Common Law Concepts — The Problem of Indefinability

Abstract

Cases are tried because plaintiffs seek remedies that defendants contest. In litigation there can be little doubt that the availability of a remedy is the central concern of the jurist. When, however, legal advice is dispensed to clients outside the sphere of litigation there is much talk of rights, duties, powers etc.; often without reference to possible remedies. This is a confusing phenomenon. It obscures essential juridical reasoning. Any jurist knows that to advise a client that he or she possesses a legal right is inappropriate unless there is some legal remedy concurrent with that right. The only justification for the assertion that there exists a legal right, duty or power is that some remedy is available for failure to respect the right, for breach of the duty, for misfeasance or nonfeasance in the exercise of the power. Hence, at one level at least, discussion of the legal position of a party in a non-litigious situation involves just as great a consideration of the availability of a remedy as does consideration of his fate in litigation itself. A theory of legal argumentation must therefore seek to explain that process by which a decision that a remedy should be awarded in given circumstances can be taken and justified.