The Dialectic of Punitive Compensation in Civil Law The Problem and the Possibility: A Comparative Critical Study of Philosophy and Rooting between the Anglo-Saxon and Latin Schools
Prof. Muhammad Irfan Al Khatib
Professor of Civil Law
Ahmed bin Mohammed Military College
Doha, Qatar
Abstract:
Following an in-depth comparative approach, this research paper displays the dialectic of punitive compensation in civil law by dealing with the idea and concept of this compensation in the Anglo-Saxon civil system and the possibility of its identification within the Latin civil system. In the first section of the paper, the problem raised by the legal application of this concept is addressed within the Latin School. Then, in its second section, it presents the possibility of legal adoption on the comparative and national “French” level. Each research section concludes with analysis and criticism. The research paper reaches the conclusion that, despite the problems that the adoption of these compensations may raise in the French legal system, the possibility of introducing them remains available and urgent. This requires that the French legislator adopts a bolder and more open legislative stance in order to reach legal harmony that will restore to the compensation institution its lost role in reparation and accountability for mistakes. It also encourages the legislator to achieve more rapprochement with the Anglo-Saxon system in this field, including the Canadian experience.
Accordingly, the paper recommends the necessity of reviewing the French legislator’s legal position regarding the general adoption of the concept of punitive compensation, according to a legal reading that restores to civil liability its lost normative role which looks at the error and at the person who is punished, in addition to looking at the injury and at whoever is accountable for it. This provides an effective, complete and non-diminishing legal treatment, and applies civil liability policies and rules to these compensations without adding any alternative role for criminal or administrative liability within it, hoping that the French legislator will, in the coming days, be firmer in clarifying his legal and authoritative position on whether to adopt these punitive compensations or not.
Keywords: civil punishment, normative role of civil liability, profitable mistake, civil fine, compensation and damage.