From Norms to Facts: The Realization of Rights in Common and Civil Private Law

McGill Law Journal ~ Revue de droit de McGill

FROM NORMS TO FACTS: THE REALIZATION OF
RIGHTS IN COMMON AND CIVIL PRIVATE LAW

Helge Dedek*

Every legal system that ties judicial deci-
sion making to a body of preconceived norms
has to face the tension between the normative
formulation of the ideal and its approximation
in social reality. In the parlance of the common
law, it is, more concretely, the remedy that
bridges the gap between the ideal and the real,
or, rather, between norms and facts. In the
common law worldparticularly in the United
Kingdom and the Commonwealtha lively dis-
course has developed around the question of
how rights relate to remedies. To the civilian le-
gal scholarused to thinking within a frame-
work that strictly categorizes terms like sub-
stance and procedure, subjective right, action,
and executionthe concept of remedy remains
a mystery. The lack of remedy in the vocabu-
lary of the civil law is more than just a matter
of attaching different
labels to functional
equivalents, it is the expression of a different
way of thinking about law. Only if a legal sys-
tem is capable of satisfactorily transposing the
abstract discourse of the law into social reality
does the legal machinery fulfill its purpose: due
to the pivotal importance of this translational
process, the way it is cast in legal concepts thus
allows for an insight into the deep structure of a
legal culture, and, convergence notwithstand-
ing, the remaining epistemological differences
between the legal traditions of the West. A
mixed jurisdiction must reflect upon these dif-
ferences in order to understand its own condi-
tion and to define its future course.

Tout systme juridique qui lie la prise de
dcision judiciaire un ensemble de normes
prconues doit faire face la tension qui existe
entre la formulation normative dun idal et son
approximation dans la ralit sociale. Dans la
terminologie de la common law, cest le remde,
plus concrtement, qui palie lcart entre lidal
et le rel, ou plutt, entre les normes et les faits.
Dans les juridictions de common law, plus
particulirement au Royaume-Uni et au sein du
Commonwealth, un vif dbat est apparu sur les
liens que les droits entretiennent avec les
remdes. Pour le juriste civiliste, habitu
raisonner dans un cadre qui catgorise
strictement des termes tels que substance et
procdure, droit subjectif, action et excution, le
concept de remde demeure un mystre.
Labsence de remdes dans le vocabulaire du
droit civil nest pas une simple question de
nomenclature divergente pour dcrire des
quivalents fonctionnels. Il sagit de lexpression
dune
le droit.
Lappareil juridique natteindra ses objectifs que
sil est capable de transposer le discours
abstrait du droit en ralit sociale. tant donn
limportance primordiale de ce processus de
transposition, son expression dans des concepts
juridiques rvle la structure profonde dune
diffrences
culture
pistmologiques qui subsistent entre
les
traditions juridiques occidentales, malgr leur
convergence. Une juridiction mixte doit rflchir
sur ces diffrences afin de comprendre son
propre tat et de dfinir son parcours futur.

faon diffrente daborder

juridique

et

les

* Assistant Professor, Faculty of Law, McGill University, Montreal. I am grateful to Jef-
frey Berryman, H Patrick Glenn, Nicole Duval Hesler, Rosalie Jukier, Daniel Jutras,
Lionel D Smith, and Stephen A Smith for helpful comments and to Andrei Molchyn-
sky and Nicholas Melling for research and editing assistance.

Citation: (2010) 56:1 McGill LJ 77 ~ Rfrence : (2010) 56 : 1 RD McGill 77

Helge Dedek 2010

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78 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

I.

II.

III.

The Question

Remedies and Rights in the Common Law
A. Traditional Pragmatism and the Remedial Approach
B. Remedies and Rights: The Theoretical Debate

1. Rights in Private Law Discourse
2. The Quest for a Rights-Remedies Taxonomy

The Civil Law: Rights and their Procedural Realization
A. Rights and Actions, not Rights and Remedies
1. Theoretical Structure: Procedure as the Servant

of Substantive Law

2. Terminology: The Absence of Remedy
B. Origins

1. A Tradition of Theorization
2. From the Roman Law of Actions to the Rise of the

Subjective Right

3. The Role of the Judge

IV.

Some Comparative Remarks
A. Finding Law and Making Rights: Equity, Good

Faith, and Discretionary Awards

B. Specific Performance

Conclusion

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 79

I. The Question1

Law, writes Professor Paul Gewirtz, mediates between the ideal
and the real.2 In the parlance of the common law it is, more concretely,
the remedy that bridges the gap between the ideal and the real, or, rather,
between norms and facts. Remedies realize rights; as the etymology of the
term reveals, remedies are supposed to provide the tangible cure, to heal
what the law conceptualizes as an injurythe violation of an abstract
right. Remedies translate the abstract and lofty discourse of the law into
the life-world of the disputants.
Every legal system that somehow ties judicial decision-making to a
body of pre-formulated norms that, in other words, has evolved beyond a
model of spontaneous administration of substantive justice, has to face
the tension between the normative formulation of the ideal and its ap-
proximation in social reality.3 This problem cuts across the dividing lines
between legal cultures and traditions. Such commonality, however, does
not preordain the way a legal tradition captures this tension in theoretical
terms and doctrinal concepts. In this context, I have been asked to answer
a concrete and concise question: Do the common law and civilian tradi-
tions differ in their approach to the relationship between rights and
remedies, and if so, how?

This is not a simple inquiry, and it is even less simple, it seems to me,
to find an answer that will do it justice. If a comparative lawyer were
asked to boil down the complexities to a single catchphrase the answer
would probably look something like this: in the common law the remedy is
said to precede the right, ubi remedium, ibi ius; whereas in the civil law

1 An earlier version of this paper was presented at the 2009 annual conference of the Ca-
nadian Institute for the Administration of Justice (Taking Remedies Seriously). I
would like to thank Robert J Sharpe J for his kind invitation. The participants of the
first panel (Private Law and the Remedial Imagination: The Relationship between
Rights and Remedies), which was chaired by Robert J Sharpe, were called upon to re-
spond to specific questions. My co-panellist Stephen A Smith addressed the question
Are rights and remedies properly understood as discrete and distinct elements or are
they inextricably bound? Why does the nature of the right-remedy relationship matter?
I had been asked to introduce a comparative angle and to address the question Do the
common law and civilian traditions differ in their approach to the relationship between
rights and remedies, and if so, how?

2 Paul Gewirtz, Remedies and Resistance (1983) 92:4 Yale LJ 585 at 587.
3 Describing a kind of judicial decision-making that does not follow a rational grid of pre-
formulated rules and principles, Max Weber famously popularized the expression
Kadi-justice: Max Weber, Economy and Society: An Outline of Interpretive Sociology,
ed by Guenther Roth & Claus Wittich (Berkeley: University of California Press, 1978)
vol 2, 976 [emphasis in original] (using the expression, as has been pointed out by
scholars of Islamic law, in a proverbial rather than an historically accurate way).

80 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

the right is said to precede the remedy, ubi ius, ibi remedium.4 Despite
the apparent triteness of this summary, I maintain that there is not only
truth to this aphorism, but that it stands as a synecdoche for a fundamen-
tal epistemological difference between the common law and the civil law
traditionsa diagnosis that begs the further question: how does a mixed
jurisdiction such as Quebec position itself in relation to this dichotomy?

The different answers given to the question whether rights come be-
fore the remedies5 (or vice versa) reflect a difference in how common law-
yers and civilians imagine, conceptualize, and think about law. Despite
phenomena of functional convergence, cultural differences that burden
the communication between lawyers on both sides of the common law
civil law divide remain.6 Notably, the civilian tradition approaches law not
as a historical sequence of court-ordered sanctions affecting the life of the
disputants, but as an abstract normative system to be treated in a scien-
tific manner.
However, before even asking whether there is something such as an
approach to the rights-remedies relationship that is typical of the common
or civil law tradition, we first have to find out whether the respective tra-
ditions are even equally familiar with the notions of rights and reme-
dies. On the one hand, it is well known that comparatists have main-
tained that the common law has traditionally entertained a notion of right
in a private law context that deviates from the (in)famous Continental
subjective rightdroit subjectif or subjektives Recht.7 On the other hand,
we witness a certain helplessness that overcomes the true civilian when
grappling with the common law concept of remedy in all its historical

4 See e.g. William Tetley, Mixed Jurisdictions: Common Law v Civil Law (Codified and
Uncodified) (2000) 60:3 La L Rev 677 at 707; ric Descheemaker, Faut-il codifier le
droit priv europen des contrats? (2002) 47:4 McGill LJ 791 at 808; Denis Tallon,
Linexcution du contrat: pour une autre prsentation [1994] RTD civ (2d) 223 at 224;
Ren David & John EC Brierley, Major Legal Systems in the World Today: An Introduc-
tion to the Comparative Study of Law, 3d ed (London: Stevens & Sons, 1985) 316-17;
Geoffrey Samuel, Law of Obligations and Legal Remedies, 2d ed (London: Cavendish,
2001) at 90 [Samuel, Legal Remedies]; JA Jolowicz, On Civil Procedure (Cambridge:
Cambridge University Press, 2000) at 83.

5 The question cannot be viewed as a matter of historical or even logical precedence; the
question of which precedes the other, approached in such an ontological manner, re-
sembles the question of which comes first: the chicken or the egg. See Rafal Zakrzewski,
Remedies Reclassified (Oxford: Oxford University Press, 2005) at 57.

6 See e.g. Pierre Legrand, European Legal Systems Are Not Converging (1996) 45:1

ICLQ 52 at 60ff.

7 Geoffrey Samuel, Le Droit Subjectif and English Law (1987) 46:2 Cambridge LJ 264
[Samuel, English Law]; FH Lawson, Das subjektive Recht in the English Law of
Torts in Many Laws: Selected Essays, vol 1 (Amsterdam: North-Holland, 1977) 176
[Lawson, Das subjektive Recht].

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 81

and theoretical implications; used to thinking within a framework that
strictly categorizes terms like substance and procedure, subjective right,
and action and execution, the concept of remedies remains a mystery to
the civilian. The French civilian Denis Tallon once remarked at the outset
of a report on remedies for breach of contract that the French reporter is
confronted with a terminological difficulty which, as always, reflects a
more fundamental problem: what is a remedy?8 The French recours,
which is translated in the English language version of the Civil Code of
Qubec as remedy9 or the German Rechtsbehelf, seem prima vista, to de-
scribe legal institutions of which one can avail oneselfrather than a
remedy in the sense of a cure that it is administered by a court.10 Such
fundamental differencesterminological, conceptual, epistemological
foreshadow the problems a Quebec judge or practitioner of private law
faces when operating within a framework of substantive law that is civil-
ian and a law of procedure that is strongly influenced by the common law.

II. Remedies and Rights in the Common Law
Our first task is to briefly outline the approach of the common law
tradition to the rights-remedies relationship. We have to differentiate be-
tween an empirical, factual description of how the common law tradition
has dealt with this problem in its history, and what legal theorists and
philosophers have argued ought to be the proper answer to the eternal
question of how rights relate to remedies. Both approaches, however, are
made even more complicated by the fact that it is far from clear what a
remedy actually is.

A. Traditional Pragmatism and the Remedial Approach

Common lawyers tendproudlyto portray themselves as gravitat-
ing towards a pragmatist approach. Unlike the civilian, who is more aca-
demically inclined and weighed down by doctrinal theorization, the com-
mon lawyer has traditionally cared about what actually matters; he em-
phasizes outcome, actual results rather than idle theory. In the context of
a civil action, what matters is, arguably, the remedy. In his 1955 article

8 Denis Tallon, Remedies: French Report in Donald Harris & Denis Tallon, eds, Con-
tract Law Today: Anglo-French Comparisons (Oxford: Oxford University Press, 1989)
263 at 263 [Tallon, Remedies] [emphasis added].

9 See e.g. arts 484, 593, 1397, 1477, 1491, 1529, 1532, 1534, 1535, 1560, 1624, 1625, 1669,
1692, 1955, 2017, 2055, 2181, 2204 CCQ But see arts 1743, 1863 CCQ. The Civil Code
of Qubec uses remedy in the sense of a remedial right rather than in the sense of
court order.

