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Punishment: Civil Style — A Comment

Published online by Cambridge University Press:  16 February 2016

Stephen Goldstein
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Extract

I am honoured and pleased to comment on the paper on “Punishment Civil Style” by my good friend Marc Galanter, with whose basic thesis I am in complete agreement. I would take as my starting point and, indeed, emphasize, Galanter's definition of punishment as the “imposition of a harm, injury, deprivation or other bad thing on someone on the ground of some commission of some offence. The infliction of harm on the offender may be viewed as a goal (or a proximate to a goal of justice) or it may be viewed instrumentally as a mean to social betterment through rehabilitation, incapacitation, deterrence, reassurance, and so forth”.

Galanter well points out that, as such, punishment is not limited to the criminal justice system, but is employed also in other societal systems, including that of civil justice.

Yet, I fear that he may mislead us in focusing in his paper so heavily on punitive damages, which he maintains “are the most visible and clearly legitimated manifestation” of the principle of “civil punishment”.

Type
Alternatives to Punishment
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 779 - 791
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 Galanter, M., “Punishment: Civil Style”, in this issue, at p. 759Google Scholar.

2 Ibid., at 759.

3 Thus, for example, under Israeli law this civil concept power may not be employed if it is not possible to perform the order in the future because, for example, the order has already been rescinded, or it has already been performed, or the situation has developed so that it can no longer be performed, at least substantially. See, e.g., Witko Chemicals Ltd. v. Solomon (1979) 33 (iii) P.D. 101; Shmadr Lfts., Ltd. v. Ben-Tzvi (1984) 38(i) P.D. 136. For a discussion of this and other aspects of civil contempt as they are reflected in Israeli law, see, generally, Goldstein, S., “Executions of Judgments and Means of Enforcement Available to Ordinary Courts”, in Goldstein, S., ed., Israeli Reports to the Twelfth International Congress of Comparative Law (Jerusalem, 1986) 150, at 192–196Google Scholar.

4 Goldstein, ibid., at 194, n. 46.

5 See Witko Chemicals Ltd. v. Solomon, supra n. 3.

6 Drayton, , The Laws of Palestine (1933) vol. 1, chap. 23, p. 356Google Scholar.

7 L.S.I., Special Volume, 1977.

8 See Tzskala v. State of Israel (1972) 26(i) P.D. 350; see also, S. Goldstein, supra n. 3, at 193, n. 44.

9 Tzskala v. State of Israel, supra n. 8, at 354-355.

10 Witko Chemicals Ltd. v. Solomon, supra n. 3.

11 Compare Jacob, J. I. H., The Fabric of English Justice (London, 1987) 206–209Google Scholar.

12 See Goldstein, S., “Reflections on the Possibilities and Problems of Accelerating the Civil Litigation Process” (1985–1986) T.A.U. Studies in Law 50Google Scholar.

13 See Gottwald, P., “Simplified Civil Procedure in West Germany” (1983) 31 Am. J. of Comp. L. 687CrossRefGoogle Scholar.

14 S. Goldstein, supra n. 12, at 59-66.

15 See, e.g., Garth, B. G., “Privatization and the New Formalism: Making the Courts Safe for Bureaucracy” (1988) 13 Law and Social Inquiry 157, at 165CrossRefGoogle Scholar.

16 See, e.g., Atiyah v. Cohen (1968) 22 P.D. 86; Bank Hapoalim v. The Estate of Bachia (1966) 20 (iv) P.D. 169.

17 See, e.g., Barsheshet v. Haushaush (1981) 35(i) P.D. 281; Alkaim v. Huberman (1981) 35 (iv) P.D. 416; Hollander v. Hod Avaz (1981) 35 (iv) P.D. 433.

18 See Hollander v. Hod Avaz, supra n. 17, at 435.

19 Rikvitz v. Tax Assessor (1964) 18(iv) P.D. 729.

20 See generally, P. Gottwald, supra n. 13, at 699; S. Goldstein, supra n. 12, at 62.

21 See Goldstein, S., “The Influence of Constitutional Principles on Civil Procedure in Israel” (1982) 17 Is.L.R. 467, at 496–497Google Scholar.

22 See, e.g., Model Co. for Mechanical Engineering v. Imco Industrial and Hydroengineering, (1983) 37(i) P.D. 211; Atiyah v. Cohen, supra n. 16; Bank Hapoalim v. The Estate of Bachia, supra n. 16.

23 Model Co. for Mechanical Engineering v. Imco Industrial and Hydroengineering, supra n. 22; Chanukah v. Wolfson (1983) 37(i) P.D. 223.

24 See cases cited n. 22 supra.

25 See Harvest v. Rinsky (1984) 38(i) P.D. 167; see also cases cited n. 17 supra. It should also be noted that the Supreme Court has also held that a winning plaintiff may be denied interest or cost of living differentials that would otherwise be added to the sum awarded him on the grounds that he has unduly prolonged the litigation, Hollander v. Hod Avaz, supra n. 17; Shaul v. Mizrachi (1976) 30(i) P.D. 553. See generally Goldstein, S., “La Protezione del valore delle controversie in periodi di inflazione (Analisi basata sull' esperieza israelana)” (1985) 39 Rivista Trimestrale di Diritto e Procedura Civile 733, at 743–745Google Scholar.

26 See S. Goldstein, supra n. 12, at 65; Zylbertal, Z., “Costs Awarded to the State” (1986) 15 Mishpatim 389Google Scholar.

27 The literature on this topic is very extensive. For leading general discussions on the topic, see Cappalletti, M., “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study” (1975) 73 Mich. L. R. 793CrossRefGoogle Scholar; Cappalletti, M. & Garth, B., “The Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation”, in Habscheid, W. J., ed., Effectiveness of Judicial Protection and Constitutional Order (Bielefeld, 1984) 117Google Scholar. See also Goldstein, S., “La Protezione degli interessi diffusi nel diritto processuale civile israeliano” (1984) 38 Rivista Trimestrale di Diritto e Procedura Civi e 1220Google Scholar.

28 The lack of compensatory purpose in class actions is most evident in what has been termed the “fluid recovery” class action. In this type of class action due to the large number of potential claimants and the extremely small monetary value of the individual claims, it is not expected that the bulk of the recovery will directly compensate damaged claimants, but rather that it will be used in some other fashion by a kind of cy. pres. Moreover, the amount paid by the defendant will be determined not by the individual claims proved, but by the total amount of unlawful income he has received, which can generally be determined by the records of the defendant. It is clear that the twin purposes of such fluid recovery class actions are deterrence and compelling offenders to disgorge unlawful profits, not compensation. In other class actions that involve a smaller number of claimants with relatively large individual claims, it is expected that almost all, if not all, of the sums that the defendant is compelled to pay will go to injured claimants and that the total amount of the defendant's payments will not exceed by much, if at all, the total amount of the claims proved. This type of class action clearly has a not insignificant compensatory element. Yet even here the primary justification given for allowing such actions is deterrence — both general and specific — not compensation. See, generally, sources cited n. 27 supra; see also J. I. H. Jacob, supra n. 11, at 81-82.

29 The view of this process as “privatization” of law enforcement is, of course, based on the law enforcement perspective. From another perspective, i.e., that which views the civil litigation process as one that has traditionally been concerned with the resolution of private disputes and not with law enforcement, this process can be viewed as the “publicization” of the civil justice process. See B. G. Garth, supra n. 15.