The Paradox of Fairness

Jenny Diski writes for the New Statesman:

justiceDesert, the noun deriving from the verb “to deserve”, appears to be an essential human dynamic. It is at least a central anxiety that provides the plot for so many novels and films that depend on our sense that there is or should be such a thing. Like Kafka and Poe, Hitchcock repeatedly returns to the individual who is singled out, wrongly accused, an innocent suffering an injustice. Yet consider Montgomery Clift’s priest in I Confess, Henry Fonda in The Wrong Man, Blaney, the real killer’s friend played by Jon Finch in Frenzy, James Stewart in The Man Who Knew Too Much and Cary Grant in North by Northwest; none of them is – or could be according to Hitchcock’s Catholic upbringing – truly innocent of everything, and often their moral failings give some cause for the suspicion that falls on them. There is always a faint tang of consequence about their troubles.

We worry about people not getting what they deserve, but, due to religion or some essential guilt we carry with us, we are also concerned that there might be a deeper, less obvious basis for guilt that our everyday, human sense of justice doesn’t take into account. In Victorian fiction, Dickens and Hardy are masters of just and unjust deserts, as innocents such as Oliver Twist, David Copperfield, Tess of the D’Urbervilles and Jude the Obscure become engulfed by persecutory institutions and struggle, only sometimes with success, to find the life they ought, in a fair world, to have.

In an attempt properly to get to grips with the idea of fairness, justice and desert, I have recently been struggling with the story of Amos, Boris, Claire and Zoey. They are the protagonists in a drama plotted by Shelly Kagan in his new book, The Geometry of Desert. To simplify, but only slightly, all four of them are injured by an explosion at work. A fifth person, You, comes along with a syringe containing a single dose of painkiller, while they wait in agony for the ambulance.

There is no point in giving everybody a little bit; it won’t help any of them enough. Whom do you give the single useful dose to? At this point, the devastation fades into the background and we learn that Amos was hurt as he happened to walk past an explosion from a device planted by the disgruntled or revolutionary Boris, who failed to get away in time, and that Claire, who instigated the bomb attack and set off the detonator, stood too close and was also injured by the blast, while Zoey came on the horrible scene and was wounded by a second blast as she was trying to go to the aid of the other three. The carnage can now return to the forefront of your mind and you have to choose whom to help with your exiguous morphine supply.

The Geometry of Desert considers both the fundamental and the complex nature of deserving. Kagan poses familiar questions initially (what makes one person more deserving than another?; what is it that the more deserving deserve more of?; does anyone deserve anything at all?) and then puts them aside in order to examine the underlying complexity of desert by means of graphs that represent his elaborately anatomised notion of desert and all the possible implications and interactions between its teased-apart elements. This graphical representation of desert is, he says, the most important and original part, and the point, of his book.

Which I dare say it is, but I got no further than my enjoyment and childish rejection of the initial elementary narrative. If I were Alice, the Wonderland in which I find myself wandering, enchanted but fearful and utterly baffled, would be geometry, algebra and (as Alice also encounters) formal logic. I am, if it is possible, spatially challenged. Maps and reality completely fail to come together in my brain. My eyes tear up and the trauma of school maths lessons returns to me as Kagan translates away from situation to number and algebraic representation to devise graphs whose plotted lines meander across their grid in a, to me, mysterious arithmetical relation to each other. I’m rubbish at all things numerical and graphical and, with all the will in the world, which I started off with, I could no more have read the greater part of Kagan’s book with comprehension than I could read the Bhagavadgita in Sanskrit.

And yet and yet, I can’t get away from the foothills of desert. I can’t shake off the elementary problems that Amos, Boris, Claire and Zoey create, lying there, waiting for that ambulance, me with a hypodermic full of morphine still in my pocket. Amos and Zoey innocent as lambs, but perhaps Zoey more innocent, having put herself in harm’s way in order to help the others? Boris and Claire guilty, for sure, but is Claire, the initiator of the harmful event, more guilty than Boris the foot soldier? Does it go without saying that I should perform a moral triage in order to decide which sufferer to give the morphine, based on the hierarchy of guilt and innocence? Kagan calls it “Fault Forfeits First”, so that Zoey would be first in line for the morphine and Claire and Boris at the back of the queue. But he points out a basic division in Fault Forfeits First, between the “retributionists” and “moderates” who subscribe to that belief.

The retributionists would not give Claire or Boris any morphine even if some were left over after soothing Zoey’s pain, because they deserve to suffer, having caused suffering. The moderates believe that no one should suffer, but that the innocent Amos and Zoey should be helped first if a choice has to be made. The world, the moderates believe, I believe and perhaps you believe, is improved by an improvement in everyone’s well-being. The retributionists think that the world is a better place if the vicious suffer for their viciousness.

But, as John Rawls claimed early in his career, unless you completely accept free will in people’s behaviour, unclouded by fortune or misfortune in birth, education or life experience, it is possible that no one deserves anything as a result of his actions, good or bad. The first instinct is to give Zoey the pain­killer, other things being equal. Other things being equal is the problem. Why, when you come to think of it, does Zoey deserve less pain or more well-being on account of her good will? Did she have a particularly fortunate upbringing or, indeed, an unfortunate one that inclined her to acts of benevolence? No one is culturally, genetically free of influence. In any case, she had no intention of being injured when she went to help. And who knows why Claire, who conceived a bomb and detonated it, became the person she did?

How do we know (butterfly wings beating in the rainforest, and all that) if there might not be something we are not aware of that would make it more beneficial to give Claire the morphine? What if she has information about other bombs that have been planted? And what if, given an “undeserved” benefit, she came to rethink her viciousness? There may be more purely angelic joy in heaven over such a change of heart, but there are also very good practical reasons to rejoice far more, here on earth, over the redemption of one sinner than over 99 people who do not need to repent.

The retributionists and the moderates believe as they do for the same complicated reasons as the good and the vicious. In the practical world, getting just deserts is enshrined in legislation, and justice is separated from fairness, precisely to avoid the endless entailments of the philosophy of desert. It isn’t so surprising that there have been 20 seasons of Law and Order, which in every episode neatly segments and plays out the uncertainties of policing wrongdoing and providing justice. Finally, I suppose, we have to settle for the muddle of “good enough” fairness, while thinking and trying for something better.

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  • mannyfurious

    I tried to read this, as it sounds like an interesting premise for an article, but after like 1,000 words of the author’s circuitous, repetitive rambling about her mother’s disappointment at the lack of “fairness” in the world, I lost my nerve. Jesus fucking Christ. Was she paid by the word or something?

    • BuzzCoastin

      well to be fair
      we’d have to note that this is old school literary style
      written for an upscale, edumacated audience @ New Statesman
      and written to fill magazine space as well as entertrain
      and not aimed at the ADD audience of today

      at least 15 years ago
      most B-schools started their articles with an Executive Summary

      • mannyfurious

        Nah. It’s just an overwritten piece, as far as I read, anyway. To justify my claim, I was going to post a brief CV of my literary reading credentials, but between all the Justin Bieber songs and Michael Bay films, I couldn’t remember what the point of my post was….