10 For further details, see Part III.1(b), below.

82 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

The Law of Remedies as a Social Institution Professor Charles Wright
wrote, Civil actions are not brought to vindicate nice theories as to negli-
gence or nuisance or consideration.11 The tone of this quote, as well as
the title of Wrights essay, gives us a sense of the appeal the topic of
remedies exerts on a jurisprudence that would rather look at outcomes
and consequences than preoccupy itself with doctrinal minutiae. Reme-
dies, in the sense of that which matters, are the topic of choice of the real-
ist and the pragmatist.12 This explains the proliferation of courses, case-
books, and textbooks, as well as scholarly works on remedies, particularly
in the United States in the second half of the twentieth century.

The rest of the common law world, however, could not resist the at-
traction either; in 1983, Professor Waddams pointed out the growing in-
terest in the legal subject of remedies, expressed in the production of
books and articles and the offering of courses.13 And is it not a hallmark of
the English common law tradition that it typically … fastens, not upon
principles but upon remedies?14 Prima facie, this observation seems to
hold true as well regarding the relationship, as traditionally understood,
between remedies and rights. Despite the plethora of theoretical ques-
tions that spring to mind when reflecting even perfunctorily on the rela-
tionship between remedies and rightsafter what we have learned so
farwe can surmise that common lawyers engage in such theoretical dis-
cussions with rather curbed enthusiasm.15 P.S. Atiyah writes, English
law has for long prided itself in being strong on remedies, even if it is less
interested in rights.16
The reason for this tendency is usually said to be found in the history

and structure of the common law. The common law developed within a
procedural framework of causes of actionsa structure, interestingly

11 Charles Alan Wright, (1955) 18:4 U Det LJ 376 at 377.
12 FH Lawson, Remedies of English Law, 2d ed (London: Buttersworth, 1980) at 1.
13 SM Waddams, Remedies as a Legal Subject (1983) 3:1 Oxford J Legal Stud 113 at

113.

14 Davy v Spelthorne BC, [1984] 1 AC 262 at 276, [1983] 3 WLR 742 (HL), Wilberforce LJ.
15 See also Albert Kiralfy, Law and Right in English Legal History (1985) 6:1 J Legal
Hist 49. Kiralfy assesses that [t]he attitude of the English lawyer towards his law as
an institution independent of the machinery of its creation is ambiguous (ibid at 49).

16 PS Atiyah, Pragmatism and Theory in English Law (London: Stevens & Sons, 1987) at
21. See also, on the historical usage of right in English common law history; Kiralfy,
supra note 15 at 57-60; Lawson notes that English lawyers, though using the term
right, usually do not attach to it some form of metaphysical significance (Das subjek-
tive Recht, supra note 7 at 177).

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 83

enough, phenotypically very close to classical Roman law.17 Roman law,
however, observed a different kind of taxonomical logic, which in turn
provided the syntax for a Continental legal science that eventually devel-
oped the strict separation between substance and procedure.18 In the Eng-
lish common law, it was not until the abolition of the Common Law Pro-
cedure Act of 1852 that the question of a division between substance and
procedure became an issue of practical relevance.19 Although the theoreti-
cal separation between procedure and substance exists in common law
thought, when it comes to remedies, as Geoffrey Samuel observed, this
distinction can break down as a result of the legacy of the forms of action
which themselves defined substantive ideas mainly through formal rules
of procedure.20 Scholarly attempts at theoretical elucidation notwith-
standing, in light of this legacy, traditional discourse (a) was more likely
to develop a rhetoric that focused on the actual relief, the remedy to cure
the plaintiffs grievance, granted by a judge; and (b) had no need to engage
in a clear distinction between substance and procedure when it came to
remedies.21 This is seenby someas the very character of common law
remedies: The law of remedies falls somewhere between substance and
procedure, distinct from both but overlapping with both, as Douglas Lay-
cock put it.22

B. Remedies and Rights: The Theoretical Debate

This narrative may appear as an accurate description of the tradi-
tional way the common law approached the relationship between right
and remedy (which displayed, as Atiyah has reminded us, a certain lack of
interest in the definition of substantive rights); yet, many authors would
disagree that this is an accurate description of how remedies ought to be

17 Although not accurate on all accounts, the locus classicus for this observation is Fritz
Pringsheim, The Inner Relationship Between English and Roman Law (1935) 5:3
Cambridge LJ 347.

18 For a more detailed reflection on this topic, see Part II, below.
19 Common Law Procedure Act, 1852 (UK), 15 & 16 Vic, c 76. Of course, [t]he final blow
was struck by the Judicature Act of 1873: FW Maitland, The Forms of Actions at
Common Law: A Course of Lectures, ed by AH Chaytor & WJ Whittaker (Cambridge:
Cambridge University Press, 1936) at 8. See also Geoffrey Samuel, Public and Private
Law: A Private Lawyers Response (1983) 46:5 Mod L Rev 558, 562ff; Jolowicz, supra
note 4 at 83, n 7.

20 Samuel, Legal Remedies, supra note 4 at 40.
21 Lawson, Das subjektive Recht, supra note 7 at 178.
22 Douglas Laycock, Modern American Remedies: Cases and Materials, 3d ed (New York:
Aspen, 2002) at 1. See generally Doug Rendleman, RemediesThe Law School
Course (2001) 39:3 Brandeis LJ 535 at 535; David M Walker, The Law of Civil Reme-
dies in Scotland (Edinburgh: W Green & Son, 1974) at v.

84 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

perceived. We need to remind ourselves that, as comparatists, confronted
with the question of how the common law tradition approaches the
rights-remedies relationship, we need to distinguish carefully between an
empirical and a normative answer to this question, between what seems
to be an adequate empirical description of common law discourse and the
postulates of legal theorists as to how remediesand their relationships
to rightsought to be understood.

1. Rights in Private Law Discourse

First of all, we have to be mindful not to fall prey to the stereotype
that the common law has not been or is not interested in rights. The
common law is obviously familiar with a private law discourse of rights.23
Particularly in recent times, the rights-side of the rights-remedies dichot-
omy has attracted more and more attention that has elicited not only aca-
demic but also important judicial statements. A prominent example comes
to mind: Lord Diplocks famous distinction between primary and secon-
dary rights and obligations arising from a contract, his subtle sub-
distinctions as to the different species of primary rights, and the implica-
tions for the administration of remedies.24

The fact that we encounter the distinction between primary rights
and sanctioning rights (secondary rights arising from civil delicts) in
the work of John Austin, underlines that English jurisprudence does in-
deed have a longstanding tradition of focusing on the role of rights in pri-
vate law and their relationship to remedies.25 The term right might not
come with the same semantic implications as droit subjectif (insofar as it
does not emphasize or imply an antagonism of subjective and objective);
right might also not range as high in the metaphysical pantheon of con-
cepts as droit subjectif does in the civil law tradition. However, although it
is popular to point out that there is no such thing as the civilian droit sub-
jectif or subjektives Recht in the common law, we must be careful not to
deny the significance of rights in the common law discourse of private

23 For a historical perspective, see Kiralfy, supra note 15 at 57-60.
24 See e.g. Lep Air Services Ltd v Rolloswin Investments Ltd, [1973] AC 331 at 350, [1972]
2 WLR 1175 (HL); Hardwick Game Farm v Suffolk Agricultural and Poultry Producers
Association Ltd [1966] 1 WLR 287, 1 All ER 309 (CA); C Czarnikow Ltd v Koufos (The
Heron II), [1966] 2 QB 695, 2 WLR 1397 (CA). See also Brice Dickson, The Contribu-
tion of Lord Diplock to the General Law of Contract (1989) 9:4 Oxford J Legal Stud 441
at 448.

25 C.f. John Austin, Lectures on Jurisprudence: Or the Philosophy of Positive Law, 5th ed

by Robert Campbell (London: John Murray, 1885) vol 2 at 760ff.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 85

law.26 Since the days of Hale and Blackstone,27 English jurists map out
private law by squaring two dichotomies: rights and wrongs28 on the one
hand and rights and remedies on the other.29
With the recent rise of remedies as a popular topic in academia, legal
theorists in the Commonwealth have shown a renewed interest in the
rights-remedies relationship: traditionally not quite so smitten with the
pragmatist stance fairly common among legal scholars in the United
States, they have reacted to the popularity of remedies as a legal subject
by aiming at theoretical explanations of how remedies relate to rights.30
The works of Peter Birks, Robert Stevens, Lionel Smith, Stephen Smith,
and Ernest Weinrib (to name just a few) stand witness to this academic
interest in a rights-based theory of remedies.31 This, of course, fits into the

26 Samuel states: [n]o doubt for the Continental lawyer the subjective right has always
had at bottom the politico-legal flavour which is only now becoming more overt in Eng-
lish case-law (English Law, supra note 7 at 266). I would rather venture to say that
the Continental private lawyer perceives the subjective right as part of the technical
arsenal of private law doctrine, without much more flavour (or haut-got) than right
to the common lawyer.

27 See Sir Matthew Hale, The History of the Common Law of England, And An Analysis of
the Civil Part of the Law, 6th ed by Charles Runnington (London: Butterworth, 1820);
William Blackstone, Commentaries on the Laws of England: A Facsimile of the First
Edition of 1765-1763 (Chicago: University of Chicago Press, 1975) vol 1 [Blackstone,
Commentaries, vol 1]. For a particular reading of the rights-wrongs and rights-remedies
distinction, c.f. Alan Watson, The Structure of Blackstones Commentaries (1988) 97:5
Yale LJ 795 (explaining the influence of Hales work, and of continental Roman law
scholarship).

28 See Blackstone, Commentaries, vol 1, supra note 27 at 117ff. Right, in this context, is
at first not used in the sense of an individual entitlement, but in the sense of a state of
what is right. A similar ambivalence can be observed in the usage of ius in Roman law:
see Donahue, infra note 83.

29 Blackstone actually states that whenever a right is invaded, there is a remedy: William
Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of
1765-1769 (Chicago: University of Chicago Press, 1979) vol 3 at 23ff [Blackstone, Com-
mentaries, vol 3]. Note, however, that Blackstone did not yet think in the terms of Aus-
tins secondary rightsBlackstones concept of rights remains, as Birks called it, su-
perstructural (Peter Birks, Rights, Wrongs, and Remedies (2000) 20:1 Oxford J Legal
Stud 1 at 5 [Birks, Rights, Wrongs]).

30 C.f. Neil Duxbury, English Jurisprudence Between Austin and Hart (2005) 91:1 Va L

Rev 1 at 55.

31 See e.g. Birks, Rights, Wrongs, supra note 29; Robert Stevens, Torts and Rights (Ox-
ford: Oxford University Press, 2007); Lionel Smith, Restitution: The Heart of Correc-
tive Justice (2001) 79:7 Tex L Rev 2115; Stephen A Smith, The Law of Damages:
Rules for Citizens or Rules for Courts? in Dajkhongir Saidov & Ralph Cunnington, eds,
Contract Damages: Domestic and International Perspectives (Oxford: Hart, 2008) 33
[Smith, Damages]; Stephen A Smith, The Rights of Private Law in Andrew Robert-
son & Tang Hang Wu, eds, The Goals of Private Law (Oxford: Hart, 2009) 113 [Smith,

86 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

bigger picture of a private law discourse that, contrary to American utili-
tarianism, is taking rights seriously and is trying to ground the positive
law in a theory of rights.32 If we take account of the amount of scholarly
writing produced, it seems fair to say that, in this day and age, there ex-
ists a more vivid academic discourse on the topic of rightsand their rela-
tionship to remediesin common law jurisdictions than in the civil law
world. Furthermore, the theories offered by scholars such as Weinrib and
Smith aim at explaining the true character of private law through a
rights-based approach; if we take these scholars by their word, if we do
take the rights-based theories seriously, we cannot simply stick to the cli-
ch that the common law is concerned with remedies rather than rights.

2. The Quest for a Rights-Remedies Taxonomy

Instead of giving a detailed account of the sophisticated theories on
the rights-remedies relationship, I shall briefly depictin a rather simple
mannerthe intellectual landscape of those theories as a continuum that
spans from an extreme remedial approach at one end to an extreme
rights-based approach at the other. For the purpose of our inquiry, this
exercise is important insofar as it will show that the theoretical stand-
point determines the respective definitions of remedies and rightswhich
is, as we will see, a valuable insight for our comparative project.

