Private Law Remedies:
Foundations, Scope and Structure
Discussion with Professor Stephen Smith
DATE: Tuesday 8th August
VENUE: N.3.01 - Law Building.
This presentation will discuss the existence of and provide the intellectual foundations for, a body of law that has been largely unacknowledged, ignored, or misunderstood in the western legal tradition. Focusing primarily on the common law tradition and, within that tradition, on rulings dealing with private law disputes and the three main questions: what, if anything, is distinctive about remedies; what is the relationship between remedial law and substantive law; and what, if any, general principles underlie remedy law? The relationship between remedial and substantive law is poorly understood, impoverishing our understanding of both. In particular, the common assumption that remedies confirm or rubber-stamp substantive rights is mistaken.
Remedial law contains general principles; indeed, nearly the entirety of remedial law (including the rules governing both ‘legal’ and ‘equitable’ remedies) is underpinned by general principles. Taken together, these answers provide the foundation for an understanding of remedies that takes the concept of a remedy seriously, that asks directly about the relationship between remedies and substantive rights, and that explains remedial law in terms of general principles, not historical categories.
Stephen Smith is James McGill Professor at the Faculty of Law, McGill University, where he teaches primarily in the fields of private law (common and civil law) and legal theory. A former clerk to the then Chief Justice of the Supreme Court of Canada, Brian Dickson. Professor Smith is a graduate of Queen’s University (BA), the University of Toronto (LLM), and the University of Oxford (DCL). Professor Smith was a Fellow in Law at St. Anne’s College, Oxford from 1991-98 and has been a visiting professor at the Universities of Texas, Tel Aviv, Aix-Marseille, Singapore, and Queensland. His research is mainly in the areas of private law and private law theory. He is the author of Contract Theory (2004, OUP) and co-author of Atiyah’s Introduction to the Law of Contract, 6th ed. (2005, OUP). Professor Smith was the recipient of a Killam Fellowship for 2009-2011; he is currently writing a book on private law remedies.