This is a tricky subject. On the surface, it would appear to be an easy issue: since the dictionary says ‘justice‘ and ‘fairness‘ are equivalent terms, they must mean the same thing. And this is exactly how the majority of us tend to use these words. We treat the concepts of fairness and justice as though they mean the same thing. But do they? Do they really mean the same things? Or is it possible they are actually two different ideas that can, in some circumstances, be on opposite ends of an issue? Is it possible for them to actually oppose each other? The problem here is that the majority of us have never actually thought about this question, and, if we have, we probably didn’t think too deeply. So, let’s have a look at a few examples and see if we can determine whether or not these two ideas — ‘justice‘ and ‘fairness‘ — are actually the same things in our minds.
We’ll start with ten friends who go to dinner every Saturday night. One of the ten friends is wealthy, so the other nine always leave him to pay the bill — every single time. Ask yourself, is this fair? Now ask the next fifty people you meet the same question, but put it a slightly different way. Ask them if they think it is fair for a rich friend to pay for his friends’ dinner? Do you think every one of those fifty people will agree with you? Or do you think some people will think this is fair and others will think it is unfair? Now ask yourself whether or not it is just to force the rich friend to pay for the dinner bill every Saturday night? Once again, ask the next fifty people you see the same question, only ask them if they think it is just to force the same person in a group of ten friends to always pay for dinner? Leave out the part about that person being rich. Ask them, if the same group of ten friends go to dinner every Saturday, is it just to always force the same person to bear the burden of the other nine?
Hold on to this example while we consider one more.
Let’s pretend there are two people living on ocean-front property in the State of Florida. Let’s pretend they live next door to each other: they are neighbors. One of these people makes $50 million a year, the other only makes $50,000 a year. One day, the wealthy neighbor clears the water front to make a beach and puts in a sea wall to protect the rest of his property. He hires a firm to do this for him. The other neighbor does not have the money to hire anyone, but he thinks this is a good idea, so he does the same thing by doing the work himself. Now suppose the law says that no one can make any improvements to ocean front property. If they do, they will be fined $250,000. And suppose the code enforcement agent notices what has happened on the neighbors’ properties and fines them both. Well, the rich man just writes a check and pays the bill, but his neighbor does not have this kind of money and is forced to sell is property to pay the fine. The rich neighbor hates what has happened and helps out his neighbor by buying his property so he can pay his fine. OK, was this fair to the man who could not pay his fine? Was it just?
OK, now we can take a closer look at ‘justice‘ and ‘fairness.‘ In both examples, we see that one person with money was able to do something that another person with less money could not do. But look at how ‘fairness‘ would most likely be perceived in each case. In the first, most people would think it is fair for the wealthy friend to pay the dinner bill for his other nine friends. But these same people will probably think it was unfair that the wealthy man was not only able to keep his own property because he could pay the fine, but he also acquired his neighbor’s property because his neighbor could not pay his fine. So, why is it ‘fair‘ to make a rich man pay because he can afford it in one case, and ‘unfair‘ because he had the money to pay in another?
Now consider whether or not it is ‘just‘ to make the rich friend pay for dinner every Saturday night. There is no law governing this situation that says the rich man must pay for his friends’ dinner, but it is clear that the rich man is not being treated the same way as his friends. There is a double-standard present in this example, yet most people will still think it is ‘fair‘ to make the rich friend pay. But how about the second example. Here we have a law in the equation, and the law is applied equally and impartially to both neighbors. Yet, even though both were treated equally this time, most people will think the result was ‘unfair.’ This is the exact opposite of the first situation, where most people will think it is ‘fair‘ to treat the rich man differently than his friends. Do you see how most people will conclude that ‘fairness‘ in these two cases is on the opposite end of ‘justice?” So, how could they mean the same thing if they are on opposite sides of similar situations?
Here is where many people will get lost, because they will not recognize that the two examples I gave you are actually equal. Instead, they will argue that the examples are not equal, therefore, I am trying to compare apples to oranges. Let’s deal with this right now, so it does not confuse the rest of our discussion. The two examples are the same in that they compare and contrast the same set of circumstances. They are only different in how these principles are presented. In the first case, a rich man is forced to pay for dinner every Saturday night because he has money and most people will think it is fair. By definition, this rich man is not being treated the same way as his friends, yet, most people will think that it is still ‘fair‘ and ‘just,’ even though there is a clear double standard here. However, these same people will most likely make the exact opposite conclusions in the second example I gave. In that case, they will not think it is fair that the rich man has money to pay his fine. And they will not think it is ‘just‘ that the fine forces the poor man to lose his property — especially to the rich man. Yet, in this case, the law treated both men equally. There was no double-standard, but the average person will make the exact opposite conclusions as they did in the first example. And this is why these two examples work: one shows a clear double-standard, and that is OK, but then, where there is no double-standard, it is not OK, Therefore, either unequal treatment is ‘fair and just,’ or the two ideas are not the same. So, how do we determine which it is?