Let us start with the remedies end of the continuum. It is, at the same
time, the pragmatist pole. Here the remedy defines the right; the right
has no ontological existence as a valid deontic command. A right is
simply the word used to describe a factual position that is protected by in-
stitutional safeguards, such as court orders: Right, pragmatically, thus
means remedy.33 In its simplest and purest form, this view has of course
been expounded by O.W. Holmes, who argued against an understanding
of the law as a system of pre-existing rights and duties as deontic enti-
ties: The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.34 The remaining importance of

Rights]; Ernest J Weinrib, Two Conceptions of Remedies in Charles EF Rickett, ed,
Justifying Private Law Remedies (Oxford: Hart, 2008) 3.

32 See e.g. Ernest J Weinrib, The Idea of Private Law (Cambridge: Harvard University
Press, 1995); Stephen A Smith, Contract Theory (Oxford: Oxford University Press,
2004) [Smith, Contract Theory]; Smith, Rights, supra note 31, passim.

33 David Stevens, Restitution, Property, and the Cause of Action in Unjust Enrichment:

Getting by with Fewer Things (1989) 39:3 UTLJ 258 at 285 [emphasis in original].

34 OW Holmes, The Path of the Law (1897) 10:8 Harvard L Rev 457 at 462. Holmes is of-
ten presented as a radical, a maverick; however, along the same lines, see Arthur L
Corbin, Legal Analysis and Terminology (1919) 29:2 Yale LJ 163 at 164:

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 87

such legal consequentialism lies obviously in breaking the path for effi-
ciency-oriented theories of law, which represent some of the most influen-
tial strains of contemporary legal thought, particularly in the United
States.35 Returning to our rights-remedies discourse, this approach, in the
terminology suggested by Grant Hammond, could be called monist. In
such a remedial monism right is mostly eclipsed and consumed by rem-
edy.36 The remedy is what matters; saying that there was a right is just
another way of saying that a remedy has actually been granted.
At the other end of the continuum, however, the concept of right
reigns supreme. Since the remedial monist is unconcerned with rights as
a category, there is simply no need for a sharp definition of remedy. Ac-
knowledging the importance of rights, however, leads to the necessity to
define both concepts in their relationship to each other. We could think of
a rights monism that dispenses with remedy as a meaningful category al-
together: when rights alone matter, remedy can be seen as a non-
technical term to describe every response of the legal system to some sort
of grievance in need of a cure, be it substantive or procedural in nature.

Peter Birks has argued against such use of the terminology: wherever
the law grants a right, it should be called by its proper namealso in
matters terminological, right should prevail over remedy.37 In search of a
remaining technical meaning of remedy, thus acknowledging a theoretical
dichotomy or dualism38 of right and remedy, it is only natural to define
remedy narrowly in a way that leaves matters of substance to the concept
of right and relegates remedy to its factual implementation. Smith and
Zakrzewski, accordingly, define remedy as court orders.39 The rights-
based approach seems to gravitate towards a procedural understanding of

When we state that some particular legal relation exists we are impliedly as-
serting the existence of certain facts, and we are expressing our present men-
tal concept of the societal consequences that will normally follow in the future.
A statement that a legal relation exists between A and B is a prediction as to
what society, acting through its courts or executive agents, will do or not do for
one and against the other.

35 See Richard A Posner, Law, Pragmatism, and Democracy (Cambridge, Mass: Harvard

University Press, 2003) at 76-79.

36 Grant Hammond, Rethinking Remedies: The Changing Conception of the Relationship
between Legal and Equitable Remedies in Jeffrey Berryman, ed, Remedies: Issues and
Perspectives (Scarborough, Ont: Carswell, 1991) 87 at 90.

37 Birks, Rights, Wrongs, supra note 29 at 19-22.
38 C.f. Hammond, supra note 36 at 90-91.
39 Zakrzewski, supra note 5 at 43. See also Stephen A Smith, Rights and Remedies: A
Complex Relationship in Robert J Sharpe & Kent Roach, eds, Taking Remedies Seri-
ously (Montreal: Canadian Institute for the Administration of Justice, 2010) 31 at 34;
Smith, Contract Theory, supra note 32 at 388.

88 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

remedy, and towards a substance-procedure divide. In its most extreme
formulation, remedies could be understood simply as rubber stamps on
the decision made by substantive law. The impetus of Peter Birkss work
seems, at times, to point in this direction.40
We shall not be concerned with the many other definitions that try to
reconcile the concepts of right and remedy; suffice it here to outline the
two most extreme theoretical positions.41 To have those roles inform our
remedial imagination helps us to set the stage for the second part of our
inquiry: the civilian way of approaching rights andif there is such a
thingremedies. Returning to our caveat about the normative and the
empirical assessment of the common law approach, we can sum up as fol-
lows. The relationship between rights and remedies remains a matter of
scholarly contention. We saw that in the ongoing theoretical debate a
remedies-based monism and a rights-based dualism can be depicted as
the two opposite poles of a continuum. It is not our task to answer the
normative question of which approach is, as a matter of legal theory, the
most consistent and convincing. Called upon as comparatists to give an
assessment of the common law approach, the model of the continuum of
theoretically possible approaches helps us to visualize what, empirically,
can be considered the position of traditional common law discourse. Even
if we concede that the common law had historically had more difficulties
than the civilian tradition in embracing the subjective right,42 it was still
rather comfortable with duties43 and therefore is not at all completely
agnostic regarding norms as pre-existing deontic entities. However, it is
fair to say that common law pragmatism and its traditional thinking in
terms of causes of actions has been biased towards the remedies-end of
the continuum. Thus Vice Chancellor Sir Nicolas Browne-Wilkinson (as
he then was) described the relationship between common law pragmatism
and the position of a remedial monism in 1986:

In the pragmatic way in which English law has developed, a mans
legal rights are in fact those which are protected by a cause of action.

40 See text accompanying note 122; Birks, Rights, Wrongs, supra note 29.
41 See e.g. Yehuda Adar & Gabriela Shalev, The Law of Remedies in a Mixed Jurisdic-
tion: The Israeli Experience (2008) 23 Tul Eur & Civ LF 111 (defining remedy as an
entitlement, i.e. a legal right, while, at the same time, [f]rom the standpoint of the
person entitled to the remedy (the aggrieved party), a remedy involves a practical bene-
fit or advantage, awarded him for the sake of alleviating the grievance at 114).

42 See e.g. Samuel, English Law, supra note 7, passim.
43 See Atiyah, supra note 16 at 18. See also Lionel Smith, Understanding Specific Per-
formance in Nili Cohen & Ewan McKendrick, eds, Comparative Remedies for Breach of
Contract (Oxford: Hart, 2005) 221. Smith points out that OW Holmesin the same ar-
ticle in which he denounces a deontic concept of rightspoke of a duty to perform a con-
tract in case of specific performance being an available remedy (ibid at 223-24).

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 89

It is not in accordance, as I understand it, with the principles of Eng-
lish law to analyse rights as being something separate from the
remedy given to the individual.44

This pragmatism is not the pragmatism so dear to American theorists, in
the sense of a philosophical denomination or a strain of legal theory.45 It is
a theoretically rather unreflective (and therefore probably the only truly
pragmatic) pragmatismthe kind displayed by judges confronted with
real cases, which leads to a kind of visceral remedial monism.
Another valuable insight is that the common law theorists who gravi-
tate towards the rights-end of the continuum are those who are inspired
by the civil law. This is particularly obvious in the case of Peter Birks
who, as a Romanist, has often expressed his affinity for the neatness of ci-
vilian taxonomic thinking.46 This is an insight that finally leads our path
to the civil law: it is indeed civilian taxonomy that hands us the key to
understanding the main differences between the common law and the
civil law approach to the rights-remedies relationship, which is, first of
all, characterized, as we have seen, by the absence of remedy as a mean-
ingful category in civilian private law discourse.47

III. The Civil Law: Rights and their Procedural Realization

A. Rights and Actions, not Rights and Remedies

1. Theoretical Structure: Procedure as the Servant of Substantive Law

Civilian private law discourse is traditionally centred upon the notion
of the subjective right. The implications for our inquiry could be tenta-
tively described as follows: all allocative decisions that private law is sup-
posed to makewhat belongs to whom and who owes what to whomcan
eventually be expressed through a discourse of rights (entitlements, obli-
gations, duties, and so forth).48 These decisions are perceived as decisions
of substantive law.

44 Kingdom of Spain v Christie, Manson & Woods Ltd, [1986] 1 WLR 1120 at 1129, 3 ALL

ER 28.

45 For a distinction between the two forms of pragmatism, see Posner, supra note 35 at ch

1 (PragmatismPhilosophical versus Everyday).

46 See e.g. Peter Birks, Definition and Division: A Meditation on Institutes 3.13 in Peter

Birks, ed, The Classification of Obligations (Oxford: Clarendon Press, 1997) 1.

47 See Tallon, Remedies, supra note 8.
48 For the German civil law, see the splendid summary rendered by Wolfgang Zllner,
Materielles Recht und Prozeecht (1990) 190 Archiv fr die Civilistische Praxis 471.

90 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

How to now bridge the gap between norms and facts? Because (a)
those who are on the negative side of (or who are subjected to) a subjective
rightthose under a duty or an obligationdo not always comply with
their duties deontic appeal of their own free accord; and because (b) ex-
cept for narrowly defined cases of self-help, the state holds the monopoly
on the use of force, the state has to provide an institutional system that
ensures the enforcement and execution of subjective rights. Whereas sub-
jective rights define the relations of private individuals and therefore
amount to substantive private law, the body of law governing the admini-
stration of enforcement and execution procedures is a matter of public
law.49 Substance and procedure are to be strictly kept apart; procedure is
relegated to the ancillary function of enforcing and executing substantive
rights:50 the action is the humble servante du droit subjectif substantiel.51
Except for certain cases, such as dissolving marriage through a consti-
tutive act, a judicial decision does not create a new legal situation,52 but
rather announces how the pre-existing legal relationship between the par-
ties has to be properly understood.53 Therefore, within the grid of the
strict taxonomic separation of substantive law and procedure, the dichot-
omy that matters from the perspective of someone intent on enforcing her
rights is not that of right and remedy, but that of right and action.
It goes without saying that this description is an oversimplification.

Furthermore, we must not forget that the common law tradition, as men-
tioned above, separates substance and procedure as well, and is even fa-
miliar with the imagery of servility; as Lord Collins M.R. famously re-
marked: the relation of the rules of practice to the work of justice is in-

For France, see Serge Guinchard, Frdrique Ferrand & Ccile Chainais, Procdure
Civile: Droit interne et droit communautaire, 29th ed (Paris: Dalloz, 2008) at paras 86ff.
49 See e.g. Ren Morel, Trait lmentaire de procdure civile, 2d ed (Paris: Recueil Sirey,
1949) at 6ff. For a more subtle distinction, however, see Loc Cadiet & Emmanuel Jeu-
land, Droit judiciaire priv, 5th ed (Paris: Litec, 2006) at para 11.

50 Grard Cornu & Jean Foyer, Procdure civile (Paris: Presses Universitaires de France,
1958) at 6. The role of procedure as a servant of substantive law is also underlined by
Cadiet & Jeuland, supra note 49 at paras 8ff; Henry Solus & Roger Perrot, Droit judi-
ciaire priv, t 1 (Paris: Sirey, 1961) at para 15.

51 Henri Motulsky, crits: tudes et notes de procdure civile (Paris: Dalloz, 1973) at 100

[emphasis added]. See also Cornu & Foyer, supra note 50 at 11.

52 And even in cases where a judicial decision does create a new legal situation, it does so

because substantive law ascribes this function to the judicial decision.

53 A theorist might want to engage in a discussion on the question of whether the nature
of the pre-existing right changes due to the approval of the court by means of novation,
etc. The court order does command special respect, different rules of prescription apply,
etc. For the English common law, see Birks, Rights, Wrong, supra note 29 at 15.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 91

tended to be that of handmaid rather than mistress.54 Yet, as we have al-
ready seen, when it comes to the relationship of rights and remedies, the
distinction is not easy to upholdthe separation of substance and proce-
dure tends to break down,55 as Geoffrey Samuel put it, when common
lawyers try to analyze what happens when a court administers a remedy.

