Intuitions of Justice: Implications for Criminal Law and Justice Policy

Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies. This Article explores the serious implications of this reality for criminal law and criminal policy. For example, it may be unrealistic to expect the government to “reeducate” people away from their unhealthy interest in punishing serious wrongdoing, as is urged by some reformers, for it seems unlikely that the shared intuition that serious wrongdoing should be punished can be changed through social engineering, at least not through methods short of coercive indoctrination that liberal democracies would find unacceptable. Second, a criminal justice system that adopts rules that predictably and regularly fail to do justice or that regularly do ∗ Colin S. Diver Professor of Law, University of Pennsylvania. The authors thank Robert Kurzban for his useful comments and Scott A. Kaplan for his valuable research assistance. † Dorman T. Warren Professor of Psychology, Princeton University. 2 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 81:1 injustice will inevitably be widely seen as failing in a mission thought important, even foundational, by the community, unless the system’s unjust operation can be hidden, something that would be hard to do without breaching notions of press freedom and government transparency to which liberal democracies aspire. Finally, an understanding of the nature of people’s intuitions of justice can provide more effective strategies for changing them. For example, it appears that legal and social reformers would do better not to fight people’s shared intuitions of justice, but rather to harness them in service of their reform programs.