that ‘remedies’ responded
to three generic causative events.36 But it is perfectly possible to refer directly to
contract and tort as remedies in this first general sense. On the face of things
that is what she seems to do. Contract and tort are generic descriptions of events.
At a lower level, the level of species or variety (where a dog becomes a labrador
or a collie), sale, hire, insurance, conversion, defamation, and trespass to land
are of the same kind. The words which the law puts on causative events signify
that the law responds to those events. Contract and tort are in this way two
common and important terms in which the law configures actionability. Many
grievances are made good because contracts and torts are actionable. In that
sense contract and tort can be described as remedies. They are formulae which
promise relief. Thus, while a tort is an event, and an event as such is with
difficulty understood as a remedy, yet tort is, simultaneously and without
contradiction, the law’s conceptualization of actionability. That sufficiently sets
up the resonance between pain and cure, and it is that resonance which suffices
to justify the use of the word ‘remedy’. The fact that a story fits within the law’s
generalization of an actionable event promises actionability and victory in the
courts, and in that light, not simply as an event, ‘tort’ becomes a remedy for the
client’s distress.
A recent Scots case, Shilliday v Smith,37 illustrates this first general sense of
‘remedy’ very well. In that case a brilliant synthesizing judgment of Lord
President Rodger purged the Scots law of unjust enrichment of its excessive
compartmentalization. He held that the seductive series of R-words—restitution,
repetition, recompense, and relief—should not be allowed to conceal the under-
lying unity of the law of unjust enrichment, for they were no more than the
‘remedies’ through which the law of unjust enrichment operated. He meant that
they were just the traditional terms in which the law had configured the
actionability of unjust enrichment. For the purpose of curing this kind of grievance
pursuers’ claims had for centuries been translated into this terminology.38 Thus,
if the pursuer wanted to recover a sum of money as an unjust enrichment, the
claim, translated into law, would be a claim for repetition, while a claim in
respect of services would be translated as a claim for recompense. The Lord
President’s synthesis supposed a simple truth, that a figure from a larger family
must not be allowed to wander off and misunderstand itself, as a cygnet
misconstruing the local evidence might conceive itself to be duckling. The
‘remedies’—the law’s traditional conceptualizations—had been pitched at the
level of species or varieties but their character had not thereby diverged.
35
The Hon. Justice Beverley McLachlin, ‘Restitution in Canada’ in W. R. Cornish et al. (eds), Restitution, Past,
Present and Future (1998) 275; cf. at 278, ‘If the law of civil remedies is divided into contract, tort and restitu-
tion . . .’.
36
It is dangerous to omit the residual fourth category, ‘miscellaneous other events’: n 69, and text to n 89 below.
37
1998 SLT 976, noted by Parker Hood (1998) 114 LQR 559.
38
The R-words go back to Stair in the 17th century, for whom the series continued with ‘reparation’ (being
the law of delict, civil wrongs): Stair, Institutions 1.7–9.
It seems probable that the habit of referring to the constructive trust as a

remedy, to which we will return immediately below, has its roots in this loose
sense of ‘remedy’. The law, or here equity, has diverse ways of saying that if a
given story is true it will do something to make the plaintiff better or, in
other words, of expressing and pigeon-holing actionability. And this is one: ‘A
constructive trust is the formula through which the conscience of equity finds
expression’.39 The difficulty, as we shall see, is that the word ‘remedy’ has in
this context more recently begun to be given an altogether different weight.
There are two last things to be said about this elusive general sense of ‘remedy’
as an action or the law’s configuration of actionability. First, there is no way in
which the word so used can be said to be a synonym for ‘right’. Conversion,
trespass, money had and received, condictio, tort, repetition, constructive trust—
these are not rights but legal formulae, words and phrases belonging to the law
which in different ways capture actionability. Secondly, I do not think that
Blackstone himself ever used the word in this very broad sense. It is not easy to
be sure. But his sequence—right, wrong, action, remedy—was carefully worked
out. For him the ‘action’—still the form of action, the set of words—was not
the remedy, but the instrument or vehicle for getting to the remedy. We will
recur to this immediately below, in connection with the fourth meaning.
(ii) ‘Remedy’ as a right born of a wrong

Here the wrong is the trouble which needs making better, and the right born of
the wrong is the remedy which does the trick. You negligently run over my foot.
I acquire a right against you that you should pay me damages. The right is a
remedy. It is a remedial right. This is non-controversial. It suffices to give in
evidence two sentences from John Austin:
Acts, forbearances, and omissions, which are violations of rights or duties, are styled
delicts, injuries, or offences. Rights and duties which are the consequences of delicts
are sanctioning (or preventive) and remedial (or reparative).40
Austin’s version of the two-tier structure has primary rights on the top tier and
secondary rights on the lower tier. All secondary rights arise from wrongs, which
are violations of primary rights, and these secondary rights can be called by
various other names, such as ‘sanctioning’ or ‘remedial’. Then, even according
to Austin himself, who is extremely sparing in his use of ‘remedy’ and ‘remedial’,
the remedial right occasionally becomes simply a ‘remedy’.41 We have seen above
39
Beatty v Guggenheim Exploration Co. 225 NY 380, 386 (1919) (Cardozo J); a ‘remedial institution’ rather
than a ‘substantive institution’: R. Pound, ‘The Progress of the Law—Equity’ 33 Harvard LR 420, 421 (1920);
‘A constructive trust is then the remedial device through which preference of self is made subordinate to loyalty
to others’: Meinhard v Salmon 249 NY 458, 467 (1928) (Cardozo CJ).
40
Above n 15 at 788.
41
Ibid at 794, 948. As for the sparing use of the language of remedy, the reason is his preference for ‘sanction’,
‘sanctioning’, and ‘secondary’.
examples of judicial language in which the remedial rights which arise from
conversion and from breach of trust seem to be referred to as remedies.42
In a fascinating and sophisticated paper which takes a position diametrically
opposed to the theme of this lecture, Mr Barker of the University of Southampton
appears to take a very Blackstonian position, in that he insists on creating a
clean contrast between remedy and right. He says:
Primary rights describe a person’s initial legal entitlement. Secondary rights describe
the remedies to which he is entitled if the primary right is violated. When this violation
takes place (for example, a tort is committed or contract breached), we talk of there
being an injustice and a legal cause of action. Causes of action describe those events
which consist in the violation of private law rights, or, to use different words of my
own, primary injustices. Remedies constitute the law’s response to such events and
describe a secondary level of entitlement, substituted by the law for the first. Causes
of action provide us with answers to the question when legal relief is to be given;
remedies answer the question how it is to be given.43
It will be necessary to return to Mr Barker’s thesis below.44 For the moment it
suffices to say that, as the second line of the quotation shows, the contrast which
he wants to create between ‘right’ and ‘remedy’ is not natural but imposed. It
is a choice which he urges, rather than being inherent in the words themselves.
For these secondary rights which are remedies are confessedly none the less
rights. The word ‘remedy’ adds nothing that could not be carried by ‘right’.
As we have already noticed, Blackstone never uses the expression ‘remedial
right’, and he never uses ‘remedy’ in the sense of ‘remedial right’. For him the
law’s immediate response to a wrong was not a right or a remedy but an action,
and the action was not the remedy but the means to a remedy. He was remarkably
careful about this. We will come to his meaning of ‘remedy’ at fourth place in
this list. It is fair to say that modern writers on remedies might want to say that
they mean to use the word in that sense, not in this second sense. But to take
that position they would have to show what language they use of that which
comes between causative event and judgment. For Blackstone the wrong gave
rise to the action and the action to the remedy. Austin thought the wrong gave
rise to a remedial right and sometimes allowed himself to call the right a remedy.
The modern books on remedies seem to say simply that the wrong gives rise to
the remedy, and that the rest is enforcement.
The many books on remedies seem to do virtually nothing but take a microscope
to Austin’s remedial rights, the rights triggered by wrongs.45 That is to say, they
42
Text to nn 26–9.
43
K. Barker, ‘Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are Right’ [1998] CLJ 301,
319.
44
Text from nn 46 and 91 below.
45
Particularly graphic in this regard is the diagram through which Tilbury, Noone, and Kercher explain the
structure of their book, which shows the principal judicial ‘remedies’ as compensation, restitution, punishment,
and coercion, all of which give rise to the problem of ‘the enforcement of remedies’: M. Tilbury, M. Noone, and
B. Kercher, Remedies, Commentary and Materials (2nd edn, 1993) 9. The same diagram can be constructed as
distinguishing rights and the realization of rights: P. Birks, ‘The Law of Restitution at the End of an Epoch’ (1999)
28 UWALR 13, 17.
are not interested in defining causative events but concentrate on the detailed
content of the plaintiff’s entitlement once the causative event has happened.
That can be justified as a matter of convenience, because books and courses
often do not have time to get down to that detail, but the convenience must not
be bought at the cost of suggesting that these ‘remedies’ are anything other than
the rights which arise from the various wrongs.
(iii) ‘Remedy’ as a right born of a grievance or injustice

