Legal Nature and Functions of Damage Reparation: Sanction-based and Duty-based Understanding

Abstract

In contemporary legal theory, damage reparation is, by its legal nature, widely believed to be a form of sanction. This view can be dubbed the so-called sanction-based understanding of damage reparation. It has its source in the Roman law of delict and is greatly inspired by natural law writers, such as H. Grotius and S. Pufendorf. On the other hand, the underlying function of damage reparation is viewed as restitutive. However, by defining damage reparation as a sanction by its legal nature, damage reparation is being oriented towards injurers, while by defining its underlying function as restitutive, it is, prima facie, being oriented towards the injured party. The difference in orientation of damage reparation with regard to the determination of its legal nature and underlying function points to an inconsistency of the traditional jurisprudential explanation of damage reparation. Moreover, this difference is at odds with the principle of legal coordination as an essential feature of tort law relationships, which also makes the traditional jurisprudential explanation of damage reparation incoherent. Taking into account both the importance that functions have in providing justification for legal institutions and the principle of legal coordination as an essential feature of tort law relationships, one can infer that different orientations of damage reparation are the consequence of an inadequate sanction-based understanding of the legal nature of damage reparation. The sanction-based understanding is inadequate for several other important reasons as well. This calls for the refutation of the sanction-based understanding and the endorsement of a new viewpoint on the legal nature of damage reparation which would allow for a consistent and coherent theoretical explanation of the connection between the legal nature and underlying function of damage reparation. This view can be dubbed a duty- based understanding of damage reparation.