Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself – physical aggression, takings without consent, and deception in transactions – the shared intuitions are stunningly consistent, across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange – the cornerstones to cooperative action and its accompanying survival benefits. Recent studies in animal behavior and brain science are consistent with this hypothesis, suggesting that moral judgment-making not only has biological underpinnings, but also reflects the effects of evolutionary processes on the distinctly human mind. Similarly, the child development literature reveals predictable stages in the development of moral judgment within each individual, from infant through adult, that are universal across all demographics and cultures. The current evidence does not preclude alternative explanations entirely. Shared views of justice might arise, for example, through general social learning. However, a social learning explanation faces a variety of difficulties. It assumes individuals will adopt norms good for the group at the expense of self-interest. It assumes an undemonstrated human capacity to assess extremely complex issues, such as what will be an efficient norm. It predicts the existence of only differences in views of justice, to reflect the wide differences among groups, their situations, and cultures producing different efficient norms and different effectiveness in teaching the same. It is inconsistent with the developmental data that show intuitions of justice appearing early, before social learning of such complexity is possible, and that show identical intuitions arising at parallel times despite cultural differences that would affect social learning. And, finally, a general social learning explanation predicts views of justice as accessible, reasoned knowledge, rather than the inaccessible, intuitive knowledge that we know it commonly to be. Whatever the correct explanation for the consensus puzzle, intuitions of justice seem to be an inherent part of being human and this, in turn, can have important implications for criminal law and criminal justice policy. Available for download at http://ssrn.com/abstract=952726
Robinson, Paul H.; Kurzban, Robert O.; and Jones, Owen D., "The Origins of Shared Intuitions of Justice" (2007). Faculty Scholarship at Penn Law. 129.