Blackstone, and Austin, appear to have thought that the courts responded only
to wrongs. There was only one category of cause of action. We will return to
that in the second part. Those who believe in that monopoly will have no room
for remedy in this third sense. But, anticipating the second part of this lecture,
it is important to note that a narrower and non-exclusive definition of a civil
wrong, or a revised analysis of some so-called wrongs, will leave room for
causative events which are not wrongs. The right to recover a mistaken payment
is an example. A mistaken payment triggers a right to restitution. Even if the
defendant’s receipt of a mistaken payment is not a wrong, as indeed it is not,
the claimant can present himself as troubled or aggrieved, and the right of
recovery can then be described as the remedy for that grievance. In the first
meaning introduced above it is ‘mistaken payment’ or ‘money had and received’
which is the remedy for the grievance, these being well-worn ways of indicating
the action or cause of action arising on these facts, or the actionability of the
facts. Nowadays we might say, in that sense but at a high level of generality, that
‘unjust enrichment’ was the remedy.46 However, here in the third meaning the
right to restitution is the remedy. It is perfectly intelligible to assert that the
restitutionary right, whether in personam or in rem, is the remedy for the troubling
situation after a mistaken payment. Even if there is no wrong to make better,
there is at least a problem and an anxiety.
Rescission for innocent misrepresentation is an interesting case. It is very
common to refer to rescission as a remedy, for the very good reason that
the events which trigger rescission nearly all entail the pain of disappointment
or regret. But innocent misrepresentation certainly does not engender its legal
consequences as a tort or other wrong, and, remedy though it be, the
consequence of the event is indisputably a right to rescind, which in turn
can be sub-divided into rights to eliminate any obligation to the misrepresentor,
to revest any identifiable res which had passed into the other’s hands, and to
reclaim money.
In ‘Rescuing Remedialism’ Mr Barker escapes the error of saying that every
cause of action is a wrong by saying instead that every cause of action is an
injustice. This allows him, as he maintains, to preserve the two-tier structure of
primary rights and secondary ‘remedies’ for violations, without having to say
46
Cf. the discussion of tort and contract as events and remedies, text from n 36 above.
that an event such as a receipt of a mistaken payment is a wrong. In taking this
position he provides a very exact illustration of the use of ‘remedy’ in this third
sense:
Whilst it is true to say that the primary/secondary rights distinction has traditionally
been drawn in the context of civil wrongs . . . which do involve the breach of primary
duties, this is largely a product of history and there is no reason why it should be
confined to cases in which the primary injustice happens to be describable in this way.
The key point of the analysis is that one level of entitlement (right) is replaced by
another (remedy) not that the plaintiff’s cause of action consists in a civil wrong.47
(iv) ‘Remedy’ as a right born of the order or judgment of a court

The rights which we ultimately enforce through the machinery of execution are
not the rights which we stand on in making our claims in court. The rights we
claim are transformed or novated, and the rights which we enforce through the
various means of execution are rights born of the order or judgment of a court.
There is no doubt that Blackstone used ‘remedy’ in, and only in, this sense. For
him the word indicated the enforceable order or judgment of a court. The wrong
gave rise to the action as the means or instrument for obtaining the remedy.
And the remedy was the judgment which defined the plaintiff’s enforceable
entitlement. Although Blackstone never uses the word ‘right’ in this connection,
it is very important to notice that if we could interrogate him he would almost
certainly admit, not only that the judgment generated a right, but also that the
judgment was obtained as a matter of right. The second limb of that proposition
entails admitting and adopting Austin’s terminology. That is, it involves admitting
that from the moment of the wrong the victim has a right. That admission would
damage the semantics of Blackstone’s scheme which, as we have seen, rolls along
from the normality of superstructural rights, to the pathology of wrongs which
consist in the violation of those rights, to actions as the vehicles to the remedies
for those wrongs, and finally to the remedy itself and to execution, which in an
ideal world restores the original normality. Nevertheless, the semantic damage
to the scheme is relatively trivial. In substance, although he avoids the word,
Blackstone recognizes and insists upon the victim’s right to his remedy. He
would be appalled to be thought weak on rights. The following passage is crucial:
The judgment, though pronounced or awarded by the judges, is not their determination
or sentence, but the determination and sentence of the law. It is the conclusion that
naturally and regularly follows from the premises of law and fact, which stand thus:
against him, who hath rode over my corn, I may recover damages by law; but A hath
rode over my corn; therefore I shall recover damages against A. If the major proposition
be denied, this is a demurrer in law; if the minor, it is then an issue of fact: but if both
be confessed (or determined) to be right, the conclusion or judgment of the court
cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary
caprice of the judge, but on the settled and invariable principles of justice. The
47
Above n 43 at 321.
judgment in short is the remedy prescribed by law for the redress of injuries, and the
action is the vehicle or means of administering it.48
The essential point is that Blackstone’s ‘remedy’—the court’s order—cannot be

contrasted with ‘right’ because, although he never says so, the order generates
an enforceable right and, from the moment of the commission of wrong, the
victim has, in his view, but only in our terms, a right to the award which the
judgment makes. The judgment transforms or novates that right for the purposes
of execution, but the right antedates the judgment. There is in fact only a
terminological difference between Blackstone and Austin. For Austin the response
to wrongs is a secondary or remedial right, for Blackstone an action and a
remedy. But there is no real difference between them, only competing ter-
minology. Blackstone would have found abhorrent the notion that the judgment
might be regarded as a matter of grace, within the discretion of the judges. This
brings us to the fifth and most modern meaning of ‘remedy’.
(v) ‘Remedy’ as a right born of a court’s order issued on a discretionary basis

So far we have noticed one meaning of ‘remedy’ which does not compete with
‘rights’ and three which do. The second, third, and fourth meanings all describe
rights. This fifth meaning is different. If the court regards its order as strongly
discretionary, its content cannot reflect an interior right. The discretion which
is interposed between the plaintiff and the order shows that he has no right to
that which he wants ordered.49 The word ‘strongly’ needs to be added. Many
judicial orders are weakly discretionary. Orders for specific performance and for
injunctions and all others rooted in the Court of Chancery are weakly dis-
cretionary. The discretion has been settled over the centuries. To speak of a
right to specific performance or injunction or an account is not nonsense. We
know on what facts a person is entitled to such orders.50 All rights are qualified,
as for instance by the existence of defences.51 The judicial discretion historically
attached to equitable ‘remedies’ can be, and should be, restated in terms of such
qualifications, usually if not always in the nature of defences. However, if the
48
Blackstone, 3 Commentaries 396. Cf Heineccius, Elementa iuris civilis secundum ordinem institutionum (3rd edn,
1751) 350, on J Inst 4.6pr. Resisting Justinian’s (and Celsus’s) famous definition of an action as a ius, Heineccius
insists that it must be contemplated as a medium legitimum persequendi in iudicio iura . . . (a legal means for pursuing
rights in court).
49
Professor Beatson has drawn my attention to the analogy to be drawn with remedies in public law in which
the successors to the old prerogative writs issue as of right (ex debito justitiae) within a core of central facts but,
subject to a perhaps increasingly strong discretion in the surrounding periphery. Lord Bingham (Sir Thomas
Bingham), ‘Should Public Law Remedies be Discretionary?’ [1991] PL 64; J. Beatson, ‘Prematurity and Ripeness
for Review’ in C. Forsyth and I. Hare (eds), The Golden Metwand and the Crooked Cord (1998) 222, esp. 225–6.
50
Barker, above n 43 at 317, defends discretion, but what he is defending is this kind of weak discretion, not
the ‘instance-specific appropriateness’ of the discretionary remedialists. Gardner also seems to believe that unruly
strong discretions can be reduced to judicial discretions relatively rapidly, thanks in part to the analysis on hand
from jurists of his own kind: S. Gardner, ‘The Element of Discretion’ in P. Birks (ed), The Frontiers of Liability,
vol 2 (1994); see also S. Gardner, ‘The Remedial Discretion in Proprietary Estoppel’ (1999) 115 LQR 438, esp.
at 464–8.
51
This is sensitively discussed by Beatson: J. Beatson, Use and Abuse of Unjust Enrichment (1991) 250–1.
court has a strong discretion to give or to withhold, and to shape, the order
which it will make, clearly the order becomes a remedy which is not a right.
There are, of course, situations in which modern law has found it necessary
to give the court a strong discretion, usually situations in which for one reason
or another negotiation, which would be the normal recourse, is impossible,
because the parties are not speaking to each other. Such strong discretions have
been introduced into particular situations by statutes.52 The language of remedy
here fills a vacuum. What do parties have when the court may or may not do
something for them? It is not a right, or the right goes no further than the right
to supplicate. Nor can they quite be said to ‘have’ a remedy, since ‘have’ implies
too strong a present entitlement. But remedies can be said to be available, in
the discretion of the court.
The remedy which is not a right but only a hope that the court will see fit to
create a right has, in one manifestation, made a bid to escape the localities into
which it has been legitimately introduced. The modern remedial constructive
trust uses the word ‘remedial’ precisely in this sense, essentially as a synonym
of ‘discretionary’. Under that label, a court claims a discretion to raise an
equitable proprietary interest tailored to the justice of the case and, since this is
a zero sum game, to take the same from another. This usage is clearly explained in
Westdeutsche Landesbank Girozentrale v Islington LBC.53 Lord Browne-Wilkinson,
taking care to emphasize that such trusts were for future consideration and for
the moment remained unknown to English courts, said, speaking of their possible
introduction:
A remedial constructive trust, as I understand it, is . . . a judicial remedy giving rise to
an enforceable equitable obligation: the extent to which it operates retrospectively to
the prejudice of third parties lies in the discretion of the court.54
And then a little later:
The court by way of remedy might impose a constructive trust on a defendant who
knowingly retains property of which the plaintiff has been unjustly deprived. Since the
remedy can be tailored to the circumstances of the particular case, innocent third
parties would not be prejudiced and restitutionary defences, such as change of position,
are capable of being given effect. However, whether English law should follow the
United States and Canada by adopting the remedial constructive trust will have to be
decided in some future case when the point is directly in issue.55
C. The ‘Remedial’ Constructive Trust

