The normativity of private law

Oxford Journal of Legal Studies

Volumn 31, Issue 2, 2011, Pages 215-242

  Smith, Stephen A ^a  

^a MCGILL UNIVERSITY   (Canada)

Author keywords

Law and economics; Legal theory; Private law

Indexed keywords

EID: 80052616759     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqr002     Document Type: Article

References (114)

1. Whether citizens ought to do what the law tells them to do is of course a different question.
2. See Section 2 and especially nn 10-13, below. In this article, 'utilitarian' scholars include scholars who believe the law maximizes, or should maximize, overall welfare, as well as scholars who believe the law promotes, or should promote, a particular distribution of welfare.
3. See nn 9-11, 17-18, below and associated text.
4. Some writers define 'incentive' so as to include things like the guilt or shame felt on breaking a moral norm: Richard H McAdams and Eric B Rasmusen, 'Norms and the Law' in A Mitchell Polinsky and Steven Shavell (eds), The Handbook of Law and Economics (vol 2 Elsevier, Amsterdam 2007) 1573.
5. In this article, references to incentives are exclusively to material incentives, such as monetary penalties or rewards. This is the conventional understanding of incentive. Material incentives are the only kinds of incentives that the law itself can impose; they are also the focus of the utilitarian analyses of private law.
6. The sanctions thesis is not identical to the so-called 'sanction theory of law', that is, to the view that the distinguishing feature of law, as a social institution, is that it imposes sanctions on those who disobey its wishes. The sanctions thesis is not a theory about the essential nature of law: it is merely a theory about how private law influences citizens' behaviour. The sanction theory of law, for its part, need not assume that when citizens comply with the law they do so because of threatened legal sanctions.
7. The theory's best-known defender, Hans Kelsen, thought it was irrelevant (so far as the theory was concerned) why citizens were motivated to comply with the law: Hans Kelsen, General Theory of Law and State (Anders Wedberg trs, Russell and Russell, New York 1961) 72.
8. Cf Frederick Schauer, 'Was Austin Right After All? On the Role of Sanctions in a Theory of Law' (2010) 23 Ratio Juris 1-21.
9. The exception is a belief that citizens are influenced by the extra-legal meta-norm of obeying the law ('meta' because it is a norm to follow other norms, in this case legal norms). The idea that citizens are influenced by the meta-norm of obeying the law is equivalent to the idea that citizens follow legal norms because they are norms.
10. It should be kept in mind that citizens might be influenced to do what the law requires because of extra-legal incentives. For example, citizens might follow the law because law breakers are shunned by the community. This possibility is inconsistent with the sanctions thesis (because it allows that the law can influence behaviour other than by attaching consequences), but I will not explore it further as it is only tangentially related to the question of whether citizens are influenced by normative legal language. It is also immaterial to my argument why citizens who believe in an obligation to obey the law believe this (even if the explanation is that they are unconsciously influenced by extra-legal incentives, eg the risk of being shunned). It is sufficient that they treat legal directives as valid directives. For further discussion see nn 9 and 29.
11. Economic methodologies can be employed without believing that the law does, or should, promote welfare. In practice, however, the best-known economic accounts of private law adopt this position or a close cousin (eg the view that the law should promote welfare but should also give weight to distributional concerns).
12. There are exceptions. Law and economics scholarship often focuses on the utility of complying with a legal rule, without asking why the rule is followed. For example, economic discussions of the rule that requires recipients of mistaken payments to return those payments typically focus on the utilitarian value of making such payments. Nothing is said about why mistaken transferors actually make the payments (see nn 43-45 and associated text). It is likely that some authors who make arguments of this kind would accept that the rules they are studying are followed, at least some of the time, just because they are legal rules.
13. Furthermore, the discussion in the social norms literature about the meta-norm of obeying the law, though not extensive, accepts without question that the norm exists and influences behaviour: see in particular Robert Cooter, 'Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms' (2000) 86 Va L Rev 1577-1601.
14. Robert D Cooter, 'The Intrinsic Value of Obeying a Law: Economic Analysis of the Internal Viewpoint' (2006) 75 Fordham L Rev 1275-85.
15. Much of social norms literature is written by utilitarian scholars who adopt a broadly law and economics perspective, but these scholars have said little about the literature's implications for understanding basic private law and their work has had little influence on the law and economics private law literature.
16. Cooter's own co-authored law and economics textbook does not mention the meta-norm to obey the law in its discussion of private law: Robert Cooter and Thomas Ulen, Law and Economics (3rd edn, Addison-Wesley and Co, Reading, MA 2000).