Well, look closer at why the average person would think it is ‘fair’ for the rich man to buy his friends’ dinner. It is because the rich man can afford it. That is a moral judgment! But it has nothing to do with the law or the application of the law. In the second example, however, the average person will think it was ‘unjust‘ for the poor man to lose his property. But, in this second case, the law is involved and it is applied to both men equally. It did not treat the rich man one way and the poor man another. Here again, most people will think this second example is ‘unjust‘ because they are making another value judgment. Obviously, this is an indication that ‘fairness‘ is somehow connected to the notion of right and wrong, whereas the law is not necessarily so. But how does that help us with ‘justice?‘
If we go back to our dictionary definitions, we will find that ‘justice‘ deals with the impartial administration of the law. In other words, it deals with treating everyone the exact same way, whether they are rich or poor. As we have just demonstrated, there are times when what is thought to be ‘fair‘ may be in direct opposition to the notion of impartial treatment under the law. Therefore, we can conclude that the notions of ‘justice‘ and ‘fairness‘ are — in fact — different ideas after all. The only thing left for us to do now is determine how they are different.
Let’s start with the law and the concept of ‘justice.’ This one is actually easy. ‘Justice‘ is the equal and un-biased treatment of every individual according to the letter of the law. It seeks to remove any and all double-standards, without any regard to what is thought to be right or wrong. Consequently, the law — and, therefore, justice — can be in direct opposition to what is thought to be right. For this reason, it might help if we think of ‘justice‘ as a process, or an action. On the other hand, ‘fairness‘ is connected to what is thought to be right and wrong. This is a determination based on values, not a process. Therefore, we can think of ‘fairness‘ as a judgment. So, we have ‘justice,’ which is a process, and ‘fairness‘ which is a judgment.
Finally, this means that ‘fairness‘ and ‘justice‘ are not only different ideas, but they can even be used against each other. One can be ‘fair‘ in writing a law by making a judgment of how right or wrong that law is, and one can be ‘just‘ in making a judgment on whether something is right or wrong by following a process to help arrive at consistent determinations. Turning this around, we can determine whether or not a law is ‘just‘ by making a judgment based on the affect of its application in a given case, and we can decide whether or not something is ‘fair‘ by looking to see if the process used to make that determination was impartial.
Either way we look at this, when we really dig down into this question, we find that ‘fairness‘ and ‘justice‘ are two different ideas. However, they are linked. Under Natural law, they are twin sisters. This has been understood for centuries:
“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, although neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly called punishment . . .”
— Marcus Tullius Cicero, Republic, The Laws, 59 – 47 B.C.
“Human law must rest its authority ultimately upon the authority of that law which is divine. . . . Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.”
–James Wilson, Signer of the Constitution; U. S. Supreme Court Justice,
Ultimately, morality (which comes from the Creator) is connected to law (which is of man). The two are connected. The concepts of ‘fairness’ and ‘justice’ are merely guides to assist humans in writing laws that are in line with the eternal principles, then in applying them according to the circumstances at hand. Now, this is not to say that ‘justice‘ and ‘fairness‘ can be twisted to allow whatever laws, interpretations or decisions we desire at a given time. That would not only be ‘unjust,’ but also ‘unfair.’ No, they are joined because the law must be written and upheld in a manner that treats every individual equally, while, at the same time, maintaining the hand of mercy and morality in how the law is applied in any given circumstances. In truth, this is why most of us think ‘fairness‘ and ‘justice‘ are the same thing. Even though we have just demonstrated they are different things, and can even oppose each other, we instinctively understand that they are so inseparably linked as to appear to be parts of each other.
Incidentally: the example of the rich and poor man with the beachfront property? Yeah… That is real. The laws of Florida were written by corrupt men who either took money from or caved to political pressure from environmentalists. They wrote the laws so they could say they were protecting the environment, but they did it in a way that allows the rich to just pay a fine they can afford and move on with whatever they want to do to the property. The law is corrupt, and it is neither ‘fair’ nor ‘just’ — even when it is properly applied at the cost of the poor man’s property. This is actually the justification for jury nullification: when the jury determines that the law or its affect is not ‘fair‘ (i.e. moral), it can refuse to enforce the law in a given situation, or it can even strike down that law all together. This is all based in the notion of Natural Law.
[NOTE: In the interest of full disclosure: this post has been totally re-written. The addendum process would have been no help with the original post. I had made such a mess of my first attempt to explain these two concepts that I confused people more than I helped them. I also exposed myself to a series of very contentious and — therefore — unproductive exchanges in the comments section. Hence, the older comments were deleted when this post was re-written. It is my sincere hope that the new version of this post — this version — will actually help people from this point forward. Before I re-wrote it, it definitely was not doing that.]
THE ROAD TO CONCORD 