What the injured may compel, as against what the injuring may grant. A right with no remedy is not a right, and every substitute is issued by the party complained of.
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A remedy is what makes a right a right. Without one there is a statement of value, and a statement of value is answered by being agreed with.
Marbury v. Madison put it in the form the American courts inherited. Blackstone, quoted in the opinion: it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded. And a page earlier, Blackstone again: every right, when withheld, must have a remedy, and every injury its proper redress. Then the Court in its own voice: The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. The maxim behind all of it is older and shorter. Ubi jus, ibi remedium.
Read forwards it is a promise. Read backwards it is a test, and backwards is how it does work. Where no remedy runs, whatever was called a right was something else wearing the word.
[See STANDING · HOME RULE FOR THE SOUL]
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WHAT IS OFFERED INSTEAD
The room is rarely silent about the injury. It answers, and the answers have a shape.
Voice. She may say what happened, at length, to people who listen.
A seat. She is present where the matter is discussed.
Input. Her view is collected, recorded and considered.
A share. She receives part of what the thing produces.
Review. The decision will be looked at again, on a schedule, by the ones who made it.
Consultation. She is asked before it happens again.
None of these is a trick and none of them is nothing. What they have in common is not their size. It is their source. Every one is supplied by the party she is complaining of, out of that party's own discretion, and every one can be narrowed, rescheduled or withdrawn by the hand that offered it.
A thing the party complained of can withdraw is not a remedy. It is an accommodation, and its continuance is a report on their patience.
[See SEAT AT THE TABLE · LICENSED PRESENCE · PARTICIPATION · THE MENU OF BOOTS]
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THE TEST
Two questions, and neither requires knowing any law.
Who supplies it. If the answer is the party being complained of, what is on the table is relief and not remedy.
Can they withhold it. If they can, then what she holds is their forbearance, and forbearance is not a jurisdiction.
There is a third for the meeting where nothing has been offered yet. Ask whether any answer available to the question on the table could produce a no. If every available answer is a way of proceeding, no remedy is present, however carefully the question is answered.
A remedy is not a better outcome. It is the standing to require one, and the standing has to sit somewhere other than in the hands of the party who would have to give it.
[See DISCERNMENT · THE SMALLER QUESTION · MANUFACTURED CHOICE]
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DISPLACEMENT IS NOT THEFT, AND THE REMEDIES ARE NOT THE SAME
Theft assumes a proprietor and a thing carried off. The remedy is return, with compensation for the interval in which the owner was without it.
Displacement assumes a resident, and she is still in the dwelling. What has been taken is not the dwelling. It is the mode of occupation: she is operated around, planned over, and addressed as though the place were unoccupied.
So return is the wrong remedy and cannot be performed, because there is nowhere to bring her back from. What ends a displacement is the cessation of the operation performing it, and cessation is not a transfer, a grant or a settlement. When it stops she does not have to be restored. She was there the whole time.
[See THE PRIOR RESIDENT · CESSATION · RESIDENCY]
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WHEN ONE EXISTS, THIS IS WHAT IT LOOKS LIKE
The gas industry told New York towns that the drilling was coming either way. More than a hundred and seventy of them answered with bans or moratoriums, using the same zoning authority that decides where a quarry goes, and what they prohibited was a class of high-impact heavy-industrial use rather than an industry. The industry argued that the state had taken that authority away. On 30 June 2014, in Wallach v. Town of Dryden, the Court of Appeals held, 5 to 2, that it had not.
What those towns had was not a louder voice or a better seat. It was a jurisdiction that existed before the industry arrived and was never in the industry's gift to withdraw. The remedy was not granted at the table. It was held before anyone sat down, which is why it survived the party that wanted it gone.
[See WALLACH v. TOWN OF DRYDEN · PERPENDICULAR SOVEREIGNTY]
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The question travels further than the doctrine, and it sorts a room in one move. What is your remedy if you decline. Not your voice, your seat, your input or your share.
Voice and seat have gracious answers ready. Remedy has none, and the silence after it is the finding.
[See THE CAPACITY TO REFUSE · REFUSAL OF JURISDICTION]
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
