Penal Purposes in the Law of Tort

Abstract

Compensation for damage done and restoration of the status quo ante are still tlle most important accredited principles for awarding damages in tort. For a legal system to follow these principles alone and to exclude all others from the determination of the kind and scope of tort liability is certainly conceivable. Theoretically, such a limitation may be desirable since it promotes clarity and is consonant with a strict separation of tort and criminal law.' But in the context of a comparative study, no such easy and consistent orientation of the law of torts can be assumed. In numerous legal systems, tort liability serves other objectives as wvell, objectives which supplement the two main ones, and which may sometimes even gain preponderance. Most prominent among these are (i) vindication of the law's authority by condemning the actor's conduct, particularly by punishing the tortfeasor, and (ii) prevention through deterrence and education of the wrongdoer. These objectives are closely linked with each other. They can be seen as different emphases of a single principle; namely, that private law should promote, besides compensation and restoration, the independently significant purpose of controlling unlawful conduct. The following observations constitute an attempt to discover, by comparing different legal systems, the extent to which the objectives of punishment and satisfaction, deterrence and education of the tortfeasor remain operative in modern tort law.