It will serve by way of a short recapitulation of all these five meanings of ‘remedy’
and ‘remedial’ to notice that a constructive trust could be ‘remedial’ in any one
of the five. Thus:
52
Below n 75.
53
[1996] AC 669 (HL).
54
Ibid at 714–15.
55
Ibid at 716.
(1) Every constructive trust relieves a problem troubling a plaintiff and is

always a remedy in the sense of being a formula for relief or the legal language
encapsulating the willingness of the law to respond to his problem. I have called
this ‘actionability’, connecting it to the more concrete earlier sense of ‘action’.
(2) A constructive trust can be remedial in the sense of being, or entailing,
the right generated by a wrong and, as such, operating as the remedy for the
wrong. We have seen a prominent example in Attorney-General for Hong Kong v
Reid.56 There Reid took bribes to pervert the course of justice, and the Privy
Council said that from the instant that he received each bribe the Government
of Hong Kong acquired an equitable proprietary interest in the money. Since
the money could be traced into farms in New Zealand, it could assert that
equitable interest in those farms. This interest was not the creature of a strong
discretion. It came into existence as the facts happened, and the facts in this
case operated in their character as a wrong. Hence, if a right generated by a
wrong is a remedy, this constructive trust was remedial, albeit only in the second
sense, not in the fifth. In Canada, Lambert JA has described a constructive trust
as ‘remedial’ in exactly this second sense, unless perhaps he intended the
following sentences to have the fourth sense: ‘A remedial constructive trust is a
trust imposed by the court as a remedy for a wrong. The entitlement to that
remedy may be a matter of substantive law, but the trust itself is not created by
the parties, or even by the obligation to make restitution, but by the order of
the court’.57 More recently, in Coulthard v Disco-Mix Club Ltd, the notion of
‘remedial constructive trust’ has again appeared in this second sense.58
(3) A constructive trust which responds to a grievance short of a wrong
likewise implies a right which remedies that grievance. The trust responding to
the mistaken payment in Chase Manhattan Bank NA v Israel-British Bank
(London) Ltd59 was in that sense a remedy for mistaken payment. Goulding J
held that, where a bank mistakenly paid a sum twice, the effect of the second
payment was to turn the recipient into a trustee. A mistaken payment is not a
wrong, but being out of one’s money by mistake can be represented as a trouble
or grievance needing a cure, so that the rights implicit in a constructive trust
can in this sense be described as a remedy.
(4) Judgments in the form of a declaration of constructive trust can be called
remedies, in the Blackstonian sense, even where there is no exercise of any strong
discretion but the rights which are declared are, as in the cases just mentioned,
regarded as the immediate creatures of the facts.
Finally, the currently dominant meaning of ‘remedial constructive trust’ is, as
we have seen, the trust created by a judgment and based on a strong discretion,
where ‘strong’ is used in order to identify a free discretion and distinguish it
56
(1994) AC 324 (PC).
57
Atlas Cabinets and Furniture Ltd v National Trust Co. (1990) 68 DLR 4th 161, 173.
58
[1999] 2 All ER 457, 479 (Jules Sher QC): ‘The second type of trust is merely the creation by <?of> the
court by way of suitable remedy to meet the wrongdoing alleged’.
59
[1981] Ch 105.
from the settled judicial discretion associated with all orders and judgments
historically derived from the Chancery.
The very fact that this one figure, the constructive trust, can be said to be
remedial in any one of the five senses which have been identified might be
thought to raise doubts about the use of ‘remedy’ in serious analytical discussion.
Not one of these meanings can claim any special priority. That is, no single one
is more natural or obvious than the other four. The fifth sense, where ‘remedial’
means ‘discretionary’, is being pushed into the foreground. In a competition
between the five for pride of place it might come last. ‘Discretionary’ is the least
material sense of ‘remedial’.
D. Where ‘Right’ and ‘Remedy’ Overlap, ‘Right’ Should Prevail

As we have seen, ‘right’ and ‘remedy’ are not coterminous. But in three of the
five senses of ‘remedy’ the ‘remedy’ is also a right, so that in those senses the
two can be used synonymously. Can it matter which we choose to use? In this
section I give five reasons why we should not use ‘remedy’ where we mean
‘right’. Part 2 then enlarges on one of those reasons.
(i) Duplicated and overlapping terminology

All lawyers ought to have an instinctive aversion to terminological confusion.
This is the most general reason, but none the less weighty for its generality.
Rationality in law depends on careful and well-understood taxonomy, kept under
constant critical pressure. The common law is not good at maintaining this
constant taxonomic debate, but the fact that we tend to neglect it does not
diminish its importance. Quite the contrary. Multiplication of terminology is
always dangerously confusing. Prunella modularis, always ‘hedge-sparrow’ when
I was young, seems usually to be ‘dunnock’ now. This has children asking which
small brown bird is the dunnock and which the hedge-sparrow. The danger of
multiplying entities is more acute when the words in question are not exact
synonyms, as ‘right’ and ‘remedy’ are not. There is a constant danger of slippage
between the synonymous sector and the rest of the spectrum. Is the author of a
book on remedies writing on remedies as opposed to rights or on rights under
the name of remedy? Will he himself know when he is doing one and when the
other? The presumption in the mind of the uninitiated will always be that
different names signify different things. So, we have to make a choice. This is
not of course in itself a reason for deciding that ‘right’ is preferable to ‘remedy’.
(ii) Multiple causes of action

We started from the image of the jellyfish: a civil wrong trails a number of
remedial strings. The wrong itself is a remedy in the first sense discussed above.
The trailing strings are rights born of the wrong, and hence remedies in the
second sense. Some jellyfish, the Portuguese Man of War is one, are in reality
not single organisms but rather aggregations of individuals. The naked eye is
deceived.60 Under the lawyer’s magnifying glass, some sets of facts are similar
in that they reveal a plurality of actions, perhaps for both contract and tort and,
at a lower level of generality, maybe several different torts. This is elementary,
but in England it has recently attracted special attention.61 The old language of
waiver of tort failed to distinguish between wrongs with more than one remedial
string and wrongs which could be reanalysed to reveal alternative causes of
action.62 Again, the termination of a contract raises similarly distinct questions.63
The victim may have multiple causes of action, as for breach of contract
and for the unjust enrichment of the species traditionally called ‘failure of
consideration’,64 and he may have alternative remedial rights for the wrong of
breach as such, as, for instance, for expectation damages, reliance damages, or,
possibly, restitutionary damages.65
The language of remedy cannot clarify this important distinction between
multiple causative events hidden within one set of facts and multiple rights born
of a single causative event. The reason is obvious. ‘Remedy’ can include both.
Multi-actions are multi-remedies under the first meaning described above, and
multi-rights are multi-remedies under the second meaning. One only has to
recall that different causes of action may have different limitation periods in
order to show the importance of not confusing the plaintiff who has more than
one cause of action with the plaintiff with only one cause of action but a choice
between the plurality of rights triggered by that set of facts.66
(iii) Sabotage of the classification of rights by causative events

It is essential for the law to make apparent what rights are recognized and from
what facts these rights arise. Though the common law thinks little enough about
it, the dominant taxonomy, derived ultimately from Gaius though much modified
over time and varied slightly in different civil codes, does focus on these two
60
Wilson, n 24 above, 6.
61
Henderson v Merrett Syndicates [1995] 2 AC 145 (HL), superbly discussed by Burrows: A. Burrows,
Understanding the Law of Obligations (1998) 16–44.
62
Even the great United Australia case, above n 25, did not sufficiently make clear that waiver of tort could be
one of three different things: (i) a choice between different causes of action (alternative analysis), (ii) a choice
between different rights arising from one tortious cause of action, and (iii) ratification of unauthorized agency. See
the discussion of the Limitation Acts and Beaman v ARTS Ltd [1948] 2 All ER 89 and Chesworth v Farrer [1967]
1 QB 407 in Lord Goff of Chieveley and G. H. Jones, The Law of Restitution (5th edn, 1998) 790–1; also P. Birks,
Introduction to the Law of Restitution (1989) 314–18, 347–9.
63
Above n 11 at 88–103.
64
A possibility explored in Baltic Shipping Co. v Dillon, The Mikhail Lermontov (1993) 176 CLR 344 (HCA).
The great case of Moses v Macferlan (1760) 2 Burr 1005 is itself one in which the key to all its difficulties lies in
distinguishing between two causes of action and two responses to one cause of action. The cause of action in
unjust enrichment will not work, the cause of action for the wrong of breach of contract will and does, for only
the latter escapes the recurrent criticism that the plaintiff’s victory reversed a judgment which had not been set
aside.
65
This third alternative has received encouragement from the Court of Appeal in Attorney-General v Blake
[1998] Ch 439, 455–9.
66
Chesworth v Farrer [1967] 1 QB 407, and the discussion referred to in n 62 above.
kinds of differentiation.67 What kinds of right are there? There are different sets
of answers, but under persistent critical pressure all jurisdictions within or
derived from the western tradition still persist in making a first division between
proprietary rights (rights in rem) and personal rights (rights in personam), the
latter usually known from their negative end as ‘obligations’. This makes the
line between the law of property and the law of obligations.
It is important to keep in mind that the law of obligations is a fragment of a
classification which begins with questions about kinds of right. In the English
language it is virtually impossible to move ‘obligation’ away from the liability to
perform which correlates with the personal right to call for a performance.
Bankers can speak of debts as assets and write off as bad those which have
become unsaleable, but ‘my obligation’ is irresistibly ‘my liability’ or ‘my duty’.
An obligation is not easily represented as an asset. This should not distract from
the fact that the law of obligations is the law of rights in personam and balances
the law of property, the law of rights in rem. It is correct, though momentarily
shocking, to refer to the law of obligations as a category of right, and to do so
serves to highlight the balance between rights in rem and rights in personam.
The choice of ‘remedy’ over ‘right’ demolishes the taxonomy which refers
rights to categories of causative event. The category of rights in personam arising
from wrongs is the law of obligations ex delicto, tortious obligations.68 Gaius said
that every obligation arises from a contract, from a delict, or from various other
events.69 Most modern systems take one more nominate category out of the
miscellany, arriving at a four-term classification: every obligation arises from a
contract, a delict, an unjust enrichment, or various other causes. The sabotage
arises in this way: if we speak of remedies ex delicto instead of rights ex delicto
we delete that category from the taxonomy of rights. It simply disappears. Nor
can the other categories follow suit by switching to the language of remedy, or
not without using it in a completely different sense. A wrong is an event which
naturally needs a remedy, and rights from wrongs naturally become remedies;
but a contract is not a wrong and not grievance, and rights ex contractu cannot
without extreme artificiality be called remedies. Proprietary rights, as a class,
rarely arise from wrongs. They are correspondingly rarely susceptible of being
called remedies. It follows that the adoption of the language of remedy cannot
but destroy the taxonomy which refers kinds of right to kinds of event. That is
the best taxonomy we have, and, in order to defend the practice which ends in
destroying it, one would have to prove, first, that that taxonomy was after all
inherently vicious, and, secondly, that another, and better, taxonomy could be
built up on the foundation of a defined conception of ‘remedies’.
67
A brief investigation of the roots: P. Birks and G. McLeod, Justinian’s Institutes (1987) 16–27.
68
An imperfect truth, for ‘tort’ remains restricted to the common law, leaving equitable equivalents as meta-
torts, growing wild in a neglected corner: P. Birks (ed), The Classification of Obligations (1997) 14–16, and ‘Equity
in the Modern Law’ (1996) 26 UWALR 1, 25–52.
69
Digest 44.7.1, from Book 1 of Gaius, Everyday Law. The Roman story of the miscellany then declines into
the misinforming categories of quasi-contract and quasi-tort.
In his excellent book on remedies—which is indeed excellent for all that,

