Remedies Reclassified
Type de ressource
Auteur/contributeur
- Zakrzewski, Rafal (Auteur)
Titre
Remedies Reclassified
Résumé
Lord Steyn started his speech in Attorney General v Blake by saying, 'My Lords, in law classification is important. Asking the right questions in the right order reduces the risk of wrong decisions. This truth is illustrated by the case before the House.'? This chapter focuses on the classification of remedies. As Kercher points out, 'The coherence of our study of Remedies does not come from its social, political or legal background ... Our study's coherence comes from the ways in which we classify these remedies. Unfortunately our current classifications of remedies are defective. Naturally this impacts on the coherence of the law of remedies.
ln this chapter we will evolve a model of what might be called a dominant or received classification of remedies and we will ultimately conclude that the basic criterion for such a classification has to be totally different. The fundamental proposition should be that remedies either replicate antecedent (substantive) rights or transform them. ln reaching this conclusion, and rejecting others, we have to observe a number of essential principles of classification. ln particular the classifier's eye has to be kept on the following three questions.
First, what is being classified? Given the instability of 'remedy', what purport to be classifications of remedies may in fact not be comparing like with like. Foreign matter sometimes finds its way into classifications. Just as a classification of books must exclude newspapers and paintings, so a classification of remedies must rigorously exclude whatever does not fall within the definition of a remedy.
Second, what criterion operates? Every classification has a basis according to which different categories are distinguished. For example, book content and name of author are possible criteria for the classification of books. If a taxonomy uses more than one criterion it must be hierarchical; that is, composed of different levels. Only one criterion can operate at any one level of a hierarchy. We will see that writers on remedies have not been sensitive to this requirement. Current classifications of remedies erroneously mix different criteria. This is as if books were classified into law books, chemistry books, art books, and books by English authors; that is, according to a series that mixed the criteria of content and nationality of the author.
Third, what could a disciplined classification of remedies look like? We will see that it diverges dramatically from the usual practice. A new classification primarily based on the relationship between remedies and the substantive rights to which they give effect will be outlined.
Lieu
Oxford
Maison d’édition
Oxford University Press
Date
2005
Langue
English
Titre abrégé
Remedies Reclassified
Archive
Ariane
Loc. dans l'archive
i9780199278756
Catalogue de bibl.
Bibliothèque de l'Université Laval
Cote
K 2315 Z21 2005
Référence
Zakrzewski, R. (2005). Remedies Reclassified. Oxford University Press. http://ariane25.bibl.ulaval.ca/ariane/wicket/detail?c=ariane&m=S&rq.ct=PE&rq.fa=false&rq.r.esc=false&rq.r.l%5B0%5D.c=TI&rq.r.l%5B0%5D.ex=false&rq.r.l%5B0%5D.op=AND&rq.r.l%5B0%5D.v=Remedies+reclassified&rq.r.la=*&rq.r.loc=*&rq.r.pft=true&rq.r.ta=*&rq.r.td=*&rq.rows=1&rq.st=0
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