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The Law’s Remedial Norms

James Penner & KarLuis Quek

(2016) 28 SAcLJ 768

In recent years the nature of remedial norms, in particular the nature of final court orders, has received significant attention, following a long absence of theoretical interest. Largely in response to the recent work of Stephen Smith, the authors consider some of the pressing theoretical issues concerning remedial norms, and argue, first, that Smith is correct in claiming that there is no legal duty on a wrongdoer to pay a sum of money damages to the victim of his wrong prior to any court order. Second, prior to a court order a wrongdoer does owe her victim a moral duty of repair, a duty which while morally recognised is not legally enforced; the authors characterise this moral duty as a Kantian duty of virtue. Complying with this duty is encouraged by the rules governing costs and settlement. Third, the authors argue that prior to the award of a formal court order, the relationship between the plaintiff victim and the defendant wrongdoer can only fruitfully be revealed through recognising that their relationship is governed by the trilateral structure of litigation in which the court norms in relation to each of them are clearly set out. Finally, the authors argue, pace Smith, that the Razian theory of authority is entirely adequate for explaining the authority of the court when it issues orders.