This chapter offers a fresh reconstruction of the (legal) power to act punitively in torts that is respectful of the wrongdoer–victim perspective and, more particularly, to the substantive content of the victim’s punitive responses to categories of reprehensible wrongdoing. It challenges the assumption that criminal law and the criminal procedure are the exclusively valid institutional venues for the imposition of punishment by suggesting that Relational Retribution be a viable and valuable mode of institutional moral communication between the private parties that is proper of the role of the victim in tort law and its bilateral structure. It recognizes the special position of the victim herself to personally provide sufficient reasons for the court to exercise its power and impose a punitive sanction on the reprehensible wrongdoer. Ultimately, the idea underlying this chapter is that, if we care about individuals’ ability to engage meaningfully with their peers, we should ensure the availability of legitimate, official channels for institutional expression, one that tort lawsuits provide.

This chapter charts out an approach to punitive damages based on empirical research that reveals the lay intuitions behind the actual motivations that drive people to punish certain behaviors. Taking the behavior and decision-making literatures as the starting point for inquiry, the chapter demonstrates that the retributive aspect of punitive damages aligns with individuals’ moral intuitions regarding punishment more closely than with deterrence. The chapter argues that a more meaningful understanding of punitive damages is available from considering the value-laden lay intuitions that drive people to punish certain behaviors through tort law. The social psychology literature on human actors’ motivations for punishment offers valuable insight into two powerful cognitive motivations, moral outrage and betrayal aversion, which explain many of our intuitive reactions to punish those who wrong us in a reprehensible fashion. Together, these retributive motivations comprise a significant, as yet missing element in the predominant understanding of punitive damages. To tackle the understandable concern that retributive motivations are traditionally viewed as an affront to legal rationality, this chapter ends by addressing the criticism that retributivism is essentially irrational. It argues instead that moral outrage and betrayal aversion represent contextual retributive motivations that do obey some rationale.