The Roots of Punitive Damages at Common Law: A Longer History

This Article aims to revisit the historical development of the doctrine of exemplary or punitive damages. Punitive damages are anomalous in that they lie in both tort and crime, a matter that has led to much criticism by modern commentators. Yet, a definitive history of punitive damages does not exist to explain this anomaly. The main contribution of this Article, then, is to begin such a history by way of a meta-narrative. It identifies and links the historically significant moments that led to punitive damages, beginning with the background period of classical Roman law, its renewed reception in Western Europe in the twelfth and thirteenth centuries that coincided with the emergence of the English common law, the English statutes of the late thirteenth century, to the court cases of Wilkes v. Wood and Huckle v. Money in the eighteenth century that heralded the first explicit articulation of the legal principle of punitive damages. This Article argues that this history is not linear in nature but historically contingent. This is a corrective to present scholarship, which fails to adequately connect or contextualize these historical moments, or over-simplifies this development over time