Lawson v. Hoke9/9/2005
the foregoing conclusion by tracing the history and meaning of the remedies clause, from its origins in the Magna Carta to its inclusion in the Oregon Constitution. Id. at 94-115; see also Thomas R. Phillips, The Constitutional Right to a Remedy, 78 NYU L Rev 1309 (2003) (reviewing history of concept). Smothers focused on the ideas of Sir Edward Coke and Sir William Blackstone, because both Coke and Blackstone influenced the drafters of early American constitutions significantly. 332 Or at 94-99.
Coke expanded the laconic protections found in the Magna Carta --- "We will sell to no man, we will not deny or defer to any man either justice or right" --- into a workable concept of free access to the courts and justice. The assurance in the Magna Carta that the government would not sell, deny, or defer justice or right meant that, in Coke's words:
"* * * every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiastical, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay."
Smothers, 332 Or at 96-97 (quoting Edward Coke, The Second Part of the Institutes of the Laws of England 55 (1797). Based on that proposition, this court observed, "Coke asserted that the common law of England had come to guarantee every subject a legal remedy for injury to goods, lands, or person caused by any other subject." Id. at 97. Coke also emphasized that justice must be "plena, quia justitia non debet claudicare," which means that justice must be "full, for justice should not limp." Coke, Second Part of the Institutes at 55. That is the source, in our own state constitution, of the requirement that "justice shall be administered * * * completely." Or Const, Art I, ยง 10. Coke thus established the intellectual underpinnings of the modern constitutional protection of remedies for civil wrongs.
Blackstone later presented Coke's ideas within the philosophical context of eighteenth-century ideas regarding natural law. Blackstone located the right to a remedy squarely within the framework of what he termed absolute rights -- that is, rights of the individual that find their provenance in natural law:
"The rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. * * * By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it."
1 William Blackstone, Commentaries on the Laws of England 119 (1765) (emphasis in original). Absolute rights, thus understood, are individual liberties of the highest importance. Based on Blackstone's discussion, Smothers observed that, " o Blackstone, the guarantee of legal remedy for injury 'is what we mean properly, when we speak of the protection of the law.' Smothers, 332 Or at 99 (quoting William Blackstone, 1 Blackstone commentaries *56). Hence, the maxim of English law, Ubi jus, ibi remedium: 'for every right, there must be a remedy.'" Id. According to Smothers, the remedies clause reflects an absolute right.
Many states adopted remedies clauses in their own constitutions. Smothers, 3
Page 1 2 3 4 5 6 7 8 9 10 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|