Stephen A. Smith (McGill University - Faculty of Law) has posted Why Courts Make Orders (and What this Tells Us About Damages) (Current Legal Problems, Forthcoming) on SSRN. Here is the abstract:
The rules governing the availability and content of court orders are well-known, but order themselves are little studied. Focusing on final orders made in private litigation (eg, to pay a sum of money, to give up possession of land), I argue that orders are fundamentally commands. Unlike rules (which purport to provide moral guidance) and sanctions (which provide material incentives), orders simply tell their subjects to do or not to do an action. Orders are meant to be practically, not morally, authoritative. Thus understood, orders are appropriately used for two main purposes: (i) to motivate defendants to perform actions required by rule-based duties (replicative orders); (ii) to motivate defendants to perform actions that are not, and in principle should not be, required by rule-based duties (creative orders). The first category is limited to actions that, in the courts’ view, defendants have moral duties to perform; the latter to all other actions. In the second half of the essay, I apply these ideas to damages orders, and make three main arguments. First, damages orders are creative orders. Secondly, many contemporary theories of damages must be rejected because they assume that a duty to pay damages arises on injury and, further, that it is a moral duty. Scholars seeking to explain damages have two basic options: they can adopt an instrumentalist theory or they can argue that damages orders are intended, in broad outline, to do what retributivist theorists think punishment does. In practice, the latter option entails arguing, broadly, that damages are meant either to restore a normative equilibrium or to communicate the wrongness of the defendant’s act. Finally, I tentatively suggest that theories in the latter group are appropriately described as corrective justice theories.