Woods: Moral Judgments & International Crimes: The Disutility of Desert

Andrew K. Woods (Harvard Univ. - Law) has posted Moral Judgments & International Crimes: The Disutility of Desert (Virginia Journal of International Law, forthcoming). Here's the abstract:

The international criminal regime is deeply retributive. But scholars rarely defend the regime in retributive terms, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist ground that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars implicitly adopt a behavioral theory known as the “utility of desert,” a theory that draws on the fast-expanding literature on moral intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this gap and argues that whatever its merits in the domestic realm, there are special behavioral reasons to be skeptical about the “utility of desert” claim in the international context. Moral intuitions as heuristics for moral judgments are error-prone, and the international criminal regime has a number of extraordinary features which may increase the likelihood and cost of these errors, including: the complexity of the crimes; the unusual diversity of stakeholders who possess heterogeneous intuitions; and the regime’s multiple goals, some of which are inhibited by moral condemnation. After examining the significance of these differences, the Article outlines the implications of the analysis for regime design. Some of these design implications accommodate the international criminal regime’s current retributive approach, and some are fundamentally incompatible with retributivism.