Punitive Damages: Reorienting the Debate in Civil Law Systems
Abstract
Scholarly debates in a number of Latin American and European countries have recently focused on the legal institution of punitive damages. These debates have been primarily influenced by the Anglo-American experience with the institution. The dominance of an outcome-driven, interpretive approach to an inherently complex and contradictory practice in the prevailing Anglo-American scholarship on punitive damages, however, has seriously affected and likely distorted the comparative and normative scholarly debates over the introduction of the institution in countries that follow the civil law tradition. In this article, I argue that, in order to participate more meaningfully in the punitive damages debate, civil law scholars should, on one hand, refrain from attempts to improve the understanding of the Anglo-American practice while offering country-specific assessments of the authors’ own legal system’s (in)compatibilities with the institution; and, on the other hand, actively engage in thorough discussions regarding the fundamental theoretical grounding of the place of punishment in modern private law. The novelty of this scholarly approach will require private law scholars to acknowledge both the punitive elements currently hidden yet nonetheless patent in domestic private law practices of awarding damages and the constraining effect of the pervasively proclaimed yet easily disputable clear-cut line between private and public law.
© 2019 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Frontmatter
- Article
- Post-Mortal Protection of the Right to Reputation – A Comparative View
- Trespass to the Person, Human Rights and Ethically Contaminated Food: Freedom of Belief and Bodily Autonomy
- Punitive Damages: Reorienting the Debate in Civil Law Systems
- Book Review
- Simon Baughen, Human Rights and Corporate Wrongs. Closing the Governance Gap (Edward Elgar Publishing, 2015). xxviii + 271 pp. ISBN 9780857934765. (hardback)
- Paula Giliker (ed), Research Handbook on EU Tort Law (Edward Elgar Publishing, 2017). xxxii + 480 pp. ISBN 978 1 78536 571 3. £ 135 (hardback)
- Bénédict Winiger, Responsibility, Restoration and Fault (Intersentia 2018). xiv + 154 pp. ISBN 9781780684765. €49 (paperback)
Articles in the same Issue
- Frontmatter
- Frontmatter
- Article
- Post-Mortal Protection of the Right to Reputation – A Comparative View
- Trespass to the Person, Human Rights and Ethically Contaminated Food: Freedom of Belief and Bodily Autonomy
- Punitive Damages: Reorienting the Debate in Civil Law Systems
- Book Review
- Simon Baughen, Human Rights and Corporate Wrongs. Closing the Governance Gap (Edward Elgar Publishing, 2015). xxviii + 271 pp. ISBN 9780857934765. (hardback)
- Paula Giliker (ed), Research Handbook on EU Tort Law (Edward Elgar Publishing, 2017). xxxii + 480 pp. ISBN 978 1 78536 571 3. £ 135 (hardback)
- Bénédict Winiger, Responsibility, Restoration and Fault (Intersentia 2018). xiv + 154 pp. ISBN 9781780684765. €49 (paperback)
