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Civil Wrongs and Justice in Private Law$
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Paul B. Miller and John Oberdiek

Print publication date: 2020

Print ISBN-13: 9780190865269

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190865269.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 June 2021

The Significance of a Civil Wrong

The Significance of a Civil Wrong

(p.157) 8 The Significance of a Civil Wrong
Civil Wrongs and Justice in Private Law

Stephen A. Smith

Oxford University Press

This chapter claims that the commission of a civil wrong generally holds no significance for the substantive rights and duties of the parties to the wrong, and that it holds but minor significance in the law of remedies. This chapter’s claims are based on an analysis of the relationship between the nature of particular civil wrongs and the content of associated remedies. It is true that wrongs are causally significant to remedies, in that proof of a wrong is frequently a condition requisite to the award of a remedy. But this does not imply that remedies are responsive to wrongs in the more robust and important sense of being addressed to the wrong as such. This chapter explains that many remedies do little more than insist on respect for an underlying right, in which case the wrong is just an occasion for an order for performance of a substantive duty. Remedies are robustly responsive to wrongs only where the wrong itself supplies reasons for “creative” court-ordered remedies, these reasons being reflected in the content of the remedies ordered.

Keywords:   civil wrongs, remedies, private law remedies, substantive rights and duties, court-ordered remedies

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