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.

Even though the three different judgments rendered in Kyoto Korean Elementary School – one criminal, by Kyoto District Criminal Court, and two civil, by Kyoto District Court and the Osaka High Court – are generally all perceived to be responses to the hate speech demonstrations that targeted the school, there is a significant difference between the three. This comparative analysis of the three judicial rulings offers important insights into how best victimization might be addressed through judicial responses. The reaction of the teachers and parents of the school exposes the limitations of a punitive approach in terms of restoring the trust of a victims in a majority Japanese community and a sense of inclusion within that community. While relationships are built over generations by shared understanding of the history of the minority Zainichi ethnic group in Japan, the punitive approach acts as a barrier to that understanding, undermining the trust so built. This chapter therefore suggests that the compensatory approach in tort, in line with the position of the Japanese Supreme Court, is likely to be more effective in remedying damage and restoring trust.