Cracks in the Cathedral: Legal Remedies in Common Law and Civil Law

Giuseppe Bellantuono (Università degli studi di Trento)

Abstract

Calabresi and Melamed’s theoretical framework has been hugely influential. But did it affect the development of remedial law in common law and civil law countries? Apparently, the answer is no. in common law countries, experts of remedies reject the property rule-liability rule dichotomy. In civil law countries, the taxonomy is often said not to reflect legal traditions. This disjunction between the theoretical framework and the law in action is ironic, in view of Calabresi’s own plea for a Law and Economics approach fully aware of the dynamics driving the evolution of legal systems.
This paper argues that, to appreciate the influence of Calabresi and Melamed’s framework, attention must be paid to the complex interplay between rights and remedies. In no legal system such interplay follows a single model. Several models co-exist and compete at the same time. Most models are monist: they assume that a right perspective, a remedial perspective or an integrated perspective shall prevail. Though, the possibility for a dualist model to emerge is not excluded. The hallmark of a dualist view is that it lends the same relevance to factors connected to substantive rights and factors connected to different interests. It is submitted that only when a dualist approach is embraced, the framework proposed by Calabresi and Melamed has the chance to influence the selection of remedies.
The paper first discussed the co-existence of different rights-remedies models in common law and civil law countries. It then reviews the criticisms levelled at the Calabresi-Melamed framework from the point of view of its congruence with each model. Finally, the paper links the debate on the remedial perspective to the special legal regime for the negotiation of remedial contract terms.

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