In a new study out of NYU, conducted in the lab of Professor Elizabeth Phelps, it seems that juries are more likely to punish wrong action than the victim. The victim, in what I would say is a counter-intuitive decision, is likelier to seek out alternative forms of discipline, more in line with the victim's conception of justice. The study's primary takeaway is that third parties, in this case juries, are provided with too narrow a rule set in order to determine proper discipline of a transgressor. In fact, the set with which the jury has to work with may fail Justice entirely.

According to co-author Jay Van Bavel, this study contradicts most of the findings on social punishment; juries and other third parties are more likely to conflate their own sense of justice with the victim's, leading to mostly contradictory forms of discipline. The experiments used in the study followed this line:

The study was based on a series of experiments that employed a variation of "the Ultimatum Game," a common method used in psychology and economic research that gauges how people respond to unfair monetary offers. In the first set of experiments, composed of more than 100 subjects, Player A proposes a division of a $10 pie with Player B, who can respond to the proposition in one of the following ways: accepting the proposal; punishing Player A by reducing that player's amount in a counteroffer; equally splitting the pie so that both players get half; compensating Player B so that Player B's payout matches Player A's payout; or reversing the proposed split — the severest form of punishment if Player A has originally proposed an unfair division.

The results from this experiment showed that Player B was most likely to choose the "compensate" option — rather than either of the "punishment" choices (punish or reverse) — even when Player A offered a highly unfair split of $9/$1.

What we can see in this showed that the secondary player would almost frequently choose to compensate the primary player, even when the primary player offered an inequitable division. A second experiment introduced an entirely new variable:

An additional experiment, however, yielded notably different outcomes. In it, a third party, Player C, observed the game waged by Players A and B. These participants were asked to make decisions on behalf of another player such that payoffs would be paid to Players A and B and not to themselves. In this experiment, Player C, when responding to unfair offers, selected "reverse" — the option that both compensates Player B and punishes Player A — significantly more often than Player Bs did for themselves. In other words, participants did not show preferences for punishing Player A when directly affected by a fairness violation (i.e., as a second party), but when observing a fairness violation targeted at another (i.e., as a third party), participants significantly increased their retributive responding.

Here, the observer views the primary player's actions as being so wrong that they must, in some way, adjudicate a more beneficial decision towards the secondary player. This is known as retributive justice and has been a common form of justice since the days of Hammurabi. Finally, the final experiments were performed with a greater sample set:

The researchers conducted a final series of experiments involving more than 500 participants who adopted, at various times, both the Player B role (personally affected) and the Player C role (acting on behalf of another player). As before, when subjects were in the Player B role, they showed strong preferences to "compensate" — even when Player A's offers became increasingly unfair (e.g., a 9/1 split).

Yet, when adopting the Player C role, participants changed their response, choosing to apply the harshest form of punishment to the transgressor, demonstrating that people respond differently depending on whether they have been directly affected by a fairness violation, or are observing another person. People show little desire to punish the transgressor when directly affected, however, when deciding to restore justice on behalf of another people become highly punitive, applying the harshest form of punishment.

Retributive justice is still very popular even though many innovations have allowed for our justice system to transform its methods of doling out justice. Other forms of justice which show promise include restorative justice, transformative justice (merely the extension of restorative justice to civil cases), and rehabilitation which is less a form of justice than it is a method by which we attempt to rehabilitate those who do not "fit" in society.


The primary problem with retributive justice is that it is not especially helpful, and as this study shows, does not always fall in line with a victims sense of what is right. Victims, as much as anyone else, tend to be more forgiving whilst those who sit as observers tend to be more punitive in dispensing their justice. We can look to many of the recent tragedies and the outrage they sparked (Ferguson, Trayvon Martin, Sandy Hook), and we can become introspective, turning the victims' mentalities into our own. What punishments are deserved, and what punishments are too harsh?

Justice, like most philosophical conceptions, is exceedingly murky and we do not necessarily know what Justice really is. We have a sense of what is just and moral, but that may not fall in line with the belief of others. Justice, as Foucault states in his debate with Chomsky:

If you like, I will be a little bit Nietzschean about this; in other words, it seems to me that the idea of justice in itself is an idea which in effect has been invented and put to work in different types of societies as an instrument of a certain political and economic power or as a weapon against that power. But it seems to me that, in any case, the notion of justice itself functions within a society of classes as a claim made by the oppressed class and as justification for it.

Justice is ambiguous, and yet still invented. For a concept we do not truly understand, we certainly have a lot of ideas about what it is. While I do not necessarily agree with Foucault on this matter, I cannot argue that Justice is nothing short of a powerful fabrication. In this way, what we are to call Justice makes it so that we must be as careful with how it is employed in our societies.


The study can be purchased here (unfortunately it is not available for free):…