if the thesis of this lecture is correct, it is preponderantly concerned with
rights—Professor Burrows seeks to overcome or prevent this sabotage. He says:
Tortious and contractual obligations are the two main types of obligation recognized
in English law. A contractual obligation arises where one party makes a promise to
another . . . The promisor is under an obligation to perform his promise and, should
he fail to do so, the promisee has a cause of action against him for breach of contract.
A tortious obligation, on the other hand, is an obligation not to wrong another by
conduct that the different torts specify to be wrongful. Should a person break such an
obligation, the person wronged has a cause of action against him for the tort.70
Professor Burrows, writing on remedies, here seems to manage to retain intact
the two chief categories of obligations (i.e. rights in personam) which emerge
when obligations are divided by a causative event. He has done it in a totally
Blackstonian manner. He contrives to place these categories on the superstructural
or primary plane. Once the superstructural right has been infringed, revealing a
wrong, whether a breach of contract or a tort, we enter the world of remedies.
But something has gone awry. That is, it has gone awry from the standpoint of
one who believes in the necessity of a taxonomized answer to the question,
‘From what events do rights arise?’ In the restatement by Professor Burrows a
contractual right is a right which arises from a contract. But a tortious right is
not a right which arises from a tort: ‘A tortious obligation . . . is an obligation
not to wrong another by conduct that the different torts specify to be wrongful’.
A tortious right, in this sense, is thus anterior to the tort. It arises, like many
primary rights, from entry within the jurisdiction. Most of us enter the jurisdiction
by birth or, perhaps more accurately for these purposes, by reaching the age of
full capacity.
(iv) Rightlessness and remedies in the fifth sense

The fourth argument against a preference for ‘remedies’ over ‘rights’ is the
danger that the fifth sense of ‘remedy’ will take over. In the fifth sense, it will
be recalled, the meaning of ‘right’ and ‘remedy’ diverge, because the claimant
has no right to the order which he wants the court to make, the order being in
the gift of a court with a strong discretion whether it will or will not give it.
Generalized in the imagination across the board, this becomes a distinctly
unpleasant prospect. Blackstone would have hated it. Coke too.
I mention the work of Professor Burrows again in order to underline the fact
that those who favour the language of remedies do not necessarily favour it in
this fifth sense. He certainly does not. All his work is directed towards precisely
that transparent rationality which alone can preserve the legitimized authority
of the law and the courts in a plural society. But some excellent lawyers, with
the highest and most humane motives, are now building a new model of the law
70
Above n 12 at 3.
in which the dominant taxonomy is a taxonomy of remedies, to be applied in
the court’s discretion in an instance-specific manner according to criteria of
appropriateness. This view emerges from equity and, more particularly, from a
regression to the strongly discretionary equity of a long-gone age, but it seems
not to confine itself within equity, as indeed it hardly could in a world which is
no longer institutionally dualist. The Hon. Justice Paul Finn thus welcomes
what he calls ‘the progressive divorce between remedy and doctrine’ and finds
it surprising that anyone should take against the notion that a judge’s task should
consist in making ‘a thorough analysis of the facts followed by the application
of the broad principles of conscience, fairness, and reason’.71 At the end of the
same paper he sees the future as one in which ‘doctrine and remedy cease to be
perceived in a fixed, linear relationship, as “appropriateness” makes its pro-
gressively accepted claim to recognition as the arbiter of remedy’.72
This is a nightmare trying to be a noble dream. The core of discretionary
remedialism is the separation of liability and remedy. Liability triggers the courts’
discretion in the matter of the remedy. The aim seems to be to arrive at something
which is impossible for the human intellect to achieve, namely, perfectly flexible
focus without sacrifice of stability and predictability. Criminal sentencing provides
a rough model. What are the objections to the operation of that model in the
civil law? They flow from the incompatibility of the goals and the certain
destruction of the fragile intellectual structure of the law.
First, strong remedial discretion would make the management of litigation
impossible, promoting unjust settlements based on guesswork as to the operation
of the discretion. We often recite the maxim ‘Interest rei publicae ut sit finis litium
(It is in the public interest that there should be an end to suits)’. We should
remember that there is at the same time no interest in litigation deterred by, or
settlements procured because of, needless uncertainty. Next, and more serious,
is the objection that the rightlessness implicit in discretionary remedialism would
deprive citizens of their dignity, bringing them as child-like supplicants—or, in
the case of defendants, like convicted criminals—before a court which had grown
much too big for its boots. Thirdly, this view of the law and of the role of the
courts would ultimately threaten the stability of our society, because it would
destroy the legitimacy of judicial authority. It would be institutionally antithetical
to the sophisticated pluralism which characterizes a modern democracy. Law
which aspires to transparent rationality can be accepted by all sub-communities,
71
The Hon. Justice Paul Finn, ‘Equitable Doctrine and Discretion in Remedies’ in W. R. Cornish et al. (eds),
Restitution, Past, Present and Future (1998) 251, 260, quoting The Rt Hon. Lord Cooke of Thorndon (then Sir
Robin Cooke) ‘The Place of Equity and Equitable Doctrines in the Contemporary World’ in D. W. M. Waters
(ed), Equity, Fiduciaries, and Trusts (1993) 29. Two pages earlier the latter author paints a picture of the judicial
function which would throw it open to almost anyone who could read and write.
72
Finn, above n 71 at 273–4. This same prospect seems to be welcomed by J. D. Davies, ‘Restitution and
Equitable Wrongs’ in F. D. Rose (ed), Consensus ad Idem: Essays in Contract in Honour of Guenter Treitel (1996)
158 and in ‘Duties of Confidence and Loyalty’ [1990] LMCLQ 4. Only after I had revised this lecture did I
receive for review D. M. Wright, The Remedial Constructive Trust (1998). That book shares the same view of the
law’s destination, the menu of discretionary ‘remedies’ in one hand and a rough overview of ‘obligations’ in the
other.
but a strong and generalized discretion supposes courts with early Stuart con-
fidence in the divine right of those who exercise authority and no less confident
that their own morality is, or ought to be, shared by all members of the society
under that authority.
Discretionary remedialism is making some advances, but it is still only a
programme for the future. It will never be accepted in more than a heavily
qualified form. Its advocates hedge their bets. And the judges are not so arrogant,
nor so confident of their own righteousness, as to be swept along. They are as
anxious as anyone about the problems of sustaining the legitimation of the
authority of the law in a plural society, and they do not seek, and are not
equipped for, the intensification of personal responsibility which comes with
contempt for rationally constructed rules and principles. Those who wish strong
discretions upon them, if they get their way, will find that, by imposing new and
heavy burdens on those already overladen, they have made a difficult job
impossible.
At all events the position in English law is quite clear. These multiple strings
which dangle from a wrong, whether they be rights or remedies, are not in the
court’s discretion but, as Blackstone affirmed, in the safe keeping of the law
itself. Where there is a discretion, it is now weak and rule-based. Specific
performance, for instance, is said to be discretionary, but we know when it will
and will not be given. There is no inherent jurisdiction to exercise a strong
discretion. Further, where the law does leave some element of choice, it is for
the plaintiff, not the court, to make the election.73 And the remedial constructive
trust, which was to be the Trojan Horse of discretionary remedialism, has on
this occasion not been dragged by dupes within the city walls. Quite to the
contrary, in Re Polly Peck International Plc (No. 2)74 a strong Court of Appeal
has looked at it and sent it packing. As Nourse LJ said in that case, ‘It is not
that you need an Act of Parliament to prohibit a variation of property rights.
You need one to permit it: see the Variation of Trusts Act 1958 and the
Matrimonial Causes Act 1973’.75
At the moment therefore there is no immediate prospect in this jurisdiction
that dealing in remedies, rather than rights, will draw the law towards the fifth,
discretionary, sense of that word. Even so there remains a latent danger real
enough to warrant precautions. We ought therefore to prefer the language of
rights, not only because we must choose one way or another, and not only in
order to prevent the destruction of the taxonomy which classifies rights and their
causative events, but also as a prophylactic against the rightlessness implicit in
discretionary remedialism.
73
Such is the law illustrated by the cases introduced at the beginning; see text to nn 26–7 above.
74
[1998] 3 All ER 812 (CA), Mummery, Potter, and Nourse LJJ. Cf in New Zealand, Fortex Group Ltd v
MacIntosh [1998] 3 NZLR 171 (NZCA), Gault, Keith, Tipping, Henry, and Blanchard JJ.
75
[1998] 3 All ER 812 at 831. Cf the Inheritance (Provision for Family and Dependants) Act 1975 and the
Forfeiture Act 1982 recently applied by the Court of Appeal in Dunbar v Plant [1997] 4 All ER 289 (CA). It is
of course true that in these areas ‘discretion has triumphed’: S. M. Cretney, ‘Succession—Discretion or Whim,
Freedom of Choice or Caprice?’ (1986) 6 OJLS 299, 300. However, it is a principle worth defending that it still
takes a statute to do it.
(v) Distortion of the not-wrongs
The final argument for repressing the language of remedies is that the natural
sympathy between the word ‘wrong’ and the word ‘remedy’ seems to encourage
the error which both Blackstone and Austin made, namely, the error of thinking
that the courts concern themselves only with wrongs. In other words it leads to
the de-naturing, or re-naturing, of those causes of action which are not wrongs,
an error which appears to be shared by the discretionary remedialists. However,
this objection requires rather more space and is therefore the subject of the next
part of this lecture.
2. Wrongs and Not-Wrongs