17. I discuss another challenge for the sanctions thesis from the social norms literature-the idea that laws can create or modify social norms-in n 25. There is also a substantial literature, some of it written from a broadly law and economics perspective, on empirical studies of whether, and why, individuals and groups obey the law: see n 21. Again, although the studies discussed in this literature implicitly challenge the sanctions thesis (see text associated with n 21), the literature itself says little about, and has had little influence on, utilitarian private law theory.
18. Nicholas Mercuro and Steven G Medema, Economics and the Law: From Posner to Postmodernism (2nd edn, Princeton University Press, Princeton 2006) 43-44.
19. See also, eg Steven Shavell, 'Law Versus Morality as Regulators of Conduct' (2002) 4 Am L Econ Rev 227-57, 227 ('It is evident that both law and morality serve to channel our behaviour. Law accomplishes this primarily through the threat of sanctions if we disobey legal rules').
20. Cooter and Ulen (n 9) 9 ('This book will teach you to view laws as incentives for changing behaviour (implicit prices) and as instruments for policy objectives (efficiency and distribution)').
21. Werner Z Hirsch, Law and Economics: An Introductory Analysis (2nd edn, Academic Press, Boston 1988) 1 ('laws are authoritative directives that impose costs and benefits on participants in a transaction and in the process alter incentives').
22. Thomas J Miceli, The Economic Approach to Law (Stanford Economics and Finance, Stanford, CA 2004) 1 ('The economic approach to law assumes that rational individuals view legal sanctions (monetary damages, prison) as implicit prices for certain kinds of behaviour, and that these prices can be set to guide these behaviours in a socially desirable direction').
23. Paul G Mahoney, '4600 Contract Remedies: General' in Boudewijn Bouckaert and Gerrit De Geest (eds), Encyclopedia of Law and Economics (vol 3 Edward Elgar, Northampton, MA 2000) 117, 118; ('The economic function of contract remedies, then, is to alter the incentives facing the party who regrets entering into the contract...').
24. Nicholas L Georgakopoulos, Principles and Methods of Law and Economics: Basic Tools for Normative Reasoning (Cambridge University Press, Cambridge 2005) 7; (The 'ubiquity of incentives' is a '[f]undamental assumption throughout' the text).
25. Richard A Posner, The Economics of Justice (Harvard University Press, Cambridge, MA 1983) 74 ('The basic function of law in an economic or wealth maximizing perspective is to alter incentives').
26. These statements owe an obvious debt to Holmes' view that to understand the law one must look at it from the perspective of a 'bad man', that is, from the perspective of citizens who care only for the sanctions the law may impose on them: Oliver Wendell Holmes Jr, 'The Path of the Law' (1897) 10 Harv L Rev 457-78, 459.
27. Steven Shavell, 'Liability for Accidents' in Handbook (n 4), vol 1, 139.
28. Dean Lueck and Thomas Miceli, 'Property Law' in Handbook (n 4), vol 1, 183.
29. The Handbook includes a chapter on social norms (McAdams and Rasmusen (n 4)), but in this chapter's discussion of private law the focus is on ordinary social norms such as the norm against injuring others. The meta-norm of obeying the law is mentioned briefly in the general part of the chapter (1591), but it is not raised in the discussion of private law.
30. See eg Richard A Posner, Economic Analysis of Law (6th edn, Aspen, New York 2003)
31. Richard Craswell, '4000 Contract Law: General Theories' in Bouckaert and De Geest (n 10) 1.
32. 'Contract Law' in Steven Shavell (ed), Foundations of Economic Analysis of Law (Belknap Press, Cambridge, MA 2004) ch 3, 289-385.
33. Cooter and Ulen (n 9).
34. Thomas J Miceli, Economics of the Law: Torts, Contracts, Property and Litigation (OUP, New York 1997) 997.
35. Miceli (n 10).
36. Jennifer Arlen, '3500 Tort Damages' in Bouckaert and De Geest (n 10) vol 2, 682
37. Mahoney (n 10).
38. Anthony Ogus, Costs and Cautionary Tales: Economic Insights for the Law (Hart, Oxford 2006).
39. Christopher T Wonnell, '3900: Unjust Enrichment and Quasi-Contracts' in Bouckaert and De Geest (n 10) vol 2, 795.
40. A Mitchell Polinsky, An Introduction to Law and Economics (3rd edn Aspen, New York NY 2003).
41. Hirsch (n 10).
42. 'Accident Law' in Steven Shavell (ed), Foundations of Economic Analysis of Law (Belknap Press, Cambridge, MA 2004) ch 2, 175-287.
