371 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
371
Once again, one must appreciate the difficulty of reading a new and
open-ended diffuse-rights action into Article 2236. This construction, like
that of Articles 2214 and 2229 previously analyzed, would expand the scope
of the provision at issue beyond recognition and run up against the civil-
law tradition’s interdiction of any judicial deviation from precisely codified
language and of retroactive application of laws. Furthermore, it would tend
to render the other Civil-Code popular actions superfluous and ultimately
to undercut the codifiers’ overall approach, which consists in setting up a
series of tightly tailored diffuse actions, rather than a single far-reaching suit.
At each turn, the adjudicator might feel tempted to play loose with
the standard. She might have to remind herself that the latter embodies a
key civic guaranty, which calls for rigorous implementation. Therefore, a
tribunal should err on the side of preserving the proscription.
In sum, Ecuador, as well as other nations in the civil-lawworld, embraces
a broad prohibition on retroactivity. It specifically exempts adjective statutes.
Nevertheless, judges normally should construe this exemption narrowly in
order to avoid undermining the ban or the underlying principles.
C. Keeping Civil Punishment in Check
All in all, punitive damages have no basis in Latin American or in
Continental European law. Ecuador’s legal system, like its counterparts
in the civil-law tradition, does not provide for such a remedy. Of course,
scholars such as Argentine Ramón Daniel Pizarro propose opening up
to punitive damages under limited circumstances.
105
Still, Pizarro himself
typically recognizes the unavailability of this type of relief in Latin America
and Continental Europe.
106
In addition, an adjudicator could probably not
justify the imposition of punitive damages as an application of a principle of
universal law. Finally, she would likely not be able legitimately to reinterpret
such an award as involving moral damages because it would satisfy none of
the requirements for that kind of compensation.
Civil-law courts ordinarily may not grant punitive damages. In order
to disregard this ban on their own, they would have to set aside profoundly
ingrained principles, such as those that establish that codified law strictly
binds the judiciary. In fact, this restriction retarded the transition from
105
See
infra
notes 112-120 and accompanying text (exploring Pizarro’s cautious endorsement of a punitive role for civil legislation).
106
See infra
notes 112-120 and accompanying text (documenting that Pizarro regards punitive damages as generally
unavailable in the civil law tradition).