Blackstone and Austin both proceed on the basis that every cause of action in
the courts is a wrong or, in other words, an infringement of a primary or
superstructural right. That is incorrect. Whatever its origin, the relationship
between ‘wrong’ and ‘remedy’ is certainly a contributory cause of the persistence
of this error. ‘Remedy’ supposes something nasty which needs making better, a
grievance which requires relief. The word ‘wrong’ answers this need. It is
unfortunate that ‘wrong’, like ‘remedy’ itself, can be stretched. Those who come
to court come with grievances, burdens, complaints. One and all, they feel
wronged. It is plausible for that reason to say that the courts are only in the
business of remedying wrongs. But it is false, in the following sense. Wronged
as they all may feel themselves to be in being kept out of their rights, the facts
on which some claimants rely are not wrongs. Those that are not are themselves
not all of one kind, but I shall use ‘not-wrong’ to comprehend them all. Causes
of action are aggregations of facts which happen in the world and suffice to
trigger a legal response. A cause of action which is a not-wrong is one which
has this effect without being, or having to be characterized as, a wrong. When
the cause of action is a not-wrong, the court is not being asked to remedy a
wrong but to realize a primary right. It is thus a maddening fact, but no more
maddening than countless other distinctions that lawyers have to get used to,
that there are claimants who take their stand on a not-wrong and seek the
realization of a primary right who can quite properly be described as seeking a
remedy for a grievance and hence, largiori sensu, to be complaining of a wrong.76
A. Blackstone and Austin

It is important not to lose sight of the precise point of disagreement with the
Blackstone–Austin position. They do not deny that rights can and do arise from
not-wrongs. Indeed, as we have seen, Blackstone’s terminology commits him to
the view that rights only arise from not-wrongs, since what arises from a wrong
is an action and thence a remedy.77 But Austin, who is happy with the notion
76
Cf text to nn 33–9 above.
77
Text to nn 13 and 48 above.
that rights arise from wrongs, albeit remedial or secondary rights, can firmly say
that rights arise from wrongs and not-wrongs:
The events which are the causes of rights and duties may be divided in the following
manner: namely, into acts, forbearances, and omissions, which are violations of rights
or duties, and events which are not violations of rights or duties.
Acts, forbearances, and omissions, which are violations of rights or duties, are styled
delicts, injuries, or offences.78
In Blackstone’s terminology, ‘delicts, injuries, or offences’ are ‘wrongs’. So,

Austin is saying that causative events may be wrongs or not-wrongs. And, as we
have seen, Blackstone is substantially of the same opinion, only semantically
not. The point of difference arises from the strong line between primary and
secondary. From the point of view of the courts, the rights which arise from not-
wrongs are, for both Blackstone and Austin, always and only superstructural.
Even if rights are said to arise from wrongs and from not-wrongs, the courts
deal only with wrongs and their consequences. Austin is explicit:
What I affirm is, that every right of action arises from a wrong. I do not affirm that an
action may not be wrongfully brought, or may not be brought in a case where there
has been no wrong. So long as law and fact shall continue uncertain, questions will
frequently arise as to whether a wrong has been committed or not. . . . No Court of
Justice (acting as such) would decide on a question of law or fact without a suggestion,
on the part of the plaintiff, of a wrong, actual or impending.79
This position could be defended, almost, by relying on the terms of the old
forms of action and the fact that the actions of trespass and trespass on the case
had for most intents and purposes displaced all the first-generation actions.
Ejectment, for instance, though in substance a vindicatio of land, was formally
trespass. Indebitatus assumpsit, though in substance enforcing indebtedness arising
from loans, sales, and so on, was formally trespass on the case for the wrong of
breach of promise. It is difficult to see to what extent Blackstone intended to
rely on the almost total, but merely formal, victory of trespass and trespass on
the case. This is not the place to argue the point, but it seems likely that he did
intend his analysis to bear on the forms used and that he did not distinguish for
these purposes between those formal recitals and the underlying substance.
Austin, however, was certainly analysing substance, not form. And Austin knew
that his proposition was false.
Austin’s remedy for the falsehood was twofold. He thought that in some
activities courts should not be regarded as acting as such, but rather as registration
offices extending and assisting the law of contract. He would seem to have
intended this to take care of matters such as the levying of fines and the exercise
78
Above n 15 at 788.
79
Ibid at 793, cf 485–7.
of any declaratory jurisdiction.80 For the rest, any not-wrong should be regarded
as a ‘monstrous anomaly’ and eradicated. In other words, ‘not-wrongs’ should
be re-interpreted as wrongs, and if necessary the law should be changed to allow
the addition of the additional elements necessary to qualify them as such.81 One
way in which he thought this could be done was to create a wrong out of the
non-performance of the primary duty, which he thought could only be intelligibly
done by introducing a requirement of knowledge on the part of the defendant
that he was under that duty. For example, the enforcement of every debt could
and should be made subject to the requirement of a prior demand by the creditor,
the function of the demand being to generate the wrong of knowing default.82
B. Not-wrongs
According to the taxonomy of causative events ultimately descended from the
advance made by Gaius in the second century, which was introduced above,
there are three categories of not-wrongs which generate rights directly realizable
in the courts. ‘Directly’ here means that they are realized without the courts
having to conceptualize the immediate reason for their intervention as a wrong
consisting in the violation of a primary right. In other words there are three
categories of causative event creative of primary rights which are realizable as
such. If we modify the usual order so as the more clearly to separate wrongs
and not-wrongs (rather than consent and not-consent), rights realized by courts
can be said to arise from four genera of events, from wrongs and from not-
wrongs, and, when from the latter, from manifestations of consent, from unjust
enrichment, and from miscellaneous other events.
Contract, a manifestation of consent, as opposed to breach of contract, a
wrong, generates rights which English law will under certain conditions order
to be specifically performed. Specific performance functions on the primary
plane. It could, with little enough trouble, be represented as a response to the
wrong of breach. But at the moment that is not the law, and only dogmatic
insistence on a monopoly of wrongs could necessitate a change.83 It is the not-
wrong of making a contract which generates the primary right realized when a
court orders, and then if necessary enforces, specific performance. The same is
true of unjust enrichment. In the same way a contractual debt, as for the price
80
Treitel points out that the common law achieved a declaratory jurisdiction, which only the Chancery formally
enjoyed, by making awards of nominal damages: above n 11 at 80. It cannot be said how Austin would have
analysed that practice.
81
Above n 15 at 485–6 and 793.
82
Ibid at 486. This constantly recurs driven by the same false beliefs (a) that a wrong has to be constructed,
and (b) that no wrong can be constructed without a requirement of fault: Citadel General Assurance Company v
Lloyds Bank Canada [1997] 152 DLR (4th) 411, 435 (SCC); cf N. J. McBride and P. McGrath, ‘The Nature of
Restitution’ (1995) 15 OJLS 33–49, as to which see the response of L. Ho, ‘The Nature of Restitution—A Reply’
(1996) 16 OJLS 517–33.
83
Above n 11 at 63–71; above n 12 at 335, citing, among other cases, Hashim v Zenab [1960] AC 316. Against
his own interest, but with typical generosity, Professor Burrows helped me get this right.
of goods sold or the remuneration for work done, arises from the contract itself,
not from the wrong of breach.84
Unjust enrichment is, always, a not-wrong. Once a claimant relies on the facts
in their character as a wrong, he is not relying on them in their character as an
unjust enrichment. He may indeed seek restitution for the wrong—that is, the
wrongdoer’s gain, not his own loss—and it is true that in a loose, lay sense his
story may then answer to the description of an unjust enrichment, but, analytically,
in relying on the facts in their character as a wrong, he has taken himself out of
the category of unjust enrichment and placed himself in the category of wrongs.85
The model for unjust enrichment is set by the mistaken payment and applies
throughout. As soon as the mistaken payment is received, the cause of action is
complete:86 the payer acquires his restitutionary rights, one in personam and,
subject to some controversy, one in rem.87 These rights can be demanded and
realized in court. There is no conception of wrong which will reach the receipt
of a mistaken payment. And again there is no need to turn a virtuoso somersault
to show that what the court actually realizes is the right arising from the wrong
of not repaying. A shop gives me change as though for a £20 note. I had paid
actually with a ten. I stuff the change in my pocket, unaware of anything amiss.
As I walk out the shop assistant realizes and calls out. There is no need to
construct a wrong at the moment that knowledge of the mistake supervenes.
The law is, and rightly, that I was unjustly enriched when I received the extra
change. The shop’s right to restitution was born from that unequivocal not-
wrong.88
The third category of not-wrong is difficult to handle. Nobody has been brave
enough to enumerate its members. A successful salvor’s right to a reward is one
case. Then there is negotiorum gestio. Suppose the famous dictum of Bowen LJ
in Falcke’s case were false,89 as in my own view it is false. The good Samaritan’s
claim to reimbursement might be configured as resting on unjust enrichment
but there are strong arguments for placing it in the miscellaneous category.
Taxable events are not wrongs. For instance, a fee earned generates a right in
the Inland Revenue to its slice of income tax. Again, a judgment debt arises
from a judgment.
This category becomes larger if the taxonomy by causative event is explicitly
extended to proprietary rights (rights in rem), for then it includes mixtures,
84
Above n 11 at 45; above n 12 at 315.
85
It has been a grave error in the development of the law of restitution not to make and underline this point.
I have myself been a prime offender. Repentance: P. Birks, ‘Misnomer’ in W. R. Cornish et al., Restitution, Past,
Present and Future (1998) 1, 10–18, ‘The Law of Restitution at the End of an Epoch’ (1999) 28 UWALR 13,
17–24.
86
Kleinwort Benson Ltd v Lincoln CC [1999] 4 All ER 513 (HL) 542, citing Baker v Courage & Co. [1910] 1
KB 56.
87
Chase Manhattan Bank v Israel-British Bank [1981] Ch 105, illuminatingly discussed in R. Chambers, Resulting
Trusts (1997) 128–32. The case is under some pressure: Lord Millett (then Sir Peter Millett), ‘Restitution and
Constructive Trusts’ (1998) 114 LQR 399, 412–13.
88
Authority in n 83 above.
89
Falcke v Scottish Imperial Insurance Co. (1886) 34 Ch D 234 (CA) 248. Goff and Jones, above n 62 at 482
favour overcoming the ‘regrettable’ influence of Bowen LJ’s dicta.
mergers, natural and artificial creation of new things, seizure of ownerless things,
and so on. But, in the context of the present discussion, that extension brings a
problem in its train which is too large to enter into, namely, whether proprietary
rights are ever directly recognized by English courts or, as Austin’s approach
would have it, only through wrongs consisting in their infringement. It is not
necessary to pursue that here, since even without doing so we can sufficiently
prove that some causes of action consist in not-wrongs and, further, that the
not-wrongs must themselves be divided into three categories.
In all these cases the right which the court realizes does not arise from a
wrong. If the word ‘remedy’ is used of it, it is used in the third sense introduced
above. That is to say, until the right is realized the claimant has a grievance, and
the existence of the grievance supplies the trouble which justifies calling the right
a remedy. Unfortunately, the resonance between ‘right’ and ‘remedy’ then seems
all too easily to demand that the grievance be called a wrong, and then for the
wrong to intensify its character as such—that is, to get itself equipped with a
requirement of mens rea, which all think usual and some believe to be the essential
hallmark of the category so described.90
C. Barker’s Two-tiered Not-wrongs

