Punishment in private law - no such thing (any more)

Published on Jun 17, 2021in Social Science Research Network
Kit Barker5
Estimated H-index: 5
(UQ: University of Queensland)
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Abstract
This chapter asks whether there is still any such thing as punishment in private law any more. In doing so, it examines the meaning(s) and purposes of the idea of punishment; and the history, meaning and purposes of private law. It concludes that punishment, properly understood as a judicial act and aim in its own right (and not just as an effect of other judicial acts), should be understood narrowly as an act of retributive justice and reprisal. Whilst this idea did indeed feature in the history of private actions, it is not in use in this sense in modern private law any more, where the aims of 'punitive' or 'exemplary' damages are identifiably different. Whilst punishment (for better or worse) remains one aim of sentencing in the modern criminal law, it is not an aim that is instantiated in private law.
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