Let us assume that, in contrast, the axiomatic starting point of the
civil law is indeed a paradigm of rubber stamping; the role of the court,
and of the law of procedure, is mainly to grant official verification to the
existence of subjective rights, if need be through the use of force exerted
by the state. Even if the rights of the disputants are far from easily dis-
cernable before proceedings are instigatedwhich is what usually brings
people to court in the first placethe court only finds that substantive,
pre-existing rights-duties relationships exist from the time of the occur-
rence of whatever causative event gave rise to the rights and duties in
question. The body of public law that governs bringing an action has noth-
ing to say as to the justification of the underlying substantive claim; the
substantive law, in turn, is purged from all procedural implications.

2. Terminology: The Absence of Remedy

If we try to locate this approach in our model56 it would occupy the
most extreme possible position on the rights-end of the continuum. It be-
comes obvious why the civilian is challenged to ascribe a technical mean-
ing to the notion of remedy; within the rights-actions framework there is
no room for remedy as a technical term that combines features of sub-
stance and procedure.

This explains the absence of an exact equivalent in French terminol-
ogy; Andr Tunc has suggested the use of the non-technical term remde
as a translation for remedy.57 German civil law parlance also lacks an
equivalent of remedyBehelf or Rechtsbehelf58 could be used as non-
technical terms that could describe both a substantial entitlement as well
as the possibility to have this right enforced in court. In that sense, reme-

54 Re Coles and Ravenshear, [1907] 1 KB 1 at 1, 4, [1907] 23 Times LR 32.
55 Samuel, Legal Remedies, supra note 4 at 40; Laycock, supra note 22.
56 See Part II.2(b), above.
57 Andr Tunc, Preface in Claude Lambrechts, ed and translator, Code de Commerce

Uniforme des tats-Unis (Paris: Armand Colin, 1971) at 17.

58 For example, Rechtsbehelf is used as the translation of remedy in the official German
language version of the CISG, see bereinkommen der Vereinten Nationen ber Vertge
ber den internationalen Warenkauf, Bundesgesetzblatt 1989 II, 588 at 599. However,
Rechtsbehelf is more commonly found in procedural terminology, signifying any means
of realizing a right within the framework of orderly procedure.

92 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

dium only has a place in civil law thinking in its broadest and most non-
distinct denotation: the idea of remedium as cure that refers to any re-
sponse of the legal system to a grievancea definition explicitly rejected
by Birks for common law usage.59 However, since the Continental civil law
does not think in the terms of the Blackstonian rights-wrongs-remedies
taxonomy (if a right is invaded, there is a wrong, which will be rectified by
granting a remedy), the realization of a right is not seen as remedying a
wronga cure that is being granted, administered by a court.60 Rechtsbe-
helf, for example, also differs from remedy insofar as it denotes something
of which one avails oneself: it is the means one uses to help oneself (sich
behelfen) in order to obtain relief, rather than the cure (or remedy) itself.

In recent years, French authors have suggested using a common law
inspired remedial language (remdes) when looking at the consequences of
the non-execution of a contract.61 The purpose was to break out of the
taxonomic mould of the Code civil, assume a more pragmatist perspective,
and ask what can be done for the creditor if the contract is not performed
properly.62 The remedial perspective and the remedial language used is an
indicator of a civilian attempt to think more like a consequentialist, and
more like a common lawyer. But beware of this apparent equivalence: de-
spite the more consequentialist perspective, remedy as used in this way is
merely a synonym of right or maybe remedial right, which lacks the pro-
cedural implications of remedy in common law parlance.

Thus, if we encounter the language of remedy in a civil law context, it
is not to be understood as an analogue of the common law term remedy,
particularly if it is supposed to signify a technically defined concept. If we
encounter remedial language, in many instances it indicates that common
law mentality has seeped into civilian thinking. One example is the re-
cently published Principles, Definitions and Model Rules of European Pri-
vate Law: Draft Common Frame of Reference, Interim Outline Edition.63

59 See Birks, Rights, Wrongs, supra note 29 at 19ff.
60 See Hale, supra note 27; Blackstone, Commentaries, vol 1, supra note 27.
61 Denis Tallon, Linexcution du contrat: pour une autre prsentation [1994] RTD civ

223; Sophie LeGac-Pech, Vers un droit des remdes (2007) 242 Petites Affiches 7.

62 See especially ibid.
63 Christian von Bar et al, eds, (Munich: Sellier, 2008). For a recent critical assessment,
see e.g. Horst Eidenmller et al, The Common Frame of Reference for European Pri-
vate Law: Policy Choices and Codification Problems (2008) 28:4 Oxford J Legal Stud
659. For the politics of European private law and contract law harmonization, c.f. EC,
Commission, A More Coherent European Contract Law: An Action Plan (Bruxelles,
2003). See also Hugh Beale, The Future of the Common Frame of Reference (2007) 3:3
ERCL 257; Gert Brggemeier et al, Social Justice in European Contract Law: a Mani-
festo (2004) 10:6 Eur LJ 653; Martijn W Hesselink, The Politics of a European Civil
Code (2004) 10:6 Eur LJ 675.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 93

(Remedies

in Book Three, Chapter Three

Much has been written about its adoption of a civilian style of codification
and a German sense of formalism.64 However, its use of the language of
remedies
for Non-
Performance),65 for example, can be traced back to earlier attempts to
bridge the gap between civilian and common law thinking. The most
prominent example of this ancestry is the United Nations Convention on
Contracts for the International Sale of Goods (CISG),66 which speaks of
remedies for breach of contract67 and thus openly refers to the common
law terminology and conceptualization of the non- or mal-performance of
a contract. The CISG has exerted influence on the drafting and interpre-
tation of the continental national codifications as well.68 Surely this kind
of cross-fertilization promotes convergence, since using the terminology
of a different legal tradition will open legal discourse to the ideas of the
other. For now, however, we can summarize that remedy, as a technical
term, does not fit well in the civilian dichotomy of substance and proce-
dure, of right and action. Given this clear-cut separation of substance and
procedure, the civil law has no room for an overlapping grey area that
could amount to the legal subject of remedies. The technocratic taxon-
omy of the civil law lacks the remedial imagination for such a fabulous
chimera.

B. Origins

How do we account for this difference? Without postulating a simple
relation of causality, we can link the position of the civil law tradition to
the idiosyncrasies of its historical development. Again, we can only at-
tempt to describe the tendency of the mainstream; in the civil law tradi-

64 See e.g. Antoni Vaquer, Farewell to Windscheid? Legal Concepts Present and Absent
from the Draft Common Frame of Reference (DCFR) (2009) 17:4 ERPL 487. See also
Pierre Legrand, Antivonbar (2006) 1:1 J Comp L 13.

65 Von Bar et al, supra note 63 at 157ff. Annex 1: Definitions does not render a definition
of remedy (ibid at 327ff). However, the definition of right mentions remedy: Right de-
pending on the context, may mean an entitlement to a particular remedy (as in a right
to have performance of a contractual obligation judicially ordered) (ibid at 341). How-
ever, at the same time, the right to avoid a contract (ibid)also explicitly named as
an example of a rightdue to fraud, coercion etc, is referred to as a remedy (Arts II-
7:215, 7:216 at 133). See also Vaquer, supra note 64 at 495.

66 11 April 1980, 1489 UNTS 3, Can TS 1992 No 2 [CISG]. On the idea that the language
of the CISG spans all legal families see Bruno Zeller, International Trade Law
Problems of Language and Concepts? (2003) 23:1 JL & Com 39 at 39.

67 CISG c II, s 3, arts 45ff ([r]emedies for breach of contract by the seller); ibid c III, s 3,

arts 61ff ([r]emedies for breach of contract by the buyer).

68 Peter Schlechtriem, Basic Structures and General Concepts of the CISG as Models for
a Harmonisation of the Law of Obligations (2005) 10 Juridica International 27 at 27-
36.

94 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

tion, with its prolific production of scholarly writing, there are many ex-
amples of views deviating from this mainstream, but I will be able to
mention only a few.

1. A Tradition of Theorization

Let us start with the most generaland possibly most banal
observation. It is common comparative lawtextbook fare that the devel-
opment of the civil law has, at least since the renaissance of Roman law in
the High Middle Ages, coincided with the rise of the university and has
been driven by learned law professors.69 The teacher-scholar is the real
protagonist of the civil law tradition, as John Merryman put it: [t]he
civil law is a law of the professors.70 Those civil law scholars were by no
means mere bloodless dwellers of the ivory tower, disconnected from prac-
tice: one of the effects of the scholars role as the protagonists of legal de-
velopment has always been their relative proximity to practice. As a mat-
ter of course, judges look at scholarly writing and accept it as authorita-
tive; from the Middle Ages onwards, even towering academic figures such
as Bartolus and Baldus regularly rendered their expert opinions in civil
suits.71 Nevertheless, it is easy to imagine that, because civilian discourse
was propelled from the perspective of the scholar and teacher, its ten-
dency has been far less outcome-oriented or pragmatic than the judge-
driven discourse of the common law. This learned discourse, which be-
came more and more infatuated with reason and the idea of law as nor-
mative system,72 tended to approach the rights-remedies conundrum from
the angle of rights rather than from the angle of practical outcomes, or
remedies.

69 See e.g. Stephan Kuttner, The Revival of Jurisprudence in Robert L Benson, Giles
Constable & Carol D Lanham, eds, Renaissance and Renewal in the Twelfth Century
(Cambridge, Mass: Harvard University Press, 1982) at 299ff.

70 John Henry Merryman & Rogelio Prez-Perdomo, The Civil Law Tradition: An Intro-
duction to the Legal Systems of Europe and Latin America, 3d ed (Stanford: Stanford
University Press, 2007) at 56. See also Konrad Zweigert & Hein Ktz, Introduction to
Comparative Law, 3d ed, translated by Tony Weir (Oxford: Oxford University Press,
1998); RC Van Caenegem, European Law in the Past and the Future: Unity and Diver-
sity over Two Millennia (Cambridge: Cambridge University Press, 2002) at 44-48 ([t]he
English Bench is Paramount as opposed to The Continental Professor is Paramount
at 44-45). But for tendencies of a principe de pragmatisme in French civil law, bring-
ing about a more important role of the judge as well, see William Barans & Marie-
Anne Frison-Roche, Le souci de leffectivit du droit (1996) D Chron 301.

71 For an introductory overview, see e.g. Peter Stein, Roman Law in European History

(Cambridge: Cambridge University Press, 1999) at 38ff [Stein, Roman Law].

72 See e.g. Roger Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition

(Cambridge, Mass: Harvard University Press 2005) at 17ff.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 95

2. From the Roman Law of Actions to the Rise of the Subjective Right

The trajectory of this development might nonetheless be somewhat

surprising given that the continental civil law developed within the
framework of Roman law. Roman lawclassical Roman law, that isis
said to be an actional law.73 Lacking a clear-cut distinction between sub-
stance and procedure, it does not distinguish between substantive right or
claim, on the one hand, and procedural implementation or realization, on
the other hand. Substantive entitlement was determined by the availabil-
ity of a procedural remedy and took the form of the respective actio.74
What mattered was the availability of a formulaindeed, ubi remedium,
ibi ius.75 As we have seen, this prevalence of procedure has long inspired
scholars to point out the parallels between classical Roman law and the
common lawgiven its roots in the system of writs; the similarity be-
tween writs and formulae seems simply too obvious to be ignored.76
Which path leads from such a way of thinking to the views of modern
civil law? Looking at the development of the civil law tradition, we ob-
serve that there are two intertwined processes that both contribute to the
modern primacy of substantive law: the growing conceptual separation of
substance and procedure in legal thought, and the development of the
concept of subjective right. It is a matter of contention whether the roots
of both processes can be traced back to classical Roman law. Despite its
actional character, we find texts that seem to imply that the Roman juris-
prudes had already devised some concept of substance taking precedence
over actional realization. The famous Celsus-fragment 44.7.51 in Justin-
ians Digest states that:

Nihil aliud est actio, quam ius quod sibi debeatur, iudicio perse-
quendi.
An action is nothing else but the right to recover what is owed to us
by means of a judicial proceeding [translated by author].