We noticed above that Mr Barker accepts that there are not-wrongs, such as
mistaken payments, but does not accept that in such cases the courts realize the
primary right. In his picture these not-wrongs share the two-tier structure
observable in relation to torts and breaches of contract.91 To say that the law
realizes the primary right is an ‘inappropriate analytical compression’ because
‘the plaintiff’s (secondary) entitlement to a court order for the restoration of the
money is not the same as his (primary) entitlement to it without such an order
. . . In truth, the right to the order is a subtle substitute for the primary right,
albeit a clever and, to the casual eye, indistinguishable one’.92 It is necessary to
set out in full his description of what happens when a mistaken payment is
made:
When a party receives a payment, which, by virtue of a mistake on the part of the
payer, the latter did not freely intend him to have, a primary injustice (unjust enrichment)
occurs. This injustice, though it exists independently of any wrongdoing on the part
of the recipient, describes a legal cause of action. The recipient has a primary duty to
return the benefit and the plaintiff has a corresponding primary right to it. But if the
recipient does not restore the benefit of his own accord, the court will intervene to
provide the plaintiff with a substitutionary (remedial) right to have it repaid.93
Mr Barker is not saying that the remedy arises from the wrong of not repaying.
He is saying that the primary right outside the court is different from the remedy
90
As Austin, above n 15.
91
Text to n 46 above.
92
Above n 43 at 321 and 322.
93
Ibid.
(the remedial right) which the court will recognize. Immediately after this passage
he goes on to affirm that this is all the more clear where what is received is a
chattel or a service and what the law gives is a money judgment.
This analysis is open to criticism on two grounds. First, if and so far as it is
relying on the transformative or novatory effect of the court’s order, it is
constructing its secondary level from what in tort and breach of contract would
be the tertiary level. If the tertiary level is to be counted at all it must be counted
across the board. To take the contractual example, on the primary level are the
rights born of the contract; on the secondary level are the remedial rights born
of the breach; and at the tertiary level is the right born of the judgment itself,
which is the right enforced by the process of execution. On the basis of that
three-tier comparator, the correct analysis of our not-wrongs would seem to be
that the plaintiff relies on, and the court realizes, the primary right arising from
the event but then, in giving judgment, novates it. In short, there are now two
tiers in comparison with three, and the proposition remains true that where the
cause of action is not a wrong the court passes upon and realizes the plaintiff’s
primary right.
The second objection bears on Mr Barker’s attempt to reinforce his point by
invoking what is essentially the doctrine of German law to the effect that the
initial restitutionary obligation is to return the very thing received and that only
in a case of impossibility of natural restitution is there a switch to an obligation
to pay its value.94 A study of the common counts shows this to be incorrect for
English law. If we ignore those parts of the action which were out-and-out
fiction, the action for money had and received can be seen to have alleged that
the defendant was indebted in such and such a sum as so much money before
that time had and received to the plaintiff’s use.95 The receipt of money to
another’s use put the plaintiff under an obligation to repay that sum, not that
money. In relation to work done and goods supplied the same kind of evidence
indicates that the obligation was at no point other than to pay the reasonable
value (quantum meruit or quantum valebat).
In the end Mr Barker does not show that by switching from ‘wrong’ to ‘primary
injustice’ one can defend the Blackstonian and Austinian view that every cause
of action is of the same kind. And he does not show that every cause of action
fits into the same two-tier structure of primary rights and secondary rights
(remedies). Two propositions survive: first, that the facts which make up causes
of action are either wrongs or not-wrongs, and, second, that where the cause of
action is a not-wrong the plaintiff stands on, and the court realizes, the primary
rights. However, whether it was quite what he intended or not, Mr Barker does
compel notice to be taken of the fact that remedies in the fourth sense (orders
and judgments of a court, which create rights and to which the plaintiff has a
94
Para 818 (2) BGB: ‘Is die Herausgabe wegen der Beschaffenheit des Erlangten nicht möglich oder ist der
Empfänger aus einem anderen Grunde zur Herausgabe ausserstande, so hat er den wert zu ersetzen. (If delivery
up is not possible on account of the nature of that which has been received or not open to the recipient for some
other reason, the recipient must pay over its value instead.)
95
Stephen on Pleading (2nd edn, 1827) 312.
right) do always novate the right which the plaintiff brings into court, whether
primary or secondary. A right arising from the judgment will often, in his words,
exactly replicate the initial right. In this sense the almost universal ‘remedy’
(fourth sense) in English law is specific performance. That is, the court orders
the defendant to do precisely that which the plaintiff’s right required him to do
when the facts happened from which that right arose. In classical Roman law
the opposite proposition obtained, in that the judge much less commonly ordered
‘specific performance’ of the right on which the plaintiff based his claim. This
was due to a combination of two factors, the universal rule of condemnatio
pecuniaria (judgment in money) and the focus of many of the standard pleadings
(formulae) on non-pecuniary claims. However, no Roman jurist would have made
much of this exercise of quantification in money. The judge had very little
room for manoeuvre, and there was no activity to dignify by such a name as
‘remedialism’.
D. The Line Between Wrongs and Not-wrongs

