- Published: November 22, 2012
When people hear stories about criminal activities (or about unfairness in general -- whether disparities in health, businessmen taking advantage of others, kids not sharing toys on a play date), people generally have a good intuitive sense of justice. This is despite common knowledge about justice intuitions, which claims that people's intuitions are too vague to be reliable and that there are too many disagreements about what constitutes deserved punishment.
In reality, this intuitive sense of justice is shared amazingly consistently across cultures and across demographics with regard to the central harms that criminal law focuses on: physical aggression, taking without consent, and deception in transactions. Specifically, a number of empirical studies show shared intuitions (1) regarding nuances in punishments assigned depending on the given facts, (2) that serious wrongdoing should be punished, and (3) about the relative blameworthiness of various crimes. In fact, in one study, subjects rank-ordered 24 crime scenario descriptions by the amount of punishment deserved -- and yet subjects displayed an astonishing level of agreement.
This observation on the shared intuitions of justice is backed up by data on the anatomical and functional specialization of brain parts. A great deal of interaction exists between the cold and hot judgment areas -- the rational/logical part of the brain which decides culpability/responsibility (dorsolateral) and the emotive part of the brain which assigns amount of punishment (ventromedial/orbitofrontal).
As we continue studying neuroscience, parsing out relationships between brain areas, internal attitudes, and outward behavior, we gain a better understanding of where our innate sense of justice comes from: that certain behaviors are wrong, and that they deserve some sort of consequence backed up by the criminal courts.
Jones, Owen D. and Kurzban, Robert, Intuitions of Punishment (April 19, 2010). Chicago Law Review, Vol. 77, p. 1633, 2010; Vanderbilt Public Law Research Paper No. 10-18. Available at SSRN: http://ssrn.com/abstract=1592413
Robinson, Paul H., Kurzban, Robert and Jones, Owen D., The Origins of Shared Intuitions of Justice. Vanderbilt Law Review, Vol. 60, p. 1633, 2007; University of Pennsylvania Law School, Public Law Research Paper No. 06-47; Vanderbilt Public Law Research Paper No. 08-07. Available at SSRN: http://ssrn.com/abstract=952726