This is remarkable in two ways: Celsus refers to the actio as ius, as right,
and at the same time conceptualizes the judicial proceedings as something
to enforce a prior entitlement; he describes the latter not as right, but in
the passive voice as what is owed. Yet what did Celsus mean by ius? It is
tempting, from a modern perspective, to read the characteristics of our

73 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian

Tradition (Oxford: Oxford University Press, 1996) at 6.

74 See Horst Kaufmann, Zur Geschichte des aktionenrechtlichen Denkens (1964) 15 Ju-
ristenzeitung 482. See also Bernhard Windscheid, Die Actio des rmischen Civilrechts,
vom Standpunkte des heutigen Rechts (Dsseldorf: Julius Buddeus, 1856) at 3.

75 Zimmermann, supra note 73 at 6.
76 C.f. Pringsheim, supra note 17 at 358 (the analogy is surprising).

96 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

understanding of right into the Roman ius. This modern perspective is,
however, determined by a framework whose parameters have developed
over time;77 although the civilian still operates within the syntax of Ro-
man private entitlementsiura in rem et in personamright now comes
with a plethora of connotations that centuries of philosophy and theology,
natural law theory, and political science have amassed. The subjective
right has different implications in an era that has witnessed the rise of
the subject, the rise of the individual, and a new definition of the separa-
tion of the public and the private spheres.78
Michel Villey has accredited medieval nominalism, and especially the
thought of William of Ockham, with first having imbued the Roman con-
cept of ius with the idea of granting power to the individual.79 This thesis
has attracted ample criticism, particularly because of its postulate of a to-
tal, Copernican shift in meaning effected by Ockham and nominalist phi-
losophy. This is contentious because even in classical Roman private law
the term ius was deployed to denote some kind of individual entitlement,
and was not solely used in the objective sense of law.80

This is not the place to inquire into the minutiae of this debate. One
detail, however, merits closer examination. As in so many learned dis-
putes, the problem lies with the extreme formulation of the opposing posi-
tions. Of course, the rise of nominalism and individualism had to endow
the idea of an individual entitlement with a whole new gravity and dy-
namic.81 But that does not mean that, to earlier generations of jurists and

77 Brian Tierney, Villey, Ockham and the Origin of Individual Rights in John Witte, Jr
& Frank S Alexander, eds, The Weightier Matters of the Law, Essays on Law and Relig-
ion: A Tribute to Harold J Berman (Atlanta: Scholars Press, 1988) 1 at 4-5 ([a]s we are
so often told nowadays, all language is context-dependent. A legal term deployed in the
cultural context of ancient Rome cannot have the same range of meanings as the term
used nowadays (though the meanings may overlap) at 5 [footnotes omitted]).

78 For a brief overview of the academic career of the term ius, see generally John Finnis,
Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 206-10; Tierney,
supra note 77 at 21ff, et passim.

79 Michel Villey, La formation de la pense juridique moderne: Cours dhistoire de la
philosophie du droit, 4th ed (Paris: no publisher, 1975) at 225-62 [Villey, Pense
juridique moderne]; Michel Villey, Lide du droit subjectif et les systmes juridiques
romains (1946) 24 Revue historique de droit franais & tranger (4th) 201.

80 Knut Wolfgang Nrr, Zur Frage des subjektiven Rechts in der mittelalterlichen
Rechtswissenschaft in Dieter Medicus, ed, Festschrift fr Hermann Lange zum 70. Ge-
burtstag am 24. Januar 1992 (Stuttgart: Kohlhammer, 1992) 193 at 193-98; Tierney,
supra note 77 at 17-21.

81 See generally Aaron Gurevich, The Origins of European Individualism, translated by
Katharine Judelson (Oxford: Blackwell, 1995), at 89-99 et passim. On nominalist phi-
losophy in particular, see Villey, Pense juridique moderne, supra note 79 at 203ff. C.f.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 97

to the Romans themselves, ius did not comprise a subjective dimension as
well (in the sense of right). In short, to the Romans, ius did not exclusively
denote law in an objective sense. This subjective, individual dimension
may not have had the same metaphysical implications that some writers82
seem to now ascribe to the term subjective right, but it emphasized the
structure of private law as composed of relationships between individuals,
between subjects.83 This was the framework for later civilian discourse,
and surely was a main factor in the development of the concept of subjec-
tive right. Therefore, it is plausible to assume, as Geoffrey Samuel does,
that a lack of Roman law scholarship in England is one of the reasons why
the subjective right did not gain a foothold in English legal thought the
way it did in Continental Europe.84

The same holds true for the division of substance and procedure. Clas-
sical Roman law was actional in its approach. However, the Corpus Iuris
Civilis, in particular the Digest, the source for later civilian Roman law
scholarship, devotes relatively little space to technical rules of procedure.
Its discourseits way of reasoningrejoiced in proceeding from one hypo-
thetical to the next, pushing an argument more and more to its extreme,
while completely abstracting the discussed cases from real, decided cases,
individual facts, and actual procedural settings. This is one of the most
important differences between ancient Roman law and English common
law.85 Again, we do not know what kind of separation between substance

H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 3d ed
(Oxford: Oxford University Press, 2007) at 141.

82 See e.g. Samuel, English Law, supra note 7 at 272ff.
83 See Charles Donahue, Jr, Ius in the Subjective Sense in Roman Law: Reflections on
Villey and Tierney in Domenico Maffei, ed, A Ennio Cortese, (Rome: Cigno, 2001) t 1
506. Donahue concedes that the Roman jurists did not put much effort into theoretically
expounding a concept of subjective right, but underlines, by analyzing the usage of ius
throughout the Digest, that they must have attached some subjective directionality to
the notion of ius (ibid at 508ff). It is indeed rather obvious that since the very early
stages of Roman law, there was a concept of an individual entitlement to the vindica-
tion of protected interests. This finding, however, hardly suffices to refute Villeys ar-
gumentit is hard to imagine that Villey was not aware of this most simple individual-
istic aspect of Roman private law. It is not likely that he was simply laboring under a
linguistic fallacy (ibid at 529); the subjective right he claims to be an invention of the
Middle Ages is a different concept, and it seems to be a concept devised to describe the
novel understanding of the individual and its power in the Middle Ages.

84 Samuel, English Law, supra note 7 at 269.
85 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society,
and Its Relation to Modern Ideas (New York: Henry Holt & Co, 1864) at 36-38; WW
Buckland & Arnold D McNair, Roman Law & Common Law: A Comparison in Outline,
2d rev ed by FH Lawson (Cambridge: Cambridge University Press, 1965) at 9ff.
([r]oman common law was built up like ours by argument from case upon case, with

98 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

and procedure the Romans themselves experienced; we do not know
whether Celsuss statement that an action is only the means to pursue
what is owed to you already stood witness to the development of a theo-
retical dichotomy. However, these tendencies displayed in Roman law dis-
course surely facilitated later developments in the civil law.
Both the establishment of the substance-procedure divide and the rise
of the subjective right not only coincide, but are also intertwined. It is in-
teresting to note that one strain of the critique launched against Villeys
claims about Ockham points towards the separation of substance and pro-
cedure as a factor in the ascendency of the subjective right: in writings as
early as those of the Legists, the understanding of actio was starting to
change.86 Indeed, by the twelfth century, procedure had come to be seen
as an autonomous discipline, drawing simultaneously from the sources of
Roman and Canon law.87 At this stage, however, there was still little im-
petus for a theoretical explanation of how both fields related to each other.
It was in the sixteenth century that humanist Hugo Donellus defined the
civilian substance-procedure dichotomy. Donellus took Justinians defini-
tion of actio in Institutes 4.6.1 principium88 as his starting point, which
Justinian took, in turn, from Celsuss classical statement with which we
are already familiar; drawing on this tradition, Donellus described the
conceptual separation of a substantive ius, or right, and procedure as a
means to pursue this right.89 At this point, civilian legal science had, for
the first time, established right and action as two separate entities.90

It is not a coincidence that both the ascendency of the subjective right
and the growing rift between substance and procedure culminate in the
heyday of individualism and find their most radical formulation in nine-
teenth-century German Pandectist scholarship, which influenced legal

the difference that ours are decided cases and theirs are discussed cases, more open to
dispute at 9-10).

86 See Helmut Coing, Zur Geschichte des Begriffs subjektives Recht in Helmut Coing,
Frederick H Lawson & Kurt Grnfors, eds, Das subjektive Recht und der Rechtsschutz
der Persnlichkeit (Frankfurt: Alfred Metzner, 1959) at 7ff.

87 See e.g. Stein, Roman Law, supra note 71 at 57-59; Van Caenegem, supra note 70 at
48ff. On the romano-canonical procedure in action, see James A Brundage, The Me-
dieval Origins of the Legal Profession, Canonists, Civilians, and Courts (Chicago: Uni-
versity of Chicago Press, 2008) at 126ff.

88 “Actio autem nihil aliud est, quam ius persequendi iudicio quod sibi debetur.”
89 Peter Stein, Donellus and the Origins of the Modern Civil Law in JA Ankum et al,
eds, Mlanges Felix Wubbe: offerts par ses collgues et ses amis loccasion de soixante-
dixime anniversaire (Fribourg: University Press Fribourg, 1993) 439 at 446ff.

90 Zllner, supra note 48 at 472.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 99

thought in all Continental jurisdictions, including France.91 Individualist
philosophy and will theory, its legalistic expression, put the power of the
individual in the very centre of nineteenth-century private law ideology,
and figure prominently in the key works of scholars such as Savigny,
Puchta, and Windscheid.92 Private law demarcates spheres of individual
freedom; it assigns, as Savigny put it in 1840, the individual will a realm
where it can reign unperturbed by any other will [translated by author].93
This sphere of individual freedom is synonymous with the subjective
right: it is, again in Savignys words, the power of the individual person,
a realm where his will reigns supreme [translated by author].94

In the same period, Windscheid pushed the theoretical separation of
substance and procedure to its doctrinal peak: in his famous and influen-
tial book Die Actio des rmischen Civilrechts, vom Standpunkte des heuti-
gen Rechts, Windscheid expounds the actional structure of Roman law
and contrasts it with the modern perspective of the severance of sub-
stance and procedure. At the same time, he emphasizes the paramount
importance of the concept of the subjective right, repeating almost verba-
tim Savignys definition. From the perspective of nineteenth-century ius
commune, Windscheid writes:

the Right is the Prius, the action the subsequent, the Right is what
creates, the action what is created. The Right assigns each individ-
ual the sphere in which his will posits law [Gesetz] for all other indi-
viduals; if the individual is not respected in this sphere, he may
complain to the state, the guardian of Right [or law, or both; Recht
also means law in the objective sense], and the state will help to
obtain what is his. The legal order [Rechtsordnung] is an order of
Rights [Ordnung der Rechte][translated by author].95

91 See e.g. Franz Wieacker, A History of Private Law in Europe: With Particular Reference

to Germany, translated by Tony Weir (Oxford: Clarendon Press, 1995) at 350.

92 For will theory as an expression of nineteenth-century legal consciousness, see Dun-
can Kennedy, Two Globalizations of Law & Legal Thought: 1850-1968 (2003) 36:3 Suf-
folk UL Rev 631 at 637. Whether this legal consciousness is rooted in Kantian or Hege-
lian philosophy is still a matter of contention: see generally Helge Dedek, Negative
Haftung aus Vertrag (Tbingen: Mohr Siebeck, 2007) at 101. See also James Gordley,
The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991)
at 227.

93 Friedrich Carl von Savigny, System des heutigen rmischen Rechts (Berlin: Veit und
Comp, 1840) vol 1 at para 52 (dass dem individuellen Willen ein Gebiet angewiesen ist,
in welchem er unabhngig von jedem fremden Willen zu herrschen hat).

94 Ibid at para 59 (die der einzelnen Person zustehenden Macht, ein Gebiet, worin ihr

Wille herrscht).

