Law or rules can be defined and assessed in a variety of ways, but is more commonly known to us, the judiciary, “as the rules that society is bound to obey.” These so-called “rules” or laws include government-made rules called “legislation” and judge-made rules called “Common Law” that are respected and enforced by our governments and our courts. Whether we speak in terms of Civil or Common Law traditions, certain characteristics can generally be said to apply to each in a common manner. These characteristics describe laws as being general and impersonal, obligatory, coercive and non retroactive. We may attempt to summarize this notion by stating that law, no ...view middle of the document...
It is the idea that compensation should be equal to the actual and real prejudice suffered by the victim, thereby placing said victim in the exact state he or she was in prior to the occurrence.
The idea of integral compensation has begun to change as the development of what is called “punitive or exemplary damages” seems to challenge its very founding concept. Essentially, victims of a given prejudice have, in some occasions, become eligible to receive a supplementary sum of money, over and beyond what is needed to compensate for the damages. In Common and Civil courts alike, this meant that “the plaintiff, by given more than what could be justified as compensation, was being given a pure and undeserved windfall at the expense of the defendant, and that the defendant was being required to pay more than could be regarded as compensation, he was being subjected to pure punishment.” And like any modern development with loose guidelines, these exemplary damages not only came to challenge the very essence of our legal retribution system, it also became source of significant abuse. Our system has, over decades of legal reporting, witnessed an extravagant amount of frivolous law suits where juries have been overly sympathetic to undeserving plaintiffs suing large companies with “deep pockets.” It is the common perception, rooted deeply in our societal norms, that large is bad and small is good. General public attitudes have become less and less concerned with actual fault and more concerned with simply awarding money.
As we debate the very basis for this type of retribution, we must primarily ask ourselves if such “punishment” still serves a credible purpose. Moreover, we must also question the way exemplary damages are typically being awarded, keeping in mind that our legal system was founded on principles of fairness, equality and due process for all citizens and entities alike. Should we be pursuing a subjective approach, where the qualities and more importantly, the financial situation of the defendant will directly affect the amount of compensation awarded to the victim. Or, should we adopt an objective approach where reward is based solely on actual fault, regardless of the defendant’s power, prestige and economic flexibility.
To answer these questions, we must first look at the basic roots of punitive damages in both Common and Civil Law, the role a jury plays in awarding such compensation and the philosophical and legal merits of both the subjective and objective approach for the attribution of these exemplary damages.
SECTION 1: BRIEF OVERVIEW OF PUNITIVE DAMAGES IN COMMON AND CIVIL LAW
Since the beginning of the 17th century, many authors, such as Jean Domat and Robert Joseph Pothier, have categorically rejected the idea that punitive damages should be integrated into our civil and private legal systems. Many in fact argued that private law ought to pursue integral compensation leaving it exclusively to the criminal...