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.

Chapter 3 expands on the moral deficit introduced in Chapter 2, engaging the principle of proportionality to show how the dominant account of rational agency leads to the disproportionate delivery of desert in two ways: by maintaining an overly narrow basis of the desert calculus, and by failing to recognise degrees of moral blameworthiness. It draws on key findings from social psychology to understand the lag between doctrinal expectation and the reality of human behaviour, and to show how proportionality can be reinvigorated at culpability evaluation by aligning it with a clear social justice objective. Applying the Real Person Approach (RPA), the moral deficit is exposed as a failure to recognise inherent and situational vulnerabilities, and a recognitive doctrinal response is offered as a means of legitimising the Universal Partial Defence. The chapter also reconciles the RPA with retributivism, as the hegemonic approach to culpability evaluation.

Following a two-decade long conversation, the Criminal Justice Act of 1991 introduced a system of income-related fines in England and Wales, known as ‘unit fines’. This system turned out to be remarkably short-lived. The practical difficulties that surrounded its operation, alongside intense criticism from parts of the media, led not its reform, but instead to its abrupt abolition a few months later. This Chapter begins by discussing the policy rationales that underpinned the adoption of ‘unit fines’ in England and Wales, before taking a closer look into the statutory framework. Then, it explores the reasons why this fining system failed to take roots in England and Wales, by looking at the challenges that followed its implementation. These challenges, coupled with the magistrates’ perception that this system was too rigid, and the growing discontent from parts of the press, led to its rapid demise. Since then, policymakers have considered the possibility of re-introducing income-related fines a number of times, but the idea was never embraced. Unit fines have instead been replaced by a system that sits in the middle of the spectrum between fixed and day fines.

This chapter considers the practical implications of free will skepticism and discusses recent empirical work that has just begun to investigate the matter. It argues that there are good philosophical and empirical reasons for thinking that belief in free will, rather than providing the pragmatic benefits many claim, actually has a dark side; i.e., it is too often used to justify punitive excess in criminal justice, to encourage treating people in severe and demeaning ways, and to excuse and perpetuate social and economic inequalities. After addressing recent empirical findings in social psychology that purport to show that diminishing one’s belief in free will increases antisocial behavior – findings that are overblown and questionable – the chapter discusses contrary findings in moral and political psychology that reveal interesting and troubling correlations between people’s free will beliefs and their other moral, religious, and political beliefs. It concludes that we would be better off without the notions of free will and just deserts.

Recent free will denialism (FWD) tends to be optimistic, claiming that not only will the rejection of the belief in free will and moral responsibility not make matters dreadful but that we are indeed better off without them. I address the denialist claim that FWD has the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment, even without belief in free will, moral responsibility, and desert. I raise seven reasons for doubt concerning the ability of FWD to maintain deontological constraints. Together they present a strong case for doubting the optimism of FWD.