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This chapter drills deeply into the compelling reconstruction that equates the purpose of punitive damages with “retribution and deterrence.” It articulates a justificatory account of the retributive character of punitive damages that responds to the relational significance of the role the victim plays in expressing condemnation and to the importance of maintaining institutional modes of moral communication for value affirmation between the private parties involved in tortious situations. The main argument is that retribution in torts is relational. Relational Retribution offers a holistic account of retribution that recognizes the necessary interconnection between the reprehensible character of the defendant’s conduct as deserving of punishment and the rich correlative retributive motivations of the victim of seriously disrespectful actions seeking the imposition of the punitive award. This relational approach transcends the unilateral focus on the reprehensibility of the defendant’s behavior and the notion of “just deserts” for the imposition of a monetary sanction. Alternative motives for retribution such as “denunciation” and “value affirmation” often more accurately explain the victim’s resolve. Because of the centrality of proportionality in any retributive theory of punishment, the chapter ends by sketching out the principle of sanction proportionality under the framework of Relational Retribution.
Torts and Retribution is the first work of its kind to offer a comprehensive analytical retributive framework for punitive damages across legal jurisdictions. It expands the scope of tort theory by unchaining it from the canonically exclusive perspective of the defendant by integrating the long-overlooked perspective of victims of reprehensible wrongdoing seeking punitive awards. Its cross-disciplinary approach brings to tort theory insights from empirical research on social cognition and theoretical debates over the retributive justifications for the imposition of punishment under a conceptual framework coined Relational Retribution. This framework suits both the bilateral structure of tort law and the proactive role allocated to the victim in tort litigation. By recognizing the fundamental connection between the defendant and the plaintiff, Relational Retribution focuses both on punishment as the imposition of a deserved sanction and on the significance of the wrongdoing for the victims and their demand for denunciation and value affirmation.
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