Compensation and Punishment in Tort Law

Abstract

"Risarcimento e sanzione" mirrors the clash between the two opposite views concerning the role of private actions in defense of the public good; it expresses the tension, in many Continental European jurisdictions, between the stated goal of fully compensating the wronged person and the often-dissimulated temptation of punishing the author of highly reprehensible actions. "Risarcimento e sanzione" seeks to re-assess the actual extension of these two souls of the law of torts, with a view to emancipating the realm of compensatory damages from the residual punitive traces which may endanger their insurability, while revitalizing the place and role of punitive civil sanctions as instruments of widespread oversight on the effectiveness of fundamental rights (through their 'private' enforcement), in the framework of a renovated, more person-oriented European Union law.

If the control over the effectiveness of fundamental human rights continues to be entrusted in the traditional, purely-compensatory machinery of private law, then the maximum result achievable in the civil process remains the compensation of the victims for the harm actually suffered (the sufficiency of which, especially with respect to intangible harm, is - to say the least - debatable). From such angle, judges have no evaluative power as to the actual degree of reprehensibility or culpability of the wrongdoer's conduct.

Generally, sanctions are irrational when they bear no relationship with the gravity of the offense: and it is so not only when sanctions are utterly excessive, but also in cases where - albeit necessary - for one reason or another they are not applicable. The book aims to shed light into the multiform intersection of tort law and criminal law, in Italy and beyond, preliminarily looking at the political choices underlying the clear-cut separation of "action privée" and "action publique" in the French Code of Crimes and Punishments of 1795 (and its repercussions on the ensuing tort litigation in Europe). It goes on to analyze the differentiated approaches to punitive damages in the United States (common law P.D., "qui tam actions", statutory damages), the evolution of the English law of exemplary and aggravated damages, the developments and the judicial responses in New Zealand and Australia. Moreover, of great importance is the "punitive" Quebec Charter of Fundamental Rights and Freedoms, which reveals that the issue of extra-compensatory civil sanctions (especially for violation of inviolable rights) cannot be deemed a prerogative of common law systems. The comparative study hence leads into Italian law, which most of the proposals are addressed to. The final chapters highlight the many civil sanctions provided for by currently-in-force statutes, showing in conclusion that the availability of extra-compensatory damages depends, by and large, on the "courage" of judges in enforcing those very rules and, above all, the principles governing the legal system.

Keywords: tort law, deterrence, punitive damages, aggravated damages, dommages intérêts punitifs, moral damages, non-economic damages, non-pecuniary, specific performance, abuse of prosecution, criminal law, private enforcement, private attorney general, fundamental human rights, ECHR, European Chart

JEL Classification: K00, K12, K13, K14, K22, K32, K33, K41, K42