95 Windscheid, supra note 74 at 3:

Fr das heutige Rechtsbewutsein ist das Recht das Prius, die Klage das
Sptere, das Recht das Erzeugende, die Klage das Erzeugte. Das Recht weist

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Displaying elaborate Romanist technique, Windscheid proves that the
judicial decision does not extinguish, replace, or even novate the initial
substantive claim: here he devises, to put it simply, a theory of rubber
stamping.96 He particularly rejects the older theory that, as suggested by
Savigny, actio itself is a right to protection by the courts, namely the
subjective right of an individual against another that, through the viola-
tion of this right, is transformed into a right to bring an action.97 After
Windscheid, the remaining overlap or intersection of substance and pro-
cedure was erased. Soon after, Oskar Blow consummated the develop-
ment of strict separation of substance and procedure by characterizing the
relationship between the citizen and the court as a particular procedural
relationship (Prozerechtsverhltnis), distinct from the subjective sub-
stantive right and exclusively a matter of public law.98

In France, codification had cemented the external separation of the
subject matters of substantive private law (Code civil, 1804) and civil pro-
cedure (Code de procdure, 1806). The Code de procdure, the younger
sister of the Code Napolon and not quite as innovative, exerted major
influence in Europe.99 Yet, internally, subjective right and action, as the
rights procedural implementation, were still seen as unified. The position
put forward by Demolombe is paradigmatic: starting from Celsuss fa-
mous definition (in its version propounded in the Institutes), he postulates
that the actional ius persequendi in iudicio quod nobis debetur is identi-
cal to the substantive right to quod nobis debetur. Here he falls back be-
hind Donelluss interpretation of the action as a procedural vehicle for the

jedem Individuum den Herrschaftskreis zu, in welchem sein Wille Gesetz fr
die anderen Individuen ist; wird das Individuum in diesem Herrschaftskreise
nicht anerkannt, so darf es sich darber bei dem Staate, dem Wchter des
Rechtes, beschweren, beklagen, und der Staat hilft ihm zu dem Seinigen. Die
Rechtsordnung ist die Ordnung der Rechte.

96 Ibid at 112ff.
97 Savigny, supra note 93 at paras 204-205; Windscheid, supra note 74 at 1; Savigny
speaks of metamorphosis (supra note 93 at para 204 [translated by author]). The use
of the biological term gives an insight into the conceptualization of the subjective right
as an entity that actually leads a life.

98 Oskar Blow, Die Lehre von den Proceeinreden und die Procevoraussetzungen
(Gieen: Roth, 1868) at 2: [S]o gehrt dieses Verhltni selbstverstndlicher Weise dem
ffentlichen Recht an: der Proce ist ein ffentlichrechtliches Verhltni. (This rela-
tionship, as a matter of course, falls in the category of public law: procedure is a public
law relationship [translated by author]). See also Horst Konzen, Rechtsverhltnisse
zwischen Prozeparteien (Berlin: Duncker & Humblot, 1974) at 105.

99 CH van Rhee, Introduction in CH van Rhee, ed, European Traditions in Civil Proce-
dure (Oxford: Intersentia, 2005) at 6. The CPC of 1806 incorporated major parts of the
Royal Ordinance on Civil Procedure of 1667.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 101

implementation of the substantive right. Very close to Savignys formula
of the action being the right in a state of defense, Demolombe writes:

Laction enfin, cest le droit lui-mme mis en mouvement; cest le
droit ltat daction, au lieu dtre ltat de repos; le droit ltat
de guerre, au lieu dtre ltat de paix.100

The strict separation of right and action had its breakthrough only in the
twentieth century, championed by the works of Vizioz and Motulsky, who
also adopted the language of labelling procedure as the servant of the
substantive law.101

This master-servant imagery does not only have doctrinal implica-
tions; it speaks, on a more foundational level, to the supremacy of private
law over public law, which is another hallmark of civilian thinking.102 Pro-
cedure is an institution of public law that merely implements the preced-
ing subjective private law rights. Legal philosopher Hans Kelsen pointed
out how nineteenth-century legal thought understood this precedence of
the subjective right over the procedural framework of its realization to be
logical as well as temporal; the subjective rights of private individuals
were thus endowed with metaphysical, ontological significance, above and
beyond the positive law. While the objectivepubliclaw(s), forms of
government, and procedures of enforcement are ever changing, the sub-
jective rights of the individual are pre-positive, almost natural, and there-
fore the very centre of the liberal, private lawbased legal philosophy of
the nineteenth century.103

It is important to be aware of the necessary simplification of discuss-
ing the civil law and its development, of the very broad brush strokes
with which we depicted a tradition of two thousand years with its mani-
fold local variations and permutations. In a legal culture of scholarly dis-
pute, there are of course deviating opinions on this topic; they pertain to
the precedence of rights over actions as well as the pre-eminence of the
subjective right. For example, in 1927, German legal philosopher Julius
Binder, from the angle of an extreme (and ideologically instrumental)
consequentialism, took a remedies-before-rights approach and attempted
to turn Windscheids famous formulation on its head, postulating that it is

100 C Demolombe, Cours de code civil (Bruxelles: Meline, Cans et Compagnie, 1854) t 5 at

para 338.

101 See Cadiet & Jeuland, supra note 49 at para 317; Motulsky, supra note 51.
102 Which, again, is not to say that the common law is not familiar with the image of the

servant: ibid at 101.

103 See Hans Kelsen, Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Prob-
lematik (Tbingen: JCB Mohr (Paul Siebeck), 1934) at 40-44 [Kelsen, Reine Rechtsleh-
re].

102 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

the action that is the prius, whereas the right is the posterius.104 Kelsen, a
scholar of completely different ideological denomination than Binder,
launched his well known attack against the subjective right in his Pure
Theory of Law, first published in 1934. In Kelsens extreme formulation of
positivism, there is no room for a pre-positive subjective entitlement.
Rights are merely a reflex of the objective order; they are the possibility
the state offers to individuals to apply for a remedy that protects, first and
foremost, the objective legal order.105 Be this as it may, however influen-
tial Kelsens ideas otherwise were, his theory of the subjective right never
held much sway among civilian private lawyers and never entered the
mainstream. The concept of subjective law was and is too ingrained in
Continental private law thinking; it is not a coincidence that Kelsen was,
by training, a scholar of public law.106

3. The Role of the Judge

Furthermore, the theoretical precedence of rights over actions ties in
with the civilian paradigm of the judge finding law rather than mak-
ing it. This paradigm provides that in order to find the law, norms,
which, in a private law context, are mostly derived from codal provisions,
are applied to the facts at hand. The norms are applied in what amounts
to a syllogistical operation; they, not the judge, decide the case.107 The
process of application by the judge ex post only reveals what has been
the true substantive relationship between the parties from the outset.

This, again, is an axiom rather than an actual belief held by judges
and other legal actors. Its intellectual origins were partly a strict under-
standing of the separation of powers, which included the revolutionary
thrust to limit the arbitrary power of the judiciary, and partly the fascina-

104 On Binders politics, see Bernd Rthers, Geschnte Geschichten, Geschonte Biographien:
Sozialisationskohorten in Wendeliteraturen, Ein Essay (Tbingen: Mohr Siebeck, 2001)
at 80ff. Binders pragmatism was supposed to refute the theory of adjudication that as-
sumed the judge was strictly bound by positive rules. In postulating that the judge was
actually making the law, Binder in fact justified, in theoretical terms, an unrestricted
reformulation of the law without democratic legitimation, according to the ascending
National Socialist ideology. On the intellectual link between German scholars who sup-
ported National Socialist ideology and American pragmatism, see Hans Joas, Pragma-
tism and Social Theory (Chicago: University of Chicago Press, 1993) at 107; Posner, su-
pra note 35 at 45; Julius Binder, Prozess und Recht: ein Beitrag zur Lehre vom Rechtss-
chutzanspruch (Leipzig: Deichert, 1927).

105 Kelsen, Reine Rechtslehre, supra note 103 at 49-52.
106 Kelsens habilitation thesis (1911) focused on Hauptprobleme der Staatsrechtslehre:
Hans Kelsen, Hauptprobleme der Staatsrechtslehre (Tbingen: JCB Mohr (Paul Sie-
beck), 1923).

107 Merryman & Prez-Perdomo, supra note 70 at 36.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 103

tion with the code as a rational and scientific system that could pre-
determine judicial decision making.108 We know of the early ill-conceived
attempts in France and Prussia to even go so far as to outlaw judicial in-
terpretation and to oblige judges to submit questions of interpretation to
the legislature.109 When the German Civil Code (Brgerliches Gesetzbuch)
came into force roughly a century after the French Code civil, the expecta-
tions as to how much work the codification could do for the judge had al-
ready been lowered considerably.110 However, even nowadays, the para-
digm persists that the judge applies law and does not make it. The style of
how French judges still draft their judgments bears witness to how this
paradigm is upheld: the brevity and peremptory phrasing follows the aes-
thetics of the judge as the mere mouth111 of the code. And even though
judges themselves might not truly believe in this stylized view of adjudi-
cation, the practice is upheld to keep up this very appearance.112 There-
fore, it is unsurprising that the methodological mainstream (leading trea-
tises, etc.,) still maintain that judge-made law is indeed not law at all:
case law, jurisprudence, even if it is constante (stndige Rechtsprechung)
is accepted as an authority in the sense that as a matter of fact, lower
courts are likely to adhere to the path chosen by higher courts, and practi-
tioners, to phrase their arguments accordingly.113 It is not, however, a
source of law, since it is only an interpretation of the positive norms.114

108 For an account of the revolutionary attempts to limit the power of the judiciary, see e.g.
John P Dawson, The Oracles of the Law (Ann Arbor: University of Michigan Law
School, 1968) at 375ff; Barry Nicholas, The French Law of Contract, 2d ed (Oxford:
Clarendon PressOxford University Press, 1992) at 10. For the roots of the code as a na-
tional and scientific system, see Berkowitz, supra note 72.

109 Dawson, supra note 108 at 376. Merryman & Prez-Perdomo, supra note 70 at 39.
110 Motive zu dem Entwurfe eines Brgerlichen Gesetzbuches fr das Deutsche Reich 1
(1888) 14-17, translated by and reprinted in James Gordley & Arthur Taylor von Me-
hren, An Introduction to the Comparative Study of Private Law: Readings, Cases, Mate-
rials (Cambridge: Cambridge University Press, 2006) 61.

111 Charles de Montesquieu, De lesprit des lois (London: no publisher, 1768) at 327. Daw-

son, supra note 108 at 407ff.

112 C.f. Mitchel de S-O-lE Lasser, Judicial (Self-) Portraits: Judicial Discourse in the
French Legal System (1994) 104:6 Yale LJ 1325 at 1334, 1343ff (contrast of the offi-
cial, and the unofficial French portrait of the civil judge).

113 It is very telling that probably the most widely-used and most frequently cited German
treatise on legal methodology uses the term judge-made law (Richterrecht) only in
quotation marks to emphasize that it is not a source of law: Karl Larenz & Claus-
Wilhelm Canaris, Methodenlehre der Rechtswissenschaft, 3d ed (Berlin: Springer, 1995)
at 252-53, 255, 258.

114 Ibid at 252-61; Dawson, supra note 108 at 400ff; Nicholas, supra note 108 at 12-19;
Jean Carbonnier, Droit civil, t 1 (Paris: Presses Universitaires de France, 2004) ([l]a
jurisprudence apparat ainsi comme une habitude des tribunauxat para 31). See also
The Honourable Madame Justice Claire LHeureux-Dub, Justice of the Supreme Court

104 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Besides the fact that this conceptualization of the role of the judge
links back to our earlier point that the judge in the civil law is simply not
as important a figure as in the common law tradition, it is easy to see how
this fact is, on a theoretical level, connected to the idea of sanctioning pre-
existing rights rather than creating rights through granting a remedy.115
If the judge, rather than making law, finds the law (in an objective
sense), she also finds the parties subjective rights.

IV. Some Comparative Remarks

A. Finding Law and Making Rights: Equity, Good Faith, and Discretion-

ary Awards

Although it is not widely reflected upon at a conscious level, this
model of the rights-action dichotomy might be too much part of civilian
private law folklore to be uprooted by a sidewind of lofty scholarship, such
as Kelsens fundamental attack launched from the position of a public law
scholar.116 However on a less foundational level, the civilian model has an
obvious open flank. Even if one believes in the precedence of rights over
actions (or remedies if you will), one has to wonder about the practicabil-
ity of the strict conceptual separation. Private law rights are not ends in
themselves; of what use, after all, are rights without remedies, substan-
tive entitlements without any means of realization, if people do not com-
ply with them? Does it not make sense to keep an eye on the possible en-
forcement of a right while discussing its substantive merits?
On a theoretical level, it is, of course, easier for a codified system to
create rights without a remedyrights that cannot be enforced in court. A
code or statute can simply posit that a right exists, even if no remedy is
being offered in case of its violation (lex imperfecta).117 From a strictly
positivist perspective, the possibility of enforcement is not a requirement
to acknowledge a norm as granting a legal right; it is sufficient that the
sovereign so commands. Conversely, in a system that is strictly based on

of Canada, By Reason of Authority or by Authority of Reason (1993) 27:1 UBCL Rev 1
at 9ff.

