Book Review - Bant, Courtney, Goudkamp & Paterson (eds), Punishment and Private Law (Hart, 2021) (original) (raw)
Related papers
Comparative Reflections on Punishment in Tort Law
Marco Cappelletti, ‘Comparative Reflections on Punishment in Tort Law’ in J-S Borghetti and S Whittaker (eds), French Civil Liability in Comparative Perspective (Hart Publishing), 2019
This work explores and compares the treatment that the idea of punishing civil wrongs receives in the American, English, and French laws of torts. For this purpose, the chapter considers only tort remedies that pursue punishment as their fundamental goal, namely U.S. punitive damages, English exemplary damages, and the French amende civile as envisaged in the current reform project of tort law. The chapter shows that punishment is understood in two different ways across the three systems. One approach sees it instrumentally as a device geared towards the achievement of societal goals such as deterrence or retribution in the interests of society. On a second approach, punishment is seen as rooted in ideas of interpersonal justice in that it promotes private interests by, for example, empowering the victim of a wrong to take her revenge against the tortfeasor. While both the instrumental and interpersonal conceptions of punishment appear in each of the three systems considered, they do so to differing extents and they are seen more or less favourably depending on the way in which tort law is conceived of. In the United States, the debate as to whether tort law should punish is characterised by a clash between instrumentalist theories and theories of interpersonal justice. This conflict is part of a wider clash between different ways of theorising about tort law. The instrumental conception of punishment reflects a more general conception of tort law as an instrument of socio-economic policy. The interpersonal conception is instead consistent with broader theories that see tort law as focusing on the reciprocal rights and duties of the parties. Quite differently, in English law there is a disconnection between the way in which most legal actors view the tort system and the dominant conception of punishment. On the one hand, tort law is widely portrayed as a system of interpersonal justice, in which tort obligations must be justified with reference to the relationship between claimant and defendant. On the other hand, punishment is mostly understood instrumentally, and exemplary damages are depicted as a device that, at times, may attain societal goals such as deterrence. Clashing with an interpersonal vision of English law, exemplary damages are seen as anomalous or as requiring careful confinement. The position of French legal actors differs again. Resembling the English position, punishment is overwhelmingly seen as serving societal goals. This understanding of punishment is fully consistent with the markedly instrumental character of French tort law. Nevertheless, a potent legacy of interpersonal/corrective justice, the principle of full compensation, plays a key role in French law and limits substantially the options available when crafting punitive measures, eg by barring any solution resulting in a windfall to the claimant. The chapter concludes that the treatment reserved to punitive measures in tort varies depending on which conception of punishment, instrumental or interpersonal, is embraced and on how this conception relates to broader ways of seeing and theorising about tort law and its functions.
Method and Morality in the New Private Law of Torts
The just-christened New Private Law is especially intriguing, for it self-consciously aspires to draw insight from both instrumentalism and formalism. In his ambitious and illuminating "Palsgraf, Punitive Damages, and Preemption," for example, Benjamin Zipursky could not be any more forthright in combining instrumentalist and formalist themes. On his view, the New Private Law’s methodology is sensitive to both the functions and the concepts internal to law. Thus the New Private Law promises to be the elusive third way. And in Zipursky’s hands, it seems to me, the New Private Law of Torts makes good on that promise, offering a sound approach to the adjudication of vexing questions at the frontier of tort law. But Zipursky nevertheless falters in eschewing consideration of the approach’s moral foundations. In addition to explicating just what a commitment to the New Private Law of Torts comes to, then, it is the aim of this essay to assess where normative and specifically mo...
The Rise and Fall of Private Law Theory
Law Quarterly Review, 2018
Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse “grand theories” is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be re...
Private Law Remedies and Procedures: A Double-Edged Sword?
2010
The complexity of the issue of global reach of private law remedies and procedures is evident in the light of the diverse studies assembled in this collection. Several factors are at play, moral, political, social, cultural and economic. Even this classification of the issues itself is arguably controversial. To make sense of the enormous amount of development in this field and prepare for the future, certain pointers of strategy, for active participants as well commentators and other bystanders, are necessary. Any reflection on the law and legal evolution, even more importantly in a context of multi-layered transnational evolution such the one under consideration, must start by being firmly grounded in reality. The following, it is submitted, are important questions that the present realities of the global reach of private law remedies and procedures pose:
Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law (and its various departments, namely, property, contract, torts, and unjust enrichment). Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is overdrawn. I argue that it does not succeed in identifying private law's precise nature.
The humanity of private law: Part I Explanation
Jurisprudence, 2019
Nicholas McBride's The Humanity of Private Law: Part I. Explanation is, in many ways, a ground-breaking work in private law theory. The book makes highly ambitious claims about the nature of private law, human flourishing and Western liberal societiessomething rather unusual in contemporary legal theory, in which we have grown accustomed to a more piecemeal approach to legal phenomenaand substantiates those claims with arguments taken from English private law, history and philosophy. McBride does not shy away from discussing highly contested issues such as the true nature of morality, 1 the history of English private law, 2 or even fairly abstruse topics such as the metaphysics of Being and 'the implications of an undifferentiated noumenal reality for a Kantian right to independence'. 3 As one would expect with a wide-ranging book such as this, some readers might feel a bit disappointed with the length and depth in which some of the issues are addressed, and some readers might find that some of the arguments are not particularly well crafted. Its shortcomings notwithstanding, McBride's book is an original and welcome addition to the literature on private law theory that deserves to be widely discussed by philosophers of private law, even by those not particularly interested in English private law.
The Jurisprudence of Punishment
William and Mary Law Review, 2007
N. Cardozo School of Law. I wish to thank Scott Shapiro and Benjamin Zipursky for their comments on earlier drafts. The mistakes that remain are my own.
Introduction: Beyond the State? Rethinking Private Law
2008
ference and the closed workshop showed how varied the approaches and focuses, even the concepts and terms, are in the debate. Much translation was necessary; much learning was achieved. This issue presents the results of this conference and aims at instigating further learning. It brings together the papers presented as revised by the participants after the conference. We hope that this collection can spur further interest in the kind of international and interdisciplinary research that would seem adequate for a private law beyond the state.
Criminal Law and Philosophy, 2021
Many seem to find it hard to imagine a modern state and individual rights without criminal punishment, in this way giving exceptional status to the criminal law. Two key aspects of the modern state seem particularly dependent on the state’s ability to punish: keeping the monopoly of violence by preventing informal justice and realizing individual rights. However, as I will suggest in this short essay, it seems that often when we envision the costs of a state without punishment what we are really doing is stripping the state of its more general capacity to resort to force in order to compel obedience or realize rights. A closer look into the ways in which the criminal law helps secure the state’s monopoly over violence and individual rights suggests that the criminal law is not as necessary or unavoidable as many might think for the constitution and promotion of these important aspects of the state.