CHAPTER 8 THE HISTORICAL BASIS OF PUNITIVE DAMAGES

• Jurisdiction: United States
• Publication year: 2018

Early legal systems commonly awarded punitive damages, and they are allowed in religious law as early as the Book of Exodus. Other examples of these damages can be found in Babylonian law nearly 4000 years ago in the Code of Hammurabi, in the Hittite Laws of about 1400 B.C., in the Hebrew Covenant Code of Mosaic Law of about 1200 B.C., and in the Hindu Code of Manu of about 200 B.C.^[1]

The book of Exodus in the Old Testament provides:

If a man steals an ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and four sheep for a sheep. He shall make restitution; if he has nothing, then he shall be sold for his theft. If the stolen beast is found alive in his possession, whether it is an ox, or an ass, or a sheep, he shall pay double. ^{[ 2 ]}

The punitive damages remedy has a long history and was first articulated in England in a case of illegal entry. There, the court held that a jury was justified in going beyond "the small injury done to the plaintiff" because of the desirability of taking account of "a most daring public attack made upon the liberty of the subject" through entry and imprisonment pursuant to "a nameless warrant."^[3]

American courts emphasized the punishment purpose of punitive damages by the middle of the nineteenth century, as punitive damages became part of the tort regime For example, in Hawk v. Ridgway, 33 Ill. 473, 476 (1864), the court stated, "[w]here the wrong is wanton, or it is willful, the jury is authorized to give an amount of damages beyond the actual injury sustained as a punishment, and to preserve the public tranquility." Justice Scalia of the United States Supreme Court noted in a concurring opinion that, "In 1868, therefore, when the Fourteenth Amendment was adopted, punitive damages were undoubtedly an established part of American common law of torts."^[4]

At common law, the jury determined the amount of punitive damages. The trial judge conducted a limited review to determine whether the jury's verdict was the product of passion and prejudice, or whether the award was one that shocked the conscience. ^{[ 5 ]}

Historically, punitive damages were imposed to further a state's legitimate interests in punishing unlawful conduct and deterring its repetition.^[6] States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case.

Most states that authorize exemplary damages afford the jury similar

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