43. Steven Shavell, Economic Analysis of Accident Law (Harvard University Press, Cambridge MA 1987).
44. Cento G Veljanovski, Economic Principles of Law (Cambridge University Press, Cambridge 2007).
45. William M Landes and Richard A Posner, The Economic Structure of Tort Law (Harvard University Press, Cambridge, MA 1987).
46. Jeffrey L Harrison and Jules Theeuwes, Law and Economics (WW Norton and Co, New York 2008).
47. To the contrary, the chapter on 'Norms and the Law' says that economic methodology is eminently suited to studying how normative beliefs, including a belief in the obligation to obey the law, influence behaviour: McAdams and Rasmusen (n 4) 1575. This view appears to be based on the assumption that things like guilt and shame are 'incentives' in the same way that legal sanctions are incentives.
48. Shavell, Foundations (n 13); Cooter and Ulen (n 9) 3 (after explaining that '[t]o economists, sanctions look like prices' Cooter and Ulen conclude as follows: 'Generalizing, we can say that economics provides a behavioural theory to predict how people respond to changes in the law.').
49. See eg Cooter and Ulen (n 9) 3-4; Posner (n 13) ch 1; Shavell, Foundations (n 13) 1-4.
50. Miceli, The Economic Approach (n 10) 1-4.
51. Benjamin E Hermalin, Avery W Katz and Richard Craswell, 'Contract Law' in Handbook (n 4), vol 1, 3, 15-18.
52. Two important categories of rules discussed in private law textbooks do not fit this description. The first includes rules that provide norms for courts, not citizens. The main examples are the rules that govern rights to court orders, such as those governing limitation periods and the availability of particular orders such as specific performance or punitive damages. These rules undoubtedly influence citizens' behaviour: contracting parties who are aware that a limitation period has expired may decide, for that reason, not to perform a contractual obligation. But they are directed at courts, not citizens; these rules provide judges (not citizens) with directives to award or refuse to award a court order: see Stephen A Smith, 'The Law of Damages: Rules for Citizens or Rules for Courts?' in Djakhongir Saidov and Ralph Cunnington (eds), Contract Damages: Domestic and International Perspectives (Hart, Oxford 2008) 33.
53. The second category includes rules that confer powers, immunities, permissions, liabilities and so on. These rules do not impose duties and so are not directly normative. They are, however, indirectly normative in that they describe ways in which citizens may create duties, modify duties, be exempt from duties and so on.
54. Echoing Kelsen (n 5) 18-20, but with the important difference that the sanctions thesis is not, like Kelsen's theory, a thesis about the essential nature of law.
55. Jeremy Bentham, whose work anticipated much of contemporary law and economics scholarship, regarded most of what we would now call private law as criminal law precisely because he thought that civil sanctions served the same deterrent purpose as criminal punishment: see Jeremy Bentham, in JH Burns and HLA Hart (eds), An Introduction to the Principles of Morals and Legislation (OUP, New York 1970) ch 16.
56. The possibility that legal officials follow legal norms out of fear of legal sanctions has never been suggested in the utilitarian literature and is vulnerable to Hart's observation (in his critique of Austin) that it is inconsistent with the persistence of law over time and other central features of a legal system: HLA Hart, The Concept of Law (Clarendon Press, Oxford 1961) 61-6.
57. The argument is not mentioned in Richard Posner's account of judicial motivations: 'What Do Judges Maximize? The Same Thing Everybody Else Does' in Richard A Posner (ed), Overcoming Law (Harvard University Press, Cambridge, MA 1995) ch 3, 109-44.
58. The most important empirical study is described in Tom R Tyler, Why People Obey the Law (Yale University Press, New Haven 1990).
59. Tyler also cites and discusses previous studies, summarizing their findings (which his study corroborated): 'Although the studies examined differ in many ways... they all reinforce the conclusion that normative support for the system leads to compliant behaviour' (37-8).
60. Later summaries of the empirical literature reach the same conclusion: Paul H Robinson and John M Darley, 'The Utility of Desert' (1997) 91 Nw UL Rev 453-99, 468-71.
61. Amir N Licht, 'Social Norms and the Law: Why Peoples Obey the Law' (2008) 4 Rev Law Economics 715-50.
62. Hart made the same point when he famously observed, in the course of critiquing Austin and Holmes, that for many citizens legal rules function not as signals that a sanction might be applied, but as sources of obligations: see Hart (n 20) 88-91. Hart made no attempt to prove, empirically, that such citizens existed and his account of the essential elements of a legal system did not require that they exist. Hart's account only supposed that it was necessary for legal officials to regard legal rules in this way.