How should the line be drawn between wrongs and not-wrongs? This is an
enormously difficult subject, and it cannot be fully pursued here. It is so easy
to slip into doing it on the basis of fault.96 There must clearly be conduct, by
act or omission. In colloquial usage, given the conduct, a whiff of blameworthiness
will suffice to attract the language of wrongdoing. I have argued elsewhere that
neither fault nor harm is necessary to, or sufficient for, the legal conception of
a civil wrong.97 Lord Boardman, as he later became, inflicted no harm on the
Phipps family or their trust. On the contrary, he did them an immense amount
of good. And he acted with the utmost probity and care. He was accountable
for his profits none the less. And the reason was that he had committed a wrong.
The wrong was the breach of the fiduciary duty to avoid conflicts of interest.98
Similarly, conversion is a wrong, though it can be committed without dolus or
culpa: it is a wrong of strict liability. In the law a civil wrong is the breach of a
duty owed to another at common law or in equity. And common law duties here
include duties under statutes and under contracts. A wrong is conduct which
triggers its legal consequences in, and because of, its character as a breach of
duty. Fault and harm are commonly observable, indeed almost universally
observable, but they are not necessary and, a fortiori, they are not sufficient.
There are a number of cases in which this line is very sensitive and very easily
obscured. The most prominent are those in which it can plausibly be said that
the defendant has been guilty of a breach of duty but it is not, or may not be,
in that character that the facts generate the rights in question. For example, it
has become common to refer to undue influence as a wrong and to the stronger
96
Austin took this line: Austin, above n 15 at 484–91.
97
‘The Concept of a Civil Wrong’ in D. Owen (ed), Philosophical Foundations of Tort Law (corrected paperback
edition) (1997) 29.
98
Boardman v Phipps [1962] 2 AC 46 (HL).
party as a wrongdoer.99 This is presumably because in some cases of undue

influence the stronger party does behave badly and in nearly all cases of relational
undue influence it can be plausibly proposed that the stronger party ought to
have taken measures—that is, was under a duty to take measures—to see that
the weaker party was properly advised. But, to put the matter at its lowest, it is
certainly not necessary to say that undue influence is a wrong in order to explain
its operation. It operates because it is one way to show that the decision of the
transferor of wealth was impaired. In this it aligns with other unjust factors in
the law of unjust enrichment, as for instance with mistake and duress, and even
with failure of consideration.100 A failure of consideration shows that a condition
attached to the transferor’s intention to transfer has fallen away, while mistake,
duress, and undue influence show that the intention was imperfectly formed
from the beginning.
Not very dissimilar are cases of non-disclosure. It is common enough to say
that a person who seeks insurance must make disclosure of material facts. In
other words, there is a duty to disclose. And the contract is voidable if that duty
is broken. But does the right to avoid the contract flow from the breach of duty
as such? In other words, do the facts trigger that consequence in their quality
as a wrong? Once again, it is certainly not necessary to conclude that they do.
The right to avoid the contract can be said to rest on the fact that it was entered
by mistake. The general rule in bargaining contexts is that relief for mistake
cannot be given where it would upset the legitimate hopes and fears inherent in
the bargain. Differently from most spontaneous mistakes, relief can be given for
induced mistakes (misrepresentations) because the legitimate hopes of advantage
are so defined as not to extend to advantages obtained by misrepresentation.
Similarly, in some contracts, insurance among them, the dangers risked by one
party are defined to include only the uncertainties which remain when the other
has put his cards on the table. Thus, after non-disclosure, the insurer takes his
relief for mistake because the mistake (a) caused him to enter the contract and
(b) lies outside the legitimate hopes and fears inherent in the bargain.101
Rather more tantalizing is a case such as Louth v Diprose.102 A lawyer gave all
the money he had to buy a house for the woman he loved. Later the scales fell
99
This is recurrent in Barclays Bank plc v O’Brien [1994] 1 AC 280 (HL) and of the many cases which have
followed it.
100
Detailed discussion in P. Birks and N.-Y. Chin, ‘On the Nature of Undue Influence’ in J. Beatson and D.
Friedmann (eds), Good Faith and Fault in Contract (1995) 57.
101
That this not-wrong analysis is correct is evidenced, though not conclusively, by the fact that the question
whether non-disclosure gives rise to the commonest of responses to civil wrongs was answered negatively: Banque
Keyser Ullmann SA v Skandia (UK) Insurance Co. Ltd [1990] 1 QB 665 (CA); in the House of Lords this case,
under the name Banque Financière de la Cité SA v Westgate Insurance Co. Ltd [1991] 2 AC 249 (HL), proceeded
on other grounds but Lord Templeman indicated agreement with the Court of Appeal. It has to be remembered
that it is of course not impossible for a wrong, qua wrong, to give rise to responses usually associated with other
causative events. The High Court of Australia has held that non-disclosure of interest by a fiduciary does just that
in Maguire v Makaronis (1997) 188 CLR 448, 467, 494. This shows, if it is right, that it is not quite safe to say
of, for example, Gluckstein v Barnes [1900] AC 240, that the plaintiff’s option for an account of profits was
triggered by the fiduciary’s non-disclosure qua wrong, while its option for rescission and restitution was triggered
by the non-disclosure qua unjust factor in unjust enrichment at its expense.
102
Louth v Diprose (1992) 175 CLR 621 (HCA).
from his eyes. He obtained restitution. It seems that if it had been regarded
simply from the point of view of the impairment of his intention he would not
have recovered. We need not pursue that here. The reason may be that love-
sickness short of mental illness—this plaintiff came close to the line—is res
humana, not exceptional but just part of the human condition. In the same way
a craving for a camera cannot be said to have impaired the decision to shoplift.
But here the woman had played upon the man’s weakness in order to obtain
this gift. The facts were so found. It was a case of unconscientious receipt. Is
that a wrong? Again, it is not necessary to conclude that it is. It can be represented
as a breach of duty: she ought not to have done what she did. But it is not
essential to characterize her conduct in that way. It is not essential to say that
she committed a wrong and for that reason had to return the gift. It is enough
to say that he was in a vulnerable state and she knew it and that she was at fault
in accepting the gift in those circumstances. It was an unconscientious receipt.
The facts which trigger a right to restitution of an unjust enrichment are often
much weaker than those that will justify making a defendant worse off than
before the story began. A wrong will justify doing that but a not-wrong usually
will not unless and to the extent that the policy behind the liability specifically
requires it. A tax of 101% is not unimaginable. It would be imposed in pursuit
of a very specific policy, as for instance to discourage people from working more
than a given number of hours a day. This brings us to the reason for drawing
the line between wrongs and not-wrongs.
E. The Importance of the Line

When it comes to the law’s response to the facts, there is a crucial difference
between a wrong and a not-wrong. The label ‘wrong’ operates as a licence to
the law to mistreat the wrongdoer. The entitlements which the law can accord
to the victim of the wrong are, so to say, at large, at least until the range has
been narrowed by authority, statutory or otherwise. Re integra, those entitlements
can be chosen subject only to the constraints imposed by extrinsic considerations,
utility, humanity, proportionality, and so on. In this one respect the discretionary
remedialists are right: the word ‘wrong’ makes for a wide choice of response.
They would keep that choice open and in the court’s hand. The position in
English law is that the choice is closed down by authority and, where authority
does leave choices to be made, they are made by the plaintiff, not by the court.103
By contrast, not-wrongs leave very little room for choice, because they offer no
general licence to mistreat the defendant. A claimant who puts in issue an unjust
enrichment, such as a mistaken payment, makes no case for, say, making the
defendant make good his consequential loss. His facts are weak, they justify
nothing but getting that much value back. There are some choices to be made,
but only within a very narrow compass. A taxable event is the same. It justifies
the demand for the tax, nothing more. Salvage is fractionally more open—how
103
Hence the election illustrated above, text above from n 26 to n 29.
best to respond to successful salvage—but again nothing is put in issue which

