Title

A Common Lawyer’s Perspective on the European Perspective on Punitive Damages

This Faculty Working Paper has been updated and posted within the Faculty Scholarly Works Series. It is currently available here.

Abstract

Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heaviliy influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was comparatively easy for lawyers to convince judges that juries in tort cases should be allowed to punish defendants for egregious misconduct.