Returning to Part II of the book, this chapter revisits the underlying metapsychology of victimhood. Exploring Freud’s account of mourning and melancholia, it considers the psychological need to mourn and the danger of melancholia. Mourning involves absorbing the loss of a loved identification and the need thereafter to return to an evolved sense of wholeness. This links it metapsychologically to guilt and the need to be at one again after violation. Melancholia is a way of internalising an external trauma and judging from it that one lacks worth. The case study is Patricio Guzmán’s film Nostalgia for the Light (2010) on the aftermath of Chile’s dictatorship (1973–90). The film focuses on women who search the Atacama Desert for remains of murdered family members or reflect on the loss of ‘disappeared’ parents. In a film that is the director’s own act of mourning, the women insist on their right to mourn and reject the state’s melancholia-inducing implication that their loss does not matter. The film’s metaphysical and aesthetic beauty places it on the victims’ side. ‘Nostalgia’ in its title reflects loving memory of the past as a means of anchoring engagement in the present rather than escaping it.

Mature retributivism from Chapters 7 and 8 involves a metaphysics and metapsychology of the animal that thinks and loves. Its moral psychology underpins deep or tendential penal abolition around five claims. First, mature retributivism is preferrable to punishment. It offers individual and social change rather than repetitive violence by means of a punitive response which fails to change behaviour. Second, vindictive, vindicative and validatory forms of state action are distinguished. Abolition delinks law’s morally vindicative power from punitive vindictiveness, aligning it with a broader moral validation. This allows perpetrators, victims and a community to deal with violation through reconciliation. Third, abolition involves dispositional and relational responsibility allowing the violator to own acts in a social setting rather than simply be blamed and punished for them. Fourth, while this looks unrealistic in the face of the ‘adverse experience’ (Kant 1993: 246) available in modern society around crime and punishment, it involves a real utopian argument based on real human ontology. Its underlying realism challenges proponents and critics to take seriously moral change and violation. It also suggests that the slogan ‘Abolition now!’ must distinguish an immanent truth from an imminent demand. Fifth, the violative and asymmetric relation between ‘a doer’ and a ‘done-to’ remains central to the abolitionist position requiring reconciliatory change at both individual and social levels.

The law and corpus linguistics movement shares many of the commitments of experimental jurisprudence. Both are concerned with testing intuitions about legal concepts through the lens of empirical evidence gathered through experimentation. Though often discussed in the context of a given case or legal problem, linguistic evidence from legal corpora can help provide content to otherwise indeterminate concepts in the law.

Using language evidence from linguistic corpora, we can begin to have more meaningful conversations about what concepts like ordinary meaning, ambiguity, and speech community might actually mean and make progress on the boundaries of these concepts and their implications for legal interpretation. And, because corpora are constructed from linguistic utterances made in natural linguistic settings, they can provide an important check and means of triangulation for experimental jurisprudence claims that are often premised on survey data.

The chapter starts with an impasse in criminal justice theory between liberal normative and critical historical accounts to consider a new way of developing critique. This is based on the idea of human beings as metaphysical animals, that is, animals capable of thought and love. Starting with Bernard Williams’s account of the ‘peculiar’ nature of modern ethics, a moral psychology based on a naturalistic understanding of what human beings are would be a better way of thinking about what it means to violate or be violated by another. Basing our understanding of violation on what it means to be human takes us to ontology and to ontological critique as a pivotal moment in a sequence of four critiques, moving from immanent to explanatory to ontological and then to emancipatory. This provides the possibility of a further ethically real/ institutionally critical (ERIC) position which brings together ontological naturalism, ethical realism and institutional critique. How love was identified as the immanent starting point for the argument is explained. The upshot of this fivefold form of critique is a move in the course of the book away from punishment and towards what I call a deep or tendential abolitionist position.

In this chapter we ask if people have rights to their social identities – in particular, their gender identities. We cash out what such gender identity rights entail by discussing the appropriate level of constitutional scrutiny to apply to laws that target transgender people.

This chapter discusses the promise and the pitfalls of conducting social psychological research on mock jurors. The tremendous potential of this methodology to shed light on the psychology of jury decision-making is only beginning to be tapped. We use two recent experiments on the psychology of character assessments as case studies to explore some of the necessary tradeoffs in this methodological design, and to showcase the importance of understanding the psychological underpinnings of our legal doctrines. However, future research must present more diverse stimuli that better reflect the racial and gender composition of parties in real trials. Recognizing how hard it can be to replicate complex psychological processes experimentally, we argue that in some cases we should switch the burden of proof – that is, near-universal psychological processes should be presumed to also occur in the courtroom.

A writer, a theorist, and an empiricist walk into a book. They muse about how the law might influence people’s moral intuitions. Their dialogue touches on recent studies exploring such an effect in moral dilemmas. As they ponder the possible feedback loop between law and morality, they also wonder: What might happen when people feel that a disfavored law – such as a ruling by a disfavored court – does not really count as law at all?

Modern theory of punishment generally conflates two questions. The first concerns the justification of state punishment, the second the moral–psychological damage that occurs when a person is violated. The first leads to political theory and a legally based account of wrongdoing and punishment. The second considers the moral–psychological nature of violation, grief and reconciliation. Hegel’s early theological writings provide a critical vantage point from which to view law and the dominant liberal theory of punishment, including his own ‘mature’ position as a founder of modern retributivism. Based on a metaphysics of love, he develops there his account of a perpetrator’s guilt and how a victim might deal with violation, finding a common ground in the grief both may feel. This early metaphysical ethics contrasts with the Philosophy of Right’s later rational, retributive, metaphysics of punishment. The chapter considers critically Axel Honneth’s approach and suggests that the early theological writings are worthy of more consideration than they are often given. This early work might be more mature in psychological terms than Hegel’s later legal and political theory, providing the basis for a critique of that theory that is ethically real and institutionally critical. This is a prototypical ERIC critique pointing towards penal abolition.

How may experimental jurisprudence contribute to legal questions or advance legal scholarship? This chapter provides a preliminary perspective from German criminal law with a focus on the specific legal practice of doctrinal reasoning (Rechtsdogmatik). It has not been in the focus of experimental jurisprudence, which is understood broadly as empirical studies with laypersons and experts about various legal questions. It overlaps with the classic field of psychology and law, but it is primarily interested in addressing normative aspects. German law is one of the main civil law systems, with firm roots in Roman law. German criminal law has noticeable influence on numerous legal systems throughout the world, from South America to Japan. The following thus hopes to promote the dialogue between these systems and between them and the common law jurisdictions.

In an 1870 essay, Oliver Wendell Holmes, Jr. made a series of penetrating observations about the common law that can still be profitably used by researchers in experimental jurisprudence today. First, Holmes observed that common law reasoning is a process in which judges decide the case before determining the principle on which that decision rests. Second, he suggested that this decision is typically fast, easy, and intuitive, while finding its rationale is often slow, difficult, and deliberate. Third, Holmes noted that this behavioral pattern applies not only to judges and lawyers, but to “other men,” that is, to human beings generally. Fourth, he observed that legal intuitions are often correct, whereas the reasons first offered to explain and justify them are often mistaken. Fifth, he suggested that common law reasoning can be modeled as a practical syllogism. Finally, Holmes implied that the common law is not a body of rules existing “outside the head” of those who discern and apply them, but a mental capacity or psychological entity of some sort. Each of these points anticipated key insights associated with strands of Legal Realism, and each offers valuable lessons for experimental jurisprudence.