63. For an overview, see McAdams and Rasmusen (n 4) 1586. The law and economics scholars typically speak of 'social norms' rather than 'moral beliefs'. There is no agreed definition of a social norm, but the most common view is that a social norm exists where a significant number of citizens behave in a similar fashion and where this behaviour is accompanied by normative attitudes such that non-conforming behaviour is met with disapproval: see McAdams and Rasmusen (n 4) 1576. I refer to a 'moral belief ' in obeying the law rather than a 'social norm' not because there is no social norm to obey the law-there is-but because it is artificially restricting to assume that a moral belief can only motivate insofar as it is shared and acted upon by others. The social norms literature does not generally dispute this. Although some social norms scholars focus on the reputational and co-ordinating effect of following social norms, it is generally accepted that people often act on their moral beliefs simply because they believe them (for those committed to rational choice theories of behaviour this is explained on the ground that individuals want to avoid the unpleasant sensation of guilt). McAdams and Rasmusen (n 4) write: 'Guilt is disutility that arises when a person behaves in ways he thinks wrong. The converse, pride, is utility that arises when he behaves in ways he thinks virtuous... These incentives do not require that anyone else know how the person acted' (1579).
64. Supporters of the latter view include: McAdams and Rasmusen (n 4) 1586, 1709-10.
65. Timur Kuran and Cass R Sunstein 'Availability Cascades and Risk Regulation' (1999) 51 Stan L Rev 683-768.
66. See eg Cass R Sunstein, 'On the Expressive Function of Law' (1996) 144 U Pa L Rev 2021-53, 2021-25.
67. Richard H McAdams, 'The Origins, Development and Regulation of Norms' (1997) 96 Mich L Rev 338-433.
68. Lawrence Lessig, 'The New Chicago School' (1998) 27 J Legal Stud 661-91.
69. Robert D Cooter, 'Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant' (1996) 144 U Pa L Rev 1643-96.
70. The idea that law can influence behaviour by modifying or creating moral beliefs challenges the sanctions thesis, but it is distinct from this article's argument that the law influences behaviour because of an already-existing moral belief that law should be obeyed. A citizen might do what the law requires because she thinks the law should be obeyed, and she might do so regardless of what she otherwise thinks of the behaviour required by the law and regardless of whether the legal rule has any effect on what she thinks of that behaviour. Further, the idea that law can influence moral beliefs does not suppose (as does this article's argument) that the law influences behaviour because of its normativity. Insofar as the law influences moral beliefs, it does so by supporting, facilitating, instigating, etc, certain behaviours or attitudes; for example, citizens might be more disposed to regard littering as wrong if, following the introduction of a law against littering, significant numbers of other people stopped littering. The distinction holds even if it turns out that the reason some of the other people stopped littering is that they believe in obeying the law. The idea that law influences behaviour by influencing moral beliefs is not an explanation of the behaviour of law believers.
71. The social norm theorists accept that this belief is widespread: see in particular Cooter, 'Do Good Laws make Good Citizens?'
72. Cooter, 'The Intrinsic Value of Obeying a Law' (n 9).
73. Cooter focuses on the belief 's role in facilitating lawmakers' attempts to influence behaviour by modifying other moral beliefs. He suggests, inter alia, that citizens who endorse a meta-norm of obeying the law will be disposed to bring their other moral beliefs into line with substantive legal norms. This is an important suggestion, but as explained in the previous note, it is not the same as the suggestion that the law influences behaviour because citizens are disposed to treat legal rules as valid directives.
74. See eg Joseph Raz, The Morality of Freedom (OUP, New York 1986) part 1.
75. The assumption is occasionally explicitly announced and defended: see eg Alan Schwartz and Robert E Scott, 'Contract Theory and the Limits of Contract Law' (2003) 113 Yale LJ 541-619.
76. See eg Brenda Joyner and Dinah Payne, 'Evolution and Implementation: A Study of Values, Business Ethics and Corporate Social Responsibility' (2002) 41 J Business Ethics 297-311.
77. Bert van de Ven and Johan Graafland, 'Strategic and Moral Motivation for Corporate Social Responsibility' (2006) 22 J Corporate Citizenship 111-23.
