Description

While remedies have always been a staple in doctrinal debates within the law of obligations, recent interventions in private law theory have sought to excavate the foundational logic of ubi jus ibi remedium. Stevens observes that ‘[i]n theory, the law could adopt almost any secondary obligation in response to a wrong. A trespasser could have his hands cut off, or a slanderer could be required to be locked in stocks and publicly humiliated’. In the realm of morality, Gardner asks a similar basic question: ‘Why would anyone, including the person wronged, think of repair and apology in particular as suitable measures by which to secure the relevant reconciliation? What gives these particular actions their special salience, and hence their special hold over human psychology? Why not dancing, taking a day off work, learning Arabic, or doodling in red ink?’

Operating in similar vein, the purpose of this project is to re-consider our remedial practices and institutions from first principles. In contrast to those who have insisted on some version of a ‘continuity thesis’ as between rights and remedies, the speaker locates irreducible discontinuities at two levels: (i) in the realm of morality, as between primary obligations and secondary obligations of recognition, reparation, retribution and/or reconciliation, the choice and precise articulation of which depend of the nature of the right, the type of wrong, and the nature of the parties’ relationship; and (ii) in the realm of the legal, as between moral rights/remedies and legal rights/remedies, which necessitates a closer interrogation of the moral contribution or impact made by the institution of remedial law, taking into account its distinctive values and mode of operation.

The theoretical framework he offers suggests a clearer starting point for thinking through cognate issues over the place of extra-compensatory remedies (such as ‘vindicatory’, ‘substitutive’, ‘market-price’ and ‘user’ damages) in doctrine, as well as long-standing theoretical debates (e.g. efficient breach versus promissory morality, and civil recourse versus corrective justice), and moreover points us toward a constructive critique of the inherent limitations of monetary or commodified remedies in private law.

About The Speaker

A graduate of Harvard Law School and the NUS Law Faculty, Zhong Xing first joined the faculty as a member of the inaugural batch of Sheridan Fellows, subsequently being appointed Assistant Professor in 2018. Zhong Xing’s research and teaching interests are in contract law, private law and legal theory, and commercial and corporate law more generally, as well as the various intersection points between these fields. He has published work in these areas in a number of leading generalist and specialist journals including the Modern Law Review and Legal Studies.

 Over the last few years Zhong Xing has been the recipient of various awards, including the Hart Publishing Prize for the best paper by an early career scholar at the Ninth Biennial Conference on the Law of Obligations (2018), and previously, Harvard Law School’s Project on the Foundations of Private Law Prize. He teaches contract law and legal theory at NUS Law.