The Law of Damages: Rules for Citizens or Rules for Courts?

Abstract

Legal scholars have devoted considerable attention to the normative foundations of the law of damages. Little attention, however, has been devoted to the law of damages' analytic foundations, that is, to the question of what, if anything, is distinctive about damages law as a legal subject. In particular, little has been said about the nature of the rights recognized by damages law. This paper explains why the analytic question is important and what kinds of factors need to be taken into account when answering it. The paper also makes three substantive arguments. The first is that the most basic unanswered analytic question about the law of damages is whether damages rules are directed at citizens (i.e., rules directing citizens how to act) or at courts (i.e., rules directing courts how to act). The second is that the question of whether damages rules are directed at citizens or courts cannot usefully be asked of damages law as a whole, but must instead be addressed to particular categories of rules - and even then the answers are not straightforward. The final argument, which draws upon a discussion of the main orders granted for breach of contract, is that the law of damages is comprised partly of rules directed at citizens and partly of rules directed at courts. The law of damages, as presently conceived, is a mixture of private and public law.

Keywords: damages, contract, tort, private law theory

JEL Classification: K10, K12, K13