78. Here and in the discussion that follows I assume that from the law's perspective the content of a contractual duty is a duty to perform, not a duty to perform or pay damages. This assumption takes no position on the argument that courts should regard contractual duties as disjunctive duties. It simply observes that when courts award damages for breach of contract they do not say they are enforcing an implied-in-fact or implied-in-law term: what they say is that damages are awarded because the contract was breached. It follows that a law-believing vendor would regard her duty in a contract of sale as a duty to deliver the promised goods rather than a duty to deliver or pay damages equal to the value of the promised goods.
79. The explanations found in the social norms literature for why citizens adopt and respect conventional moral beliefs vary, but they all assume that the explanation lies in the conventionality, rather than the substance, of conventional beliefs.
80. The literature assumes, in other words, that citizens typically adopt conventional moral beliefs as a group: see Robert C Ellickson, Order without Law: How Neighbours Settle Disputes (Harvard University Press, Cambridge, MA 1991).
81. Eric A Posner, Law and Social Norms (Harvard University Press, Cambridge, MA 2000).
82. McAdams and Rasmusen (n 4).
83. FH Lawson, Remedies of English Law (2nd edn, Butterworths, London 1980) 12-14.
84. The sanctions thesis is prominent in the law and economics literature on private law remedies. The analysis of damages rules, for example, invariably begins by stressing that the basic purpose of damages is to give potential defendants incentives to act in certain ways: see eg Cooter and Ulen (n 9) 290 ('When potential wrongdoers internalize the costs of the harm they cause [by having to pay damages], they have incentives to invest in safety at the efficient level'); Mahoney (n 10) 118 ('The economic function of contract remedies, then, is to alter the incentives facing the party who regrets entering into the contract...').
85. Because the law and economics literature rarely distinguishes between court orders and the enforcement of court orders, there is almost no discussion in that literature of the utilitarian value of the specific act of making court orders (as opposed to enforcing orders). There appear to be at least two possibilities. First, court orders can serve as a warning or reminder to defendants that they are likely to be sanctioned if they continue in their present course of behaviour: see Posner (n 13) 25-6. Second, court orders can specify more precisely than general legal rules what the defendant must do if he wishes to avoid incurring a sanction (eg, the defendant must stop using his property in a certain way if he wishes to avoid being imprisoned for being in contempt).
86. Divorce Act, RSC 1985 (2d Supp), c 3, s 15(2); see also Divorce Act s 16(1) and the Family Relations Act, RSBC 1996, c 128.
87. The issue cannot be explored here, but it is arguable that all damages orders create new duties (which would explain, inter alia, why it is no defence to an action for damages that the defendant has already paid the claimant the sum determined by the court): see, eg Benjamin Zipursky, 'Civil Recourse, Not Corrective Justice' (2003) 91 Georgetown L J 695-756, 718-21.
88. If this is the case, then the second reason is more important than suggested above. I discuss the concept of duty-creating orders in Smith (n 17).
89. When court orders work in this way, they draw upon, rather than attempt to modify or create, a social norm. As noted earlier, the literature on social norms and the law focuses primarily on the ways in which the law can modify or create social norms.
90. It might be thought that a further reason that losing defendants could be receptive to court orders qua orders is that many private law duties are either duties to take care not to harm others or duties not to harm others even if care is taken. Such duties can be breached without showing disrespect for the law. Yet even if the original breach was innocent, in many, perhaps most, cases of this kind, the relevant court order is an order to perform an ongoing, unperformed, duty. In contract cases, the duty may be a continuing duty to perform the contract itself. In most private law cases, however, the ordered duty is a duty to pay compensatory damages. Although the issue requires further exploration (see n 37), it is usually assumed that the duty to pay damages arises at the moment of injury: see eg Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 847 ('Every failure to perform a primary obligation... gives rise by implication of the common law... to [a secondary obligation] to pay monetary compensation to the other party'). If this is right, then disrespect for the law is shown in such cases by the failure to pay damages.
91. The discussion in this Part has focused on explaining why defendants sometimes regard court orders as the directives that they purport to be, but it also makes clear why there are good utilitarian reasons for courts to present court orders as directives (as opposed to, say, directions to officials to apply sanctions). As in the case of norm-creating legal rules, norm-creating court orders are a low cost method of influencing behaviour. Trials are costly, but they would be necessary even if courts were willing, following a finding of liability, to immediately order legal officials to apply sanctions. The disadvantage of immediately moving to enforcement is that in many cases legal officials do not need to act because citizens will comply with court orders.
