from Part I - The Place of Punishment in Torts
Published online by Cambridge University Press: 09 August 2025
The perceived threat of punitive elements in tort law to the long-standing distinction between private and public law is so powerful that tort theorists have generally responded by depicting punishment as an anomaly. They have corseted punishment within tort law’s rectificatory framework, equated punishment with deterrence, and squeezed the victim’s standing to demand punishment into a legal power for private redress. This chapter takes a close look at these guarded reactions from tort theorists to the question of punishment and how they explain not only the scarcity of theoretical reflection on the place of retribution in tort law but, additionally, the unsuitability of those theoretical reconstructions for a productive delineation and justification for the punitive, compensatory, and deterrent dimensions of the law of torts. The chapter ultimately argues that this gap in tort theory should be addressed by seeking a place for punishment in tort law that is neither constrained by the traditional treatment of punishment as an “anomaly,” as “compensation,” nor as a corollary regulatory mechanism whose exclusive aim is “deterrence.”
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