115 See Part II.2(a), above.
116 See Kelsen, Reine Rechtslehre, supra note 103.
117 Guinchard, Ferrand & Chainais name the concept obligation naturelle as an example
of a right without a corresponding action; however, the natural obligation is an obliga-
tion that cannot be enforced because there is no substantive right to demand perform-
ancewhich is why the obligation is just natural and not legal (supra note 48 at
para 87; art 1554 CCQ; art 656 BGB). Again, the Roman position was different insofar
as the procedural and the substantive were not separated, but see Zimmermann, supra
note 73 at 7ff.

REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 105

precedent, musings about rights that do not lead to remedial relief would
per se only be obiter dicta and would not, in a technical sense, create law.
However, even if there are no theoretical objections against creating
rights without remedieseven if civilians are said to be less pragmatic
than the common lawyerit is not because civilians have been completely
impervious to arguments of practicality. We recall Jherings statement
that a right that cannot be realized is nothing but words, nothing but a
legal phantom.118 If we want to understand how a right actually operates
and fulfills its purpose, it is inevitable that we assume a more holistic, or,
as we called it earlier, a more monist perspective, a perspective that in-
cludes procedural implementation and enforcement. What is first disen-
tangled and divided by a theory of strict separation between substance
and procedure has to be reunited in order to comprehend the legal proc-
ess; civilian authors have therefore criticized the dichotomy of substance
and procedure as impractical and artificial.119

The postulate of the primacy of substantive law over procedural laws,
which entails that substantive rights somehow exist before the judge can
find them and see to their proper enforcement, obviously marginalizes
what judges actually do and is counterintuitive to any insight of even an
undogmatic legal realism. The artificiality of the theoretical assumption
becomes particularly conspicuous in cases where the judicial decision in-
volves an obvious degree of latitude.

In the common law, working from the paradigm of a strong, law-
creating judge, it seems clear that there are situations in which the avail-
ability of a remedyof a court orderis partly or even entirely within the
discretion of the court. Equitable remedies are the most obvious example.
Historically, one of the reasons for the English laws preference for reme-
dies over rights has been the role of equity.120 Even in modern, rights-
based common law scholarship, we still find reverberations of the peculiar
distinction between law and equity: if the availability of a court order is in
the courts discretion, argues Stephen Smith, there can be no substantive
right against the court to obtain such an order; for example, to the specific
performance of a contract. If the court exercises its discretion by granting

118 R von Jhering, Lesprit du droit romain dans les diverses phases de son dveloppement, t

3, 3d ed, translated by O de Meulenaere (Paris: Marescq, 1887) at para 43.

119 Zllner, supra note 48 at 482ff; Guinchard, Ferrand & Chanais, supra note 48 at para
88; Marie-Anne Frison-Roche, La procdure de leffectivit des droits substantiels in
Florence Benot-Rohmer & Constance Grewe, eds, Procdure(s) et effectivit des droits
(Bruxelles: Nemesis, 2003) 1; Cornu & Foyer, supra note 50 at 12. For similar tenden-
cies in the common law, see Thomas O Main, Overcoming the Substance-Procedure Di-
chotomy (2009), online: ExpressO .

120 Atiyah, supra note 16 at 21ff.

106 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

the order, it just so happens that it replicates an initial right to have the
contract performed.121 Peter Birks held similar views regarding court or-
ders that are strongly discretionary: the discretion which is interposed
between the plaintiff and the order shows that he has no right to that
which he wants ordered.122
Birkss approach to the rights-remedies relationship seems, however,
more civilianan inclination that expresses itself in a tendency to per-
ceive what a court does as mostly confirming pre-existing rights. In order
to be able to categorize the maximum number of cases as cases where the
court thus confirms the plaintiffs rights, Birks distinguishes between
strong and weak discretion. Orders for specific performance and for in-
junctions and all others rooted in the Court of Chancery are, according to
Birks, weakly discretionary: because [t]he discretion has been settled
over centuries,123 it can be determined whether a person has a right to an
equitable remedy.
Again, the civilian approach is even more extreme. When it comes to
the adjudication of substantive rights, there is no such thing as discretion.
Institutionally, the civil law has simply not retained any equivalent to the
equitable jurisdiction of the Court of Chancery. Of course, comparatists
would bring up the concept of good faith (bona fides, bonne foi, Treu und
Glauben) as a functional equivalent; and to be sure, on a substantive level,
both equity and good faith serve to temper and correct respectively the
harsh results of the strict common and civil laws.124 Again, if we focus on
the historical roots, we might detect certain commonalities between the
Chancelors correction of the common law and the praetors exceptions to
the older ius civile.125 However, according to the civilian purist conceptu-
alization of the separation of powers, all judicial decisions as to the sub-
stantive law have to be made as a matter of right; there is no room for
discretion in the sense of a residue of a judicial prerogative to arbitrari-
ness. Thus, in procedural terms, good faith is not connected to a notion of
judicial discretion equal to the discretionary power that is associated with
equity in English law. The idea that the judge finds lawthat is, reveals
the rights existing between the partiesimplies that there can be no legal
vacuum to be filled by judicial discretion. This belief in norms and rights

121 Smith, Damages, supra note 31 at 44ff.
122 Birks, Rights, Wrongs, supra note 29 at 16.
123 Ibid.
124 Martin Josef Schermaier, Bona Fides in Roman Contract Law in Reinhard
Zimmermann & Simon Whittaker, eds, Good Faith in European Contract Law (Cam-
bridge: Cambridge University Press, 2000) 63.

125 Ibid at 65.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 107

as the foundation of all justice, this extreme legalistic view, is anathema
to the idea of equity as a judicial freedom, equity as famously character-
ized by Roscoe Pound as justice without law.126
Of course, in a decision that involves recourse to the principle of good
faith as a corrective of what seems to be an unfair outcome, the judge has,
as a matter of fact, a great degree of latitude. However, it is important to
understand that as a matter of law, the civilian paradigm still demands
that the judge merely find a duty of, or exceptio grounded in, good faith,
and that the party benefitting from such emanations of good faith does so
as a matter of right. Despite the fact that in matters involving good faith,
decisions may vary widely depending on the particular judges personal or
political convictions, German civil law scholarship insists, even nowadays,
that in theory there can only be one right decision: this is the decision
preordained by substantive law, which has to be found properly by the sit-
ting judge.127

The same theoretical axiom is applied in another context, which fig-
ures prominently in the works of Stephen Smithnamely, the award of
damages. Smith is particularly interested in oddities such as nominal and
punitive damages, and damages for non-pecuniary loss. Smith writes
that, in such cases, it is the court that creates a right to the awarded
damages. The law that governs the award of damages gives rise to a right
on the part of the plaintiff; such a right, however, is directed against the
court rather than against the defendant.128 In other words, at the time of
the occurrence of the event that gives rise to a right to compensationa
tort is committed, a contract breacheda right to a certain award of dam-
ages cannot yet come into existence since it has to be determined by the
court after the fact and it is almost unpredictable beforehand, even for le-
gal experts specializing in the field.129 For the civilian, this is once more
merely a factual complication. The fact that it is almost impossible to ac-
curately predict the sum eventually granted by the court has no impact on
the theoretical assumption that the right to the sum eventually awarded
came into existence in the very same moment the (secondary) right to
compensation was bornthe moment the tort was committed or the con-

126 Roscoe Pound, The Decadence of Equity (1905) 5:1 Colum L Rev 20 [emphasis added].
127 Barbara Stickelbrock, Inhalt und Grenzen richterlichen Ermessens im Zivilprozess (Co-

logne: Otto Schmidt, 2002) at 274.

128 Smith, Damages, supra note 31 at 55-60.
129 Ibid at 59:

This conclusion is consistent with another feature of pain and suffering
awards, it is usually not possible to determine in advance, even roughly, the
amount that a court will order by way of a pain and suffering award unless
one has detailed knowledge of the relevant law (and often not even then).

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tract was breached. Since this right existed from the very occurrence of
such a causative event, there is also no true discretionary element in-
volved in the judicial decision; again, possibly diverging assessments by
different individual judges or different instances are merely factual devia-
tions.130 Since the right came into existence as a right between obligor and
obligee, the right is a right against another citizen and not a right against
the court. Of course, even civilian procedural scholarship assumes that
when an action is brought, the plaintiff has some sort of a subjective right
against the court. However, it is not a substantive right to damages as as-
sumed by Smith, but a procedural right to be heard, to be granted fair
treatment, and to receive the proper application of legal rules.131 Civil law
scholarship has given up on the idea of an actional right against the court
that somehow mirrors the subjective substantive right of the plaintiff
since the days of Demolombe and Savigny. Smith is surprisingly close to
Savignys positionwhich is, by all means, a compliment, even for a
common lawyer.132

To the legal realist, of course, the idea of finding the law
particularly in cases in which the human factor in adjudication is obvi-
ousmight seem far-fetched, even ludicrous. Finding the right answer
in hard cases might be practically superhuman, but we might remind our-
selves that it is an assumption well known even among common lawyers
that this task is not unthinkable on a theoretical level.133 In regard to our
initial question, we can conclude that the law of damages, in the civil law,
defines a right to damages as a sanction of a violation of a primary right,
which is eventually confirmed by the court in a court order. Damages are

130 Stickelbrock, supra note 127 at 380.
131 Motulskys thesis supports the idea of laction as a subjective procedural right (supra
note 51). Contra Guinchard, Ferrand & Chainais, supra note 48 at para 9; Georges
Rouhette, Linfluence en France de la science allemande du procs civil et du code de
procdure civile allemand in Walther J Habscheid, ed, Das deutsche Zivilprozessrecht
und seine Ausstrahlung auf andere Rechtsordnungen (Bielefeld: Gieseking, 1991) 159;
Georges Wiederkehr, La notion daction en justice selon larticle 30 du nouveau Code
de procdure civile in Mlanges offerts Pierre Hbraud (Toulouse: Universit des
Sciences Sociales de Toulouse, 1981) 949. On the German Prozessrechtsverhltnis that
is purely conceptualized as a public law relationship, see Blow, supra note 98; Konzen
supra note 98.

132 C.f. Frederick Pollock, Principles of Contract: Being a Treatise on General Principles
Concerning the Validity of Agreements in the Law of England and America, 4th ed
(Philadelphia: Blackstone, 1888) (describing his experience when turning to the im-
mortal work of Savigny; assuredly the greatest production of this age in the field of ju-
risprudence, nor one easily to be matched in any other branch of learning, if literary
form as well as scientific genius is taken into account. Like one in a Platonic fable, I
passed out of a cave of shadows into clear daylight at 5-6).
133 Ronald Dworkin, Hard Cases (1974) 88:6 Harv L Rev 1057.

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 109

not a remedy in the sense that the court order itself is in any way a causa-
tive event that reshapes the plaintiffs initial right to damages or even
originally generates it; neither, therefore, is the plaintiffs right directed
against the court.134

B. Specific Performance

Perhaps the most prominent example of how remedial imaginations
diverge is the conceptualization of the specific performance of a contract.
Given the abundance of literature on the topic, I can limit myself to a few
comparative remarks that, again, will remind us that what we are used to
thinking of as the position of a legal system regarding any doctrinal
question is simply a snapshot of a certain state of development at a cer-
tain moment in time.

