Punitive Damages: Reorienting the Debate in Civil Law Systems

Abstract

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.