Comparative Reflections on Punishment in Tort Law

Abstract

This work explores and compares the treatment that the idea of punishing civil wrongs receives in the American, English, and French laws of torts. For this purpose, the chapter considers only tort remedies that pursue punishment as their fundamental goal, namely U.S. punitive damages, English exemplary damages, and the French amende civile as envisaged in the current reform project of tort law. The chapter shows that punishment is understood in two different ways across the three systems. One approach sees it instrumentally as a device geared towards the achievement of societal goals such as deterrence or retribution in the interests of society. On a second approach, punishment is seen as rooted in ideas of interpersonal justice in that it promotes private interests by, for example, empowering the victim of a wrong to take her revenge against the tortfeasor. While both the instrumental and interpersonal conceptions of punishment appear in each of the three systems considered, they do so to differing extents and they are seen more or less favourably depending on the way in which tort law is conceived of. In the United States, the debate as to whether tort law should punish is characterised by a clash between instrumentalist theories and theories of interpersonal justice. This conflict is part of a wider clash between different ways of theorising about tort law. The instrumental conception of punishment reflects a more general conception of tort law as an instrument of socio-economic policy. The interpersonal conception is instead consistent with broader theories that see tort law as focusing on the reciprocal rights and duties of the parties. Quite differently, in English law there is a disconnection between the way in which most legal actors view the tort system and the dominant conception of punishment. On the one hand, tort law is widely portrayed as a system of interpersonal justice, in which tort obligations must be justified with reference to the relationship between claimant and defendant. On the other hand, punishment is mostly understood instrumentally, and exemplary damages are depicted as a device that, at times, may attain societal goals such as deterrence. Clashing with an interpersonal vision of English law, exemplary damages are seen as anomalous or as requiring careful confinement. The position of French legal actors differs again. Resembling the English position, punishment is overwhelmingly seen as serving societal goals. This understanding of punishment is fully consistent with the markedly instrumental character of French tort law. Nevertheless, a potent legacy of interpersonal/corrective justice, the principle of full compensation, plays a key role in French law and limits substantially the options available when crafting punitive measures, eg by barring any solution resulting in a windfall to the claimant. The chapter concludes that the treatment reserved to punitive measures in tort varies depending on which conception of punishment, instrumental or interpersonal, is embraced and on how this conception relates to broader ways of seeing and theorising about tort law and its functions.