might justify, say, imposing a liability to compensate the successful salvor for
consequential loss, in the form of some missed opportunity. Again, manifestations
of consent, such as contracts, conveyances, and wills, justify demands for no
more than that which was granted.
To reach a claim for consequential loss, or to justify inflicting other kinds of
unpleasantness on the other, the plaintiff must be able to reconceptualize the
matter as a complaint of a wrong and show that the law makes that wrong
actionable as such. For instance, there could intelligibly be a wrong of knowingly
withholding restitution of mistaken payments.104 If there were, it would be
coherent, if severe, to make the wrongdoer make good the payer’s consequential
loss or even, say, repay double that which he received. We would be back in the
area of choices to be made. The construction of a wrong of failure to repay
would open the menu of possible responses. Discretionary remedialists would
want the menu left open, so that a selection could be made from case to case.
English law prefers to make the choice once and for all, ascribing to the victim
of the wrong the right to one measure of response or giving him an election
between a plurality.
We have been here before. The rise of trespass on the case is very largely the
story of plaintiffs switching from not-wrong to wrong. In this story it was in
many cases only the procedural advantages of trespass on the case, for instance,
its immunity from wager of law, that plaintiffs wanted. The most famous example
is the victory of case for assumpsit over the first-generation action of debt. The
obligation to repay a loan of money or the price of goods sold arises from a
contract. The debt (the obligation to pay) arises from a not-wrong (the contract).
But these are facts in which an alternative construction lies readily to hand. An
angry creditor can equally say that he is complaining of the wrong of breach of
contract. In the 16th century, before Slade’s case,105 the Court of Common Pleas
insisted on keeping these two analyses separate. This was part of its defence of
the organization of the common law as expressed in the Register of Writs. If a
plaintiff wanted to found on the wrong, and thus to bring trespass on the case
instead of the old action of debt, he must declare on facts which the old action
could not reach, as for instance consequential loss.106
The not-wrong—the contract of loan or sale—could not reach consequential
loss, the wrong could. In the end the Common Pleas had to surrender its
position. Slade’s case, when it came, was taken to be authority to the contrary:
you could bring trespass on the case instead of debt. Though the not-wrong
could not reach consequential loss, the wrong did not have to. This struggle
104
Essentially what Austin thought ought to be done: text to n 81, n 82 and n 96.
105
(1602) 4 Co Rep 91a, but now, from manuscript reports: J. H. Baker, ‘New Light on Slade’s Case, Part I’
[1971] CLJ 51.
106
J. H. Baker, ‘New Light on Slade’s Case, Part II’ [1971] CLJ 213, 219–20. See especially footnote 35: ‘il
doit aver monstre ascun extraordinary endamagement sicome pur non deliverance el wheate ses children fueront famished
(he ought to have shown some extraordinary damage, as for instance that by reason of the non-delivery of wheat
his children were starved)’ (Walmsley J in Frisland’s case 1596).
between actions underlines the difference between not-wrongs and wrongs. The
ultimate triumph of trespass on the case was entirely due to its collateral
procedural advantages. Its victory was not a genuine victory for a regime based
on nothing but wrongs and does not show that the differences between wrongs
and not-wrongs are a matter of indifference. Apart from anything else, it is not
always possible to construct a plausible wrong as an alternative to a not-wrong.
So great were the collateral advantages that sometimes, in the story which we
have just dipped into, the wrong to which the plaintiff switched was entirely
fictitious.
Loose use of ‘wrong’ and ‘remedy’ will wipe these important differences out.
Very weak facts will make an enrichment unjust and justify restitution. Call them
a wrong and they will seem to justify shifting a loss on to the defendant, or
otherwise mistreating him. By this kind of accident we have already come
very near to turning undue influence into a civil wrong, giving damages for
consequential loss.107 Some instances might indeed be turned into a wrong, but
it must not be done by accident. The wheel turns with subtle malignity. Once
begin to treat undue influence as though it were indeed a wrong, capable of
shifting a loss to a defendant or making him suffer in other ways, and you will
start trimming off instances which then seem to be, in Austin’s words, monstrous
anomalies. So, first the appellation ‘wrong’ will cause a mere ‘unjust factor’ to
trigger consequences which it cannot justify, and then those consequences will
filter back into the wrong to make it more emphatically wrong-like.108 Suppose
the ‘wrong’ of undue influence were to threaten a Mother Superior with liability
for the lost earnings of a nun who later loses her vocation and returns to the
secular world. The undue influence of Allcard v Skinner109 would almost certainly
have to be redefined and shorn of its reliance on presumptions. The wrong
would have to be made to justify its consequences.
This brings us back to discretionary remedialism. Within the law relating to
civil wrongs properly so-called, there is a relatively narrow, though very important,
difference between the discretionary remedialists and the rest. They think that
the court should make the choice of appropriate response to facts, not the law,
and not the plaintiff. The discretionary remedialists think that that choice should
be kept open and be made by judges from case to case, instance-specifically.
But they go further. They think that there is no point in working out a taxonomy
of causative events because all causative events are the same. They are all wrongs
giving rise to liability to sanctions or ‘remedies’.
That is a serious analytical error. It will gravely impair the law’s mission to
treat like cases alike. Outside the law relating to wrongs properly so-called, there
is barely any choice to be made and hence no room for roaming around searching
107
Mahoney v Purnell [1996] 3 All ER 61 (May J), which is, however, capable of being understood as pecuniary
restitution of unjust enrichment. That is, it does not necessarily escape the boundaries of not-wrong analysis: P.
Birks, ‘Unjust Factors and Wrongs’ [1997] Restitution LR 72. The issue whether the facts amounted to a wrong
was not raised with the clarity of the Skandia case, above n 101.
108
Text to n 82 above.
109
(1887) 36 Ch D 145 (CA).
for criteria of appropriateness. All that the roving discretion can do, at huge
expense of time and money, is slowly to rediscover the categories of not-wrongs
with their narrow, limited remedial potential. Causative events are not all wrongs.
They do not all form a single category, engendering an ill-defined ‘liability’. A
primary purpose of the taxonomy of causative events was all along to make it
evident that the different categories differ precisely in their rational potential for
triggering legal responses. In the meantime, while that lesson is relearning, the
experiment in discretionary remedialism, in any jurisdiction in which it gets
seriously under way, promises a period of chaos while the remedialists do their
best to dissolve the law in pools of misdirected good intentions.
3. Conclusion
From a wrong there trail remedial strings. What should they be called? Are they
rights or remedies? They are usually both, a truism encapsulated in Austin’s
‘remedial rights’. The words ‘right’ and ‘remedy’ are functionally synonymous
over a wide range of their meaning. Nevertheless, in the first part I advanced a
number of reasons for preferring the language of rights. If we call the law’s
response to wrongs ‘remedies’, we choose the less stable of two terms. The
classification of rights by events then begins to break up, and we create a toehold
for the fifth meaning of ‘remedy’ and the view of the law here called ‘discretionary
remedialism’.
The second part tried to show, in the language of rights, that the courts realize
rights not only from wrongs but also from not-wrongs and, more exactly, from
three categories of not-wrongs. The lines between these categories must be
clearly and carefully drawn. Even if it were true, which it is not, that the courts
had a strong discretion to choose how to treat wrongdoers, they could never
have the same roving remedial discretion in relation to not-wrongs. The language
of remedies seems to encourage the error of supposing the law to respond only
to a single genus of causative event. Wrongs need remedies and remedies need
wrongs. But it is exceedingly dangerous to scuff the lines between different
causative events.
Blackstone and Austin thought that the courts dealt only with one genus of
causative event, namely, wrongs. Discretionary remedialism, armed with its menu
of remedies, thrives on the same undifferentiated overview. It uses ‘remedy’ in
sense five: orders that a court may make if it thinks fit.110 Discounting the first
and most general sense of the word as irrelevant to analytical discussion, that is
the only relevant sense in which it can be contrasted with ‘right’. Discretionary
remedialism is a view of the law in which the people subject to the law have no
defined rights. Its premise appears to be that the law must be liberated from a
Procrustean bed. But there is no Procrustean bed. The reverse is true. Flexibility
110
Text from n 49 above.
is superabundant. The jurist’s task is to strive to limit that ultimately insuperable
flexibility by revealing and insisting upon such structure as can be discovered.
The most important instrument in that endeavour is scrupulous taxonomy,
directed to the identification of the different events from which different rights
arise. In barest outline the best we currently have is that rights arise from
manifestations of consent or independently of consent, and, when independently
of consent, from wrongs, from unjust enrichments, or from miscellaneous other
events. Contrary to Austin’s view, such a proposition makes no error in including
in one series both primary and secondary rights, because, again contrary to his
view, it is not true that courts of justice are concerned only with wrongs and the
secondary rights which arise from them.
No department of human knowledge ever advanced without attention to
taxonomy. A legal system which insists on working in a taxonomic vacuum,
neither accepting nor seeking to improve such a proposition as has just been set
out, will not be able to treat like cases alike and will make many decisions which,
on reflection, will be rationally indefensible. It will tumble from the highest
branches of ethics to the lowest levels of gut reaction. Perceptions matter. The
aspiration to rationality must be no less evident than the aspiration to impartiality.
In a system which is perceived to have abandoned the aspiration to rationality
the legitimacy of the law’s authority will be rapidly eroded.
In the course of this lecture I have had to disagree with much better jurists
than myself and sometimes to accuse them of grave errors, even Austin, and
even the great Blackstone himself, as well as others better placed to answer back.
I am much more likely to be wrong than they. But this is how a university works,
by hurling challenges against the wall of existing knowledge and occasionally,
probably not today, breaking through. University life has many blessings, never
to be taken for granted. Of them, one of the greatest, perhaps the greatest, is
that in a university disagreement, even serious disagreement about things which
really matter, is never taken to be incompatible with admiration and affection.
Many things are changing, but not that.

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Oxford Journal of Legal Studies, Vol. 20, No. 1 (2000), pp.

Rights, Wrongs, and Remedies

The Premise and the Aim

language in Pothier.20 That is no doubt correct for the language of remedial

1. Remedies for Wrongs or Rights from Wrongs?

A. Two Prominent Examples

Then, a little later, Lord Atkin said:

And Lord Romer, to similar effect, said:

B. The Many Meanings of Remedy

It seems probable that the habit of referring to the constructive trust as a

(ii) ‘Remedy’ as a right born of a wrong

(iii) ‘Remedy’ as a right born of a grievance or injustice

(iv) ‘Remedy’ as a right born of the order or judgment of a court

The essential point is that Blackstone’s ‘remedy’—the court’s order—cannot be

(v) ‘Remedy’ as a right born of a court’s order issued on a discretionary basis

C. The ‘Remedial’ Constructive Trust

(1) Every constructive trust relieves a problem troubling a plaintiff and is

D. Where ‘Right’ and ‘Remedy’ Overlap, ‘Right’ Should Prevail

(i) Duplicated and overlapping terminology

(ii) Multiple causes of action

(iii) Sabotage of the classification of rights by causative events

In his excellent book on remedies—which is indeed excellent for all that,

(iv) Rightlessness and remedies in the fifth sense

2. Wrongs and Not-Wrongs

A. Blackstone and Austin

In Blackstone’s terminology, ‘delicts, injuries, or offences’ are ‘wrongs’. So,

C. Barker’s Two-tiered Not-wrongs

D. The Line Between Wrongs and Not-wrongs

party as a wrongdoer.99 This is presumably because in some cases of undue

E. The Importance of the Line

best to respond to successful salvage—but again nothing is put in issue which

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