92. The practice of backing up rules and orders with coercive enforcement procedures likely affects how citizens regard the normativity of rules and orders. For example, some citizens might regard directions telling them how they ought to behave that are backed by sanctions as tainted or less-than-entirely sincere. Alternatively, some citizens might regard the law's willingness to coercively back up its rules and orders as evidence that lawmakers really believe citizens ought to do what the rules and orders require.
93. ICF Spry, Equitable Remedies (6th edn, Sweet and Maxwell, Sydney 2001) 371.
94. 'They [imprisonment and sequestration] are used primarily to compel obedience rather than to punish disobedience': Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 496-97. See generally, Spry ibid, 369-73.
95. For convenience, I focus exclusively on private law rules in this and the following sections, but my comments generally also apply to orders.
96. 'Primary' because they arise from a non-wrong, such as the non-wrong of making a contract or receiving money by mistake. 'Secondary' obligations arise from the breach of primary obligations (monetary or non-monetary), the usual example being the secondary monetary obligation to pay damages as a consequence of having committed a tort or breach of contract. In the discussion that follows I will assume that secondary duties to pay damages arise at the moment of injury.
97. See eg Peter Huber, 'Mistaken Transfers and Profitable Infringement on Property Rights: An Economic Analysis' (1988) 49 La L Rev 71-109.
98. Wonnell (n 13) 796.
99. Utilitarian scholars have said little about monetary contractual obligations per se, but the general justifications given for enforcing contracts (eg to facilitate beneficial exchanges, to encourage beneficial reliance) apply straightforwardly to such obligations: see eg Charles J Goetz and Robert E Scott, 'Enforcing Promises: An Examination of the Basis of Contract' (1980) 89 Yale LJ 1261-322.
100. Michael J Trebilcock, The Limits of Freedom of Contract (Harvard University Press, Cambridge, MA 1993) ch 1.
101. Craswell (n 13).
102. The exceptions, which are rare, involve cases where the court finds a nuisance or an ongoing trespass, but then refuses to order the defendant to cease the nuisance or trespass, limiting relief to an order to pay compensatory or nominal damages: eg Boomer v Atlantic Cement (1970) 257 NE 2d 870 (NY Ct App).
103. The exceptions, which fall into the previous category, are the non-monetary contractual duties that are affirmed by specific performance orders or injunctions.
104. See eg Posner (n 13) 180-1.
105. See eg Robert L Birmingham, 'Breach of Contract, Damage Measures, and Economic Efficiency' (1970) 24 Rutgers L Rev 273-92.
106. Richard Craswell, 'Contract Remedies, Renegotiation, and the Theory of Efficient Breach' (1988) 61 S Cal L Rev 629-70.
107. Miceli, The Economic Approach (n 10) 128-33.
108. Posner (n 13) 146.
109. This observation applies to any explanation that assumes the law promotes efficient breaches of legal duties, contractual or otherwise, by permitting citizens to pay damages rather than perform. In practice, there are few such duties. Although economists sometimes describe all sanctions for non-performance as 'prices', the only major category of intentional breach whose sanction could realistically be regarded as a mere price is breach of contract, and of these only breaches of non-monetary contractual obligations. In nearly all other cases, an intentional breach will be sanctioned either by legal officials directly enforcing the duty (eg seizing assets for failing to pay a debt), by punishment via the ordinary criminal law (eg for intentionally injuring another) or via a contempt of court charge for failing to obey a court order (eg a court order not to trespass).
110. See eg Alan Schwartz, 'The Case for Specific Performance' (1979) 89 Yale LJ 271-306.
111. An important exception is the primary duty to reverse an unjust enrichment. As mentioned earlier, I assume in this section that the duty to pay damages generally arises at the moment of injury (although my substantive arguments do not depend on this assumption).
112. There are exceptions; see n 39. The argument presented below does not depend on when the duty arises, but only on the fact that it is a duty. It remains valid, therefore, if, contrary to the conventional assumption, duties to pay damages arise only once orders are made.
113. 'Usually' because one way that utilitarians might justify at least some legal prohibitions is that the prohibited acts have the immediate and direct effect of decreasing overall welfare. Thus, it could be argued that intentionally injuring others should be prohibited regardless of its effect on future behaviour because intentional injuries typically cause more harm to the victim than whatever benefit the injurer receives.
114. An apparent recent exception is Schauer (n 5) ('apparent' because for the most part Schauer accepts the critics' objections). Schauer begins by noting that one of the few axioms in modern jurisprudence is that 'Hart's critique of John Austin's brand of legal positivism was conclusive' (1).