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Intuitions of Justice: Implications for Criminal Law and Justice Policy

By Paul H Robinson and John M. Darley

Abstract

Recent social science research suggests that many if not most judgements 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 \u22reeducate\u22 people away from their unhealthy interest in punishing serious wrongdoing, as is urged by some reformer, 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 injustice, will inevitably be widely seen as failing in a mission thought important by the community, even foundational, unless the system\u27s 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\u27s 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\u27s shared intuitions of justice but rather to harness them in service of their reform programs. Available for download at http://ssrn.com/abstract=97602

Topics: criminal liability, criminal punishment, social engineering, coercive indoctrination, government transparency, justice reform, Criminal Law and Procedure, Criminal Law
Publisher: NELLCO Legal Scholarship Repository
Year: 2007
OAI identifier: oai:lsr.nellco.org:upenn_wps-1154
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