Emotional Justice

-- By DanielKenkel - 16 Feb 2012

An increasing number of experiments in the fields of social psychology and economics are giving us greater and greater insight into how the human mind understands and implements the idea of fairness. Given the crucial (although perhaps ineffable) relationship between fairness and justice, it is natural that these experiments lead one to insights into the nature of justice in the legal system, and raise questions as to whether the legal system actually serves the goal of justice it set out to.

The Experiments

“The Private Rejection of Unfair Offers and Emotional Commitment”

At the center of this experiment is a simple economic game. One participant (the proposer) is given X hypothetical dollars and is required to offer a split of this money with the second participant (the responder). If the second participant accepts the split, the deal is done; if the split is rejected, neither participant gets any money. The two never meet and they each only participate in the game once. This experiment is further complicated by using runs of the game wherein the proposer never learns of whether the offer was rejected or not. Under a traditional rational economics model, the responder should accept any offer of money, no matter how small, and, knowing this, the proposer should offer the smallest quantum of money they can. Despite this, in this and similar experiments, responders often reject “unfair” offers; this has previously been explained as the responder trying to “punish” the proposer for offering an unfair proposal. However, because in this experiment the proposer never learns whether the offer was rejected or not, this explanation does not hold. The experimenters propose a new theory (with support from various other experiments in social psychology and neurobiology); that the response is an emotional one. That is, that people reject the offers because the offer makes them angry and disgusted and that expressing this emotion is worth more to them than the money offered.

“The Absence of Reward Induces Inequity Aversion in Dogs”

In this experiment, dogs were trained to perform a trick (giving the experimenter their paw) in exchange for a treat. The dogs would still perform the trick a number of times without a reward. However, when a second dog was introduced, the dog’s behavior would change noticeably; if the other dog received a treat for performing the trick, the dog would be much more hesitant to perform the trick and would stop performing much more quickly if they did not also get a treat.

Again, these results conflict with traditional economic models. If the dogs were acting strictly rationally, the reward being given to another dog should have no impact on their decision to perform or not. When taken with the above experiment, it seems that social mammals have a sense of fairness quite distinct from the ideas of efficiency.

Fairness Efficiency and the Law

In some sense, these findings should come as no surprise. Many law students in Contracts or Property courses have a difficult time agreeing with certain courts that the most efficient outcome is the fairest (assuming that the judge actual arrives at the most efficient outcome). They have the same emotional reaction the responder has in the private rejection experiments. The obvious “solution” to this “problem” is to reject the relevance of these emotions, and essentially reduce justice to a synonym for efficient. This ignores the fundamental nature of these emotional responses (even dogs appear to manifest these emotions); people will still feel these emotions whether or not they considered relevant.

A more desirable solution would be to place a value on the emotions, and use these values in the calculus for determining the efficiency of the case’s outcome. This is similar to the view proposed by Frank Michelman in "Property, Utility and Fairness", (80 Harv. L. Rev. 1165 (1967)). In brief, that paper discusses the effeciency and fairness of decisions in cases dealing with just compensation in takings. In relevant point, the paper brings up the idea that the party's and sympathizer's dissatisfaction ("demoralization costs") need to be considered; only when they are lower than the "effeciency gains" to society as a result of the case or the settlement costs should a court choose to find against that party.

Another “solution” is not so much a resolution of the issue as another way of perceiving it. Every case that comes to trial is different from the game used by the experimenters in “The Private Rejection of Unfair Offers and Emotional Commitment” because of a court case has a third party arbitrator. So, when one party sees the outcome as unfair, their anger and disgust are directed not only at the other party, but also at the judge and indirectly the whole of the legal system. At first, this may seem less than ideal, as the legal system is ultimately only given strength by society’s collective endorsement. However, one individual’s resentment is not likely to have any effect on the power of the law. Furthermore, this may serve a beneficial purpose to society, by directing the angered party’s resentment away from the other party (who is flesh and blood and can be hurt through vigilante actions) towards the court itself (which has metal detectors and armed guards). Ideally, parties arrive at a fair outcome through out-of-court settlement; but when this fails, it may be for the best that the court is the one blamed for the unfair outcome.