Specific performance is an instance of diverging reactions to the
breach or non-performance (or mal-performance) of a contract. In the
common law,135 a decree for specific performance is thought of as an equi-
table remedy; it is a judicial order whose availability is (at least to a cer-
tain degree) within the courts discretion and that presupposes that no
adequate remedy exists at law (i.e., damages are not sufficient to properly
compensate for the loss suffered).136 In the civil law, however, specific per-
formance is said to be the primary, the most readily available remedy.137
The civil law seeks to enforce the contractual promise, since it focuses on
the moral duty to keep a promise;138 whereas the more business-minded,
pragmatic common law, as goes the standard explanation, typically sees a
contract as a market transaction that the parties enter into for their fi-
nancial benefit, and as such, perceives monetary damages to be the most

134 Again, this reflects the opinion of modern scholarly mainstream. Interestingly enough,
at the end of the nineteenth century, scholars held that in cases of measuring damages
the judge constitutively shapes the right to damages: see Stickelbrock, supra note 127
at 379ff.

135 See e.g. The Honourable Mr Justice Robert J Sharpe, Injunctions and Specific Perform-
ance (Aurora, Ont: Canada Law Book, 2008) at para 7.10ff [Sharpe, Injunctions]; John
D McCamus, The Law of Contracts (Toronto: Irwin Law, 2005) at 906ff; Edwin Peel, ed,
Treitel on the Law of Contract, 12th ed (London: Sweet & Maxwell, 2007) at paras 21-
016ff.

136 Sharpe, Injunctions, supra note 135 at para 7.50ff.
137 For possible meanings of such a statement, c.f. Louis J Romero, Specific Performance
of Contracts in Comparative Law: Some Preliminary Observations (1986) 27:4 C de D
785 at 792ff.

138 Georges Ripert, La rgle morale dans les obligations civiles, 4th ed (Paris: Librairie

gnrale de droit et de jurisprudence, 1949) at para 22.

110 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

adequate way to compensate for breach.139 Indeed, it is not easy to explain
the secondary role of specific performance in common law from the per-
spective of a rights-based approach that acknowledges the duty to keep
ones word as the primary obligation arising from a contract.140
Much has been written about whether there is a tendency of conver-
gence between the common law and the civil law in their preferred reme-
dies, or whether the theoretical preference for specific performance in the
civil law actually translates into a preference that is measurable in em-
pirical terms.141 For us, however, it is more interesting to take a closer
look at the underlying doctrinal construction, for it is quite telling in re-
spect to how civilians and common lawyers think differently about the re-
lationship between rights and remedies. In the civil law, a court order for
specific performance does not create a new right or replicate an old one.
The court merely confirms what is thought of as the first and foremost
right flowing from a contract: the right to receive what has been promised.
Thus, it is the primary right itself that is being realized, and not a secon-
dary right, which is caused by a wrong. Enforcing a contract, to a civilian,
means the confirmation of the primary right to performance, which is
identified with the contract itself. It is important to note that this model
strictly separates the perspective of substantive law and the perspective
of procedure and execution. The fact that, in many instances, contractual
duties cannot be enforced due to their particular content does not dimin-

139 See e.g. Robert J Sharpe, Specific Relief for Contract Breach in Barry J Reiter & John
Swan, eds, Studies in Contract Law (Toronto: Butterworths, 1980) 123 at 139, citing E
Allan Farnsworth, Legal Remedies for Breach of Contract (1970) 70:7 Colum L Rev
1145:

The common laws remedial response to contract breach has been strongly in-
fluenced by the economic philosophy of free enterprise. In order to facilitate
and encourage commercial activity, the common law has tended to restrict
rather than enlarge the responsibility of the party in breach, and has shown a
marked solicitude for men who do not keep their promises. Upon analysis, it
is clear that this attitude stems not from a blind eye to dishonesty, but from a
desire to encourage the maximization of profit and commercial activity in an
open market economy ^×..

See also, Peter Linzer, On the Amorality of Contract Remedies: Efficiency, Equity, and
the Second Restatement (1981) 81:1 Colum L Rev 111.

140 See e.g. Stephen A Smith, Performance, Punishment and the Nature of Contractual

Obligations (1997) 60:3 Mod L Rev 360.

141 See generally Romero, supra note 137 at 794; Florence Bellivier & Ruth Sefton-Green,
Force obligatoire et excution en nature du contrat en droits franais et anglais:
bonnes et mauvaises surprises du comparatisme in Gilles Goubeaux et al, eds, tudes
offertes Jacques Ghestin: Le contrat au dbut du XXIe sicle (Paris: Librairie gnrale
de droit et de jurisprudence, 2001) 91; Henrik Lando & Caspar Rose, The Myth of
Specific Performance in Civil Law Countries, (21 November 2003) online: Social Science
Research Network .

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 111

ish the almost logical appeal of the primary right to performance being
the theoretical starting point of the enforcement of a contract. Yves-Marie
Laithier describes the position of the mainstream as follows:

Cessant dtre un moyen, lexcution force en nature est devenue
une fin. Faisant appel … larticle 1142 du Code civil, on prtend
quil est de lessence de lobligation contractuelle dtre excute en
nature, que cest la seule sanction capable de raliser tant le droit
subjectif du crancier que le droit objectif … [S]e librer en versant
des dommages-intrts en lieu et place de la prestation promise, cest
lautoriser modifier unilatralement lobjet de lobligation.142

This reminds us to be cautious when addressing specific performance in
the civil law as remedy. Although it is surely possible to use the term in
a very broad and non-technical (a comparatist might say functional) way,
we must keep in mind that the term does not have the same implications
for the civilian and the common lawyer. When we call civil law specific
performance a remedy, we should be aware that in the civil law it is not a
response to a wrong, that it is not a cure. We should be aware that for
the civilian, specific performance refers to the content of a substantive
primary right, not to the content of a court order. We should be aware
that a court order confirming this primary right is, first of all, simply a
statement that the plaintiff holds this right; it does not automatically en-
tail an injunction.143 In light of these differences, we might wonder
whether calling civilian specific performance a remedy does more harm
than good.
On a different note, however, the peculiar history of specific perform-
ance reminds us of how substance and procedure, rights and remedies can
be separated conceptually, but are genealogically connected and inter-
woven. The supremacy of the right to performance in the civil law is a
relatively recent development; classical Roman law of procedure knew
nothing of specific performance, and therefore, one can assume that the
primary obligation to perform a contract did not have the same content or
importance ascribed to it today.144 The medieval concept nemo praecise
cogi ad factum limited the actual availability of the specific enforcement
of obligations; however, it exerted influence on the theory of obligations
and rights as well, as is reflected in the idea that an obligation to do or not

142 Yves-Marie Laithier, tude comparative des sanctions de linexcution du contrat (Paris:

Montchrestien, 2004) at 44-45 [emphasis in original, footnotes omitted].

143 Romero, supra note 137 at 788ff.
144 George Vlavianos, Specific Performance in the Civil Law: Mediating Between Inconsis-
tent Principles Inherited from a Roman-Canonical Tradition via the French Astreinte
and the Qubec Injunction (1993) 24:1 RGD 515 at 518ff.

112 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

to do resolves itself into an obligation to pay damages.145 This is also ap-
parent in the Pandectist notion that the content of every obligation is a
duty to perform in kind and, eventually, to pay an equivalent in dam-
ages.146 In France, it was only the judicial creation of the astreinte, devel-
oped in the early nineteenth century, that established specific perform-
ance as a primary remedy.147 Only the interplay of many factorsfrom
the rise of the subjective right and will theory as the reigning paradigm of
private law to the internal separation of procedure and substance and the
development of actual procedural means of enforcementhas brought
about the current theoretical supremacy of the right to specific perform-
ance. In the life of the law, substance and procedure, right and remedy
have shaped each other reciprocally. To ask which one precedes, in a his-
torical sense, is indeed, as Zakrzewski put it, to ask which came first: the
chicken or the egg.148

The positions of the civil law and the common law traditions are de-
fined by their historically determined conceptualization of the relation-
ship between substance and procedure, right and remedy, and right and
action. It is this insight that makes us realize that the pure civilian posi-
tion can hardly be upheld in an environment where the substantive law is
civilian, but the law of procedure is of common law origin; where judges
have to interpret a code, but have the importance and self-image of com-
mon law judges.149 Our inquiry has briefly outlined the terminological as
well as the theoretical disparities between the common law and civil law
traditions. This helps us understand the tension that is inevitable when
both traditions clash, as is the case in Quebec.150 The unavoidable tension
is palpable in recent cases such as Construction Belcourt Lte v. Golden
Griddle Pancake House Ltd.,151 where the court struggled with the pri-
macy-of-rights approach of the civil law and the connotations evoked by
the term injunction, to which the court kept referring as an equitable

145 Art 1142 C civ.
146 See Dedek, supra note 92 at 138ff.
147 See Vlavianos, supra note 144 at 529ff.
148 See Zakrzewski, supra note 5 at 57.
149 Daniel Jutras, Culture et droit processuel: Le cas du Qubec (2009) 54:2 McGill LJ

273 at 286.

150 Ibid at 273ff. Jutras describes the Quebec legal culture of procedure as a hybrid that is
characterized by a plurality of different legal cultures rather than a homogenous mix-
ture. He identifies, for example, a prevalent North American (rather than Continental-
European) professional culture, and at the same time a normative culture that is char-
acterized by a resurgence of the Quebec Civilian heritage (ibid at 288ff).

151 [1988] RJQ 716 (CS) (available on WL Can).

 REALIZATION OF RIGHTS IN COMMON AND CIVIL PRIVATE LAW 113

remedy.152 In this context Pierre Bienvenu has aptly summed up in one
simple catchphrase the epistemological difference between a common law
remedy and a procedural means to realize a subjective right in the civilian
sense: Linjonction mandatoire: vritable remedy ou simple procdure.153
In recent years, judges in Quebec have been increasingly willing to inter-
pret and develop Quebec civil law within the larger context of the civilian
tradition, as shown by the evolving case law on good faith. It seems to be
in line with this development that, in its approach to specific performance,
Quebec law has managed to assign to the injunction the function of ser-
vant of the substantive right to performanceor, in the words of Bien-
venu, as simple procdureand not that of an equitable remedy in the
common law sense.154

Conclusion

Let us return to the question before us and to our initial tentative an-
swer: Has our inquiry added more evidence in favour of our hypothesis
that remedies precede rights in the common law, and that rights precede
remedies in the civil law? The short answer to the short question might be
yes, but only if we accept that the notions of remedy and (subjective)
right do not, traditionally, have the same meaning for common lawyers
and civilians. In other words, if we accept that, in the civil law, rights do
not precede remedies in an ontological or historical way, but that the idea
of such precedence is itself the result of a complex historical and contin-
gent process.

The lesson to be learned, once more, is to take legal language, to take
differences between legal terminologies seriously. Indeed, as Denis Tallon
remarked, such differences are always indicative of larger and more deep-
seated divergences.155 The lack of remedy in the vocabulary of the civil
law is more than just a matter of different labelling; it is the expression of
a different way of thinking about law. As we observed at the beginning of
our inquiry, translating the ideal into the real is a complex task, common
to every legal system, that binds its adjudicative bodies through prefor-
mulated norms. Only if a legal system is capable of satisfactorily trans-

152 Art 751 CCP.
153 Pierre Bienvenu, Pour linjonction mandatoire comme recours dexcution en nature:

Quelques rflections dun practicien (1989) 20:1 RGD 65 at 72 [emphasis in original].

154 See e.g. Aubrais c Laval (Ville de), [1996] RJQ 2239 (CS) (available on QL); Varnet UK
Ltd c Varnet Software Corp, [1994] RJQ 2755, 59 CPR (3d) 29 (CA); Gosselin c Rock
Forest (Ville de), [1991] RJQ 1000 (CA) (available on QL); Bienvenu, supra note 153;
Rosalie Jukier, The Emergence of Specific Performance as a Major Remedy in Quebec
Law (1987) 47:1 R du B 47.

155 Tallon, Remedies, supra note 8 at 263ff.

114 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

posing the abstract discourse of the law into social reality is justice car-
ried out; only then does the legal machinery fulfill its purpose. Due to the
(literally) pivotal importance of this translational process, the way it is
cast into legal concepts allows for an insight into the remaining epistemo-
logical differences between the legal traditions of the West. In a mixed ju-
risdiction, where those traditions meet, mingle, and clash, the under-
standing of these differences is not just a matter of academic interest. A
thorough exploration of what is in the mix is necessary to understand
the condition of a mixed jurisdiction, and to define its future course.