Restitution and Property Rites: Reason and Ritual in the Law of Proprietary Remedies

Abstract

In recent years restitution scholars have expended considerable energy in attempting to reveal the logical structure of the law of proprietary remedies. That project advances on the assumption that the strange rhetoric that pervades this area of law can be stripped away to reveal restitutionary principles. However, the doctrines in question have proved resistant to such endeavors. An appreciation of why this is so requires recognition of the very real anxiety generated by the judicial readjustment of property rights that takes place in this area of law. The use of metaphors, fictions and evidential presumptions that characterizes the law tracing, subrogation and the provision of proprietary relief for wrongs serves to assuage this anxiety by manufacturing the appearance that these remedies are perfectly conventional instances of the enforcement of pre-existing property or consensual transfers of property. However, these property rites have a logic of their own - a logic that influences and constrains the development of the law of proprietary remedies and makes it impossible to neatly reduce this field to a set of restitutionary principles. This is illustrated by the work of Professor Peter Birks, which represents the most comprehensive attempt to cut away the abstruse rhetoric found in this area and reveal the restitutionary substructure of the law of proprietary remedies and makes it impossible to neatly reduce this field to a set of restitutionary principles. This is illustrated by the work of Professor Peter Birks, which represents the most comprehensive attempt to cut away the substructure of the law of proprietary remedies. In Birks' work this process has merely resulted in old metaphors being replaced with new ones. Ultimately, we must accept that if re are to rationalize this area we must be prepared to engage directly with the policy issues that arise in this context.