It is a fact of human nature that we tend to focus on conflict. Journalists and writers know this is their stock in trade, because without conflict there is no story, and nowhere is this more apparent than in discussions of right and wrong. Morality is the conflict-generator, and our sense of injustice is more than willing to weigh in on the legal implications following from these conflicts.
But what, exactly, is our sense of justice, and how is it to be explained?
According to Jonathan Haidt and Jesse Graham, our moral intuitions arise from the interplay between 5 core psychological responses. One of these relates to justice. Unfortunately, it is not quite clear what Haidt and Graham mean by justice, except that they associate it with fairness and rights.
- Jonathan Haidt & Jesse Graham. When morality opposes justice: Conservatives have moral intuitions that liberals may not recognize. Social Justice Research, Special Issue on Justice and Feeling. 20:1 (March 2007). (self-archived; published)
Contrast this with a pair of papers by Paul Robinson, Robert Kurzban, and Owen Jones, who have a narrow examination of justice that pertains to punishment. They argue we have shared intuitions about the justice of punishment, and these arise from evolutionary biology.
- Robinson, P., & Kurzban, R. (2007) Concordance and conflict in intuitions of justice. Minnesota Law Review, 91, 1829-1907.
- Robinson, Paul H., Kurzban, Robert and Jones, Owen D., “The Origins of Shared Intuitions of Justice” (December 18, 2006). University of Pennsylvania Law School, Public Law Working Paper No. 06-47. Available at SSRN: http://ssrn.com/abstract=952726. Available at NELLCO Legal Scholarship Repository: http://lsr.nellco.org/upenn/wps/papers/135. (To be published in the Vanderbilt Law Review.)
It seems to me that these authors are talking about two very different conceptions of justice. Intuitions regarding justice-about-punishment are not the same as the intuitions regarding justice-about-rights.
Unfortunately, it is difficult to reconcile these views, because it isn’t clear where intuitions about punishment (criminal or otherwise) should fit in Haidt and Graham’s schema. This is a strange problem – all the more so because intuitive demands for punishment are studied in Haidt’s early examinations of moral disgust – and it means we are left to wonder whether intuitions about punishment and moral responsibility belong in one of the existing 5 categories or in a supplementary 6th category.
For further reading:
- Carlsmith, Kevin, Darley, John M. and Robinson, Paul H., “Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment”. Journal of Personality and Social Psychology, Vol. 83, pp. 284-299, 2002 Available at SSRN: http://ssrn.com/abstract=678981.
- Baron, J. & Ritov, I. (1993). Intuitions about penalties and compensation in the context of tort law. Journal of Risk and Uncertainty, 7, 17-33. (pdf)
- Paul H. Robinson and John M. Darley. Intuitions of Justice: Implications for Criminal Law and Justice Policy.