On The Remedy Theory Of Anglo-American Law

It is a well-known thesis in legal science that"Where there isn't remedy, there isn't right". The key word of this thesis is"remedy", which emphasizes that any pronouncement of rights is meaningless if there isn't any remedy. Therefore, the remedy of rights is an important part in rights studies. At present, the studies of rights principally focus on the justification of rights, that is, scholars concentrate on the necessity and rationality of rights, while lack interests in practical research in terms of the operation of rights. As a result, it can hardly provide any effective theoretical direction for the construction and operation of the remedy of rights in actual practice. This article will further the justification of rights towards the operation of rights.Compared with the reality of remedy of rights in our country, remedy research have been focused on by lawyers in the west, especially in Anglo-American country and hence many theoretical achievements in this respect. Therefore, attention has largely been directed in this article to the remedy theory of Anglo-American law. It is hoped that this research can provide some theoretical direction for the construction of remedy institution in China.This article consists of four chapters, besides the introduction and the conclusion. The introduction expounds mainly the formation and the composition of the thesis, and emphasizes the meanings of the studies on the remedy theory of Anglo-American law.Chapter one, the concept of remedy in Anglo-American law. The literal meaning of remedy is to cure for something nasty. Remedy means to cure or to make better. The only precondition to the use of this word is a state of affairs which needs making better. With the relationship between something nasty and its improvement, the notion of remedy is extended into the legal context. Remedy is widely used in Anglo-American law. In a broad sense, remedy does not have any specific reference and it is basically a functional expression, that is, it is often used in legal discourse to refer to a redress to a grievance provided by the law. Based on this functional definition, remedy is used in four specific senses in legal discourse: (1) an action and cause of action; (2) a substantive right born of a wrong and an injustice; (3) an order or judgment of a court; (4) means of enforcing a court order. The manifolds of the meaning of remedy cause trouble in the study of it. Although different scholar may seemingly talk about the same subject, their research objects can be very different. Therefore, this article expounds the core meaning of remedy in Anglo-American law, which is a starting point of further analysis. It is found that although the connotation of remedy is quite unstable, most writers tend to agree on one of its meanings, that is, a court order or judgment. In sum, it is hold in this paper that the stable core meaning of remedy is a court order of judgment.Chapter two, remedy and rights. This chapter dwells on the relationship between remedy and substantive rights, including the distinctions and connections between them, and finally presents a new classification with these relationships as a basis. It comes to the conclusion that there is a demarcation line between substantive rights and remedy. Secondary rights and part of primary rights with the nature of remedy should not be viewed as remedy, and hence not the subject in this field. However, it cannot be denied that there are some connections between remedy and substantive rights. Generally, the precondition of remedy is the fact that the existed substantive rights have been or will be infringed or threatened while remedy on this respect connotes the redress of the infringed rights and the prevention of future infringements. In brief, substantive rights are the cornerstone of remedy; remedy is the key in the realization of substantive rights, and always has as its objective the promotion of the development of substantive rights. Subject to certain qualifications, remedy should reflect the rights or the policy behind that as precisely as possible. However, the provision of remedy does not completely rest on the infringement of existed substantive rights. In Anglo-American law, remedy has an independent status relative to substantive and procedural laws. It is allowed in Anglo-American law to create new substantive rights or to change them via remedy. With as a basis the relationship between remedy and substantive rights, a new classification of remedy is expounded: replicative remedy and transformative remedy. The criteria for this classification is whether remedy as the order or judgment of the court is the replication of the existed substantive rights or creates something different from the rights and duties of the parties before the order of the court.Chapter three, remedy and discretion. Efforts have been made in this chapter to explore the function of discretion relevant to different classes of remedy, including discretion as to replicative remedy in common, discretion as to replicative remedy in equity and discretion as to transformative remedy. It is held that nearly all remedies are discretional, and even replicative remedy in common law is connected in some way to discretion. At the same time, discretion as to replicative remedy in equity should not be exaggerated. The discretion in judges'grant or refusal of replicative remedy in equity is discretion in the weak sense of that word, that is, discretion with as its basis rules that stipulate specific results. Compared with discretion as to replicative remedy, discretion as to transformative remedy is relatively more wide and strong. It is discretion that can create remedy and hence its name"remedial discretion". Under Anglo-American laws, judges can exert their remedial discretion and give remedy as they think appropriate. This open approach stems from the old tradition of remedy in equity as well as modern institutions of discretional remedy. It has been proved that this remedy system under Anglo-American laws is more flexible and open and can better meet the needs of modern society. It ensures a better adaptation of Anglo-American laws to the requirements and needs of our time.Chapter four, thoughts on the remedy of our civil rights. After the investigation of remedy theories under Anglo-American laws, this chapter shifts its attention from abroad to home. The present state of affairs in terms of remedy of rights is first explored. It is deemed that with China orientation on"legislation", there are many problems in the field of remedy of rights: the absence of the culture of remedy of rights, the decentering of judicial remedy, the"separations"in legislation, the irrationality of the system of remedy of rights and the many problems in judicial remedy itself. Against such problems, the following suggestions and advices are proposed: the emphasis of remedy in the system of rights, the establishment of the central position of judicial remedy, the enlargement of the scope of the objects of judicial remedy, the broadening of judges'discretion, the emphasis on the development of judicial techniques, the improvement of judges'quality and ability, etc. In a word, we must come to be aware of the indispensability of judicature in our rule of law, because judicature is about the realization of rights and even the development of laws. Therefore, we should not only pronounce rights, we should also pay attention to the remedy of rights by judicial means. Remedy of right is critical to individual rights as well as the stability of our society.The conclusion sums up the reasons of the advancement of Anglo-American remedy theories and proposes further research plans.