Thoughts on fairness: In defense of a friend

I’ve come to believe that a large part of morality (and I’m talking about morality from a philosophical point of view rather than a colloquial one) is known or intuited by young children, but that as we grow older, society corrupts our confidence in some certain valuable moral principles. One of the principles that I find most relevant here is the idea of fairness. Fairness is usually captured by the idea that if a person is good, they deserve good things. If a person is bad, they deserve bad things. And to the extent to which a person falls somewhere in between the two extremes, they deserve the good and bad things in life to the degree to which they are good and bad.

Young children are renowned for their constant bleatings of "It’s not FAIR!" If a school teacher hears talking in class and holds the whole class in for recess, you can put Vegas odds on the fact that some kids will protest on grounds of fairness. Nothing seems more obvious to a young child as when something is unfair, particularly if it is unfair to their detriment. Evolutionary psychologists now believe that an emphasis on fairness is a mental module which has been selected for through natural selection and that it forms the basis of most all of our moral intuitions.

But most adults (including people my age, I suppose) don’t think about fairness all that often. What is more shocking is the lack of emphasis on fairness in the legal profession. To be a good lawyer or judge, legal professionals need to step back and take stock of their historical function. Judges are the King Solomons of the modern age. People bring disputes before them and the judge’s sole job is to resolve the dispute in the fairest way possible. A lawyer is simply a helper to the judge, giving the judge the best arguments he can as to why the judge should use his wisdom to come to a particular conclusion.

But when is the last time someone in a law class discussed fairness? After the first week of school during my first semester, I was shocked by the absence of terms like fairness and justice in our discussions in class. I started keeping a running tally of the number of times that the terms were used - a tally I’m still keeping, by the way - in their appropriate forms (i.e., I don’t count ‘justice’ when someone refers to the ‘justice system,’ and I don’t count ‘fundamental fairness’ when it is simply used as legal jargon without cognitive content). For those who care to keep track with me, fairness = 2, justice = 8.

In almost 2 full years of law school, to have the core concepts of our discipline mentioned so infrequently tells me one of two things. Either legal professionals have forgotten our role in society (probably true), or legal professionals as persons have forgotten the role of fairness in their everyday lives. Being committed to representing a client is fine, but we need to remember that our responsibilities do not lie with our clients. Our responsibility is to society to solve disputes in the most fair way possible. We are not playing a game to win or lose for our client, and making the biggest gains for our side is not the best thing for society, for ourselves, or for the legal profession.

This became more apparent to me yesterday. A good friend of mine came into class frustrated, hurt, and upset by the callous way in which the editors of the law journal had treated her. They had treated the journal as their client, abused their power over the system, and tried to win the largest gains for their side without considering what the fairest course of action would be for all parties involved.

Traditionally, we respect the people on the law journal for having the technical skills to write and edit truly boring documents that virtually nobody reads or cares about (and when I say that, you know it means something). Yesterday, I got a lesson about why the people on law journal who abused my dear friend are unworthy of my respect.

Good people deserve good things. When a good person is treated in a shabby manner, the people who abdicated their roles as the societal repositories of fairness in favor of temporary gains for ‘their side’ lose my respect. They lose my respect; they lose my admiration; and they lose out on experiencing the honored position and tradition that law once held in civilization.