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In All Fairness

This entry owes a lot to discussions had in the last couple of months that have helped me fill an important gap in my book, so a big thanks to all involved. I will try to avoid any super-hero references this time…

A core principal of neoliberalism and the new-right is that fairness means treating everyone the same, that is to say that rules apply identically to all people and make no reference to the characteristics or status of a person and without discriminating between such characteristics. This principal underlies the notion of “the rule of law”, private property, and the free market (your dollar is no different to mine), as well as opposition to institutions such as progressive taxation (discriminating against the wealthy) and wealth redistribution (and again). The libertarian Robert Nozick applies this idea in his “entitlement theory” which outlines a framework for full private property rights, free exchange and free markets. In the jargon, the notion of treating all identically is called “procedural justice”.

So how plausible is this idea? Do we really equate fairness (or, if you prefer, justice) with rules that apply identically to all?

The board game monopoly shares many of the characteristics of procedural justice and the free market – all rules apply equally and in the same way to all with no regard to whether you are the shoe, the iron, or the thimble, whether you are rich and own hotels or poor. There is money and property, there is an element of chance, and so forth – just ignore the welfare-state interference that occurs every time you pass go and the occasional random tax, and what you have is basically a (simplified) free market economy. Now imagine that I were to ask you to play the game with me, except instead of the standard amount of money issued to each player at the start of the game I suggest that I start with $10,000 and you start with $1. Better yet, imagine that we start the game with the amount of money, hotels etc. that resulted from a game that our parents played. To make this more interesting, neither of us is allowed to know the outcome of our parents’ game. Would you agree to play the game with me under either of these terms? I would argue that you would (politely) decline. And I’d wager that you’d do so because the game wasn’t fair. Monopoly is just a game of course, and a bit of fun and we can play and still walk away friends regardless of the winner. But in real life, this is precisely the game that libertarians insist that you to play. Your starting position in the game is irrelevant to the fairness of the game because we all play to the same rules. We should note that the rules of Monopoly (the game) are designed to produce exactly one winner and up to five losers. To anyone who takes fairness seriously, the similarity between the game and the real-life system of private property and free exchange should be deeply concerning. The rules of society should not aim to produce winners and losers but to facilitate happy, peaceful, and prosperous co-existence.

The problem here is that we simply don’t equate treating people identically with treating people fairly. We recognise that differences need to be accounted for if we are to be fair. Karl Marx once noted that nothing is more unequal than treating unequal people equally. And he was right. Recognising and accounting for differences is fundamental to our sense of fairness. Take some sport games. Golf has a handicap system which explicitly gives a head start to less capable players. In my misspent youth, I occasionally played in social snooker competitions with a similar handicap system (a great help given my relative lack of talent with a cue). We require boxers to box in weight classes, discriminating by size so that boxers compete only with comparable boxers. In school sporting events we have similar aged children compete with each other.  We have separate events for the Olympics and the Paralympics because we recognise the absurd unfairness of pitting a full-bodied athlete against a wheelchair user. In all these cases we discriminate. And it is because we discriminate that we feel that these games are fair. Speaking of wheelchair users, we allocate special spots at public venues for them that are close to the entrance with extra room to manage their chairs. This discriminates in their favour (and against all other drivers), but only because it helps them to come closer to the normal functioning taken for granted by others.

Fair rules do discriminate and it is important for fairness’s sake that they do so. In the examples above we can see that the discrimination is intended to create a level playing field. It does so by neutralising biases that exist in the remainder of the rules either by limiting the conditions or by compensating for differences. Of course, there are kinds of discrimination that we believe do make the rules unfair – e.g. references to religion, or race (but then sometimes such discrimination in the form of positive discrimination can be important in neutralising existing and overwhelming biases too). What we are after here is not equal treatment but equal consideration.

So what constitutes fair discrimination? Arch-neoliberal Friedrich von Hayek has argued, on behalf of libertarians, that discrimination is legitimate only if the group discriminated against agrees to it. This is hardly plausible. We don’t consult murderers before making that illegal, and we don’t consult the feelings of those who love to drive faster than is safe for everyone before formulating a speed limit (a discriminating rule against those who love to speed). More generally, we disregard the objections of someone who is seeking to protect an advantage that a particular configuration of rules may give them. Nozick argues that fairness can only be judged from the outcome of the application of a set of rules – if the rules have been followed then the result is fair. But this gets it completely around the wrong way. We judge whether the rules are fair by comparing the outcome to our metrics of fairness. Our notions of fairness precede and exist outside of the rules, and it is only when they permeate into the rule-making process, such that the rules are designed to produce fair results, can we hope to claim that the rules themselves are fair. If the outcomes of a set of rules frequently appear unfair to us (as is overwhelmingly the case under the free trade system with its extraordinary biases towards the haves) it is a reasonably likely sign that the rules themselves are not fair, and that we should start looking for some unequal treatment in order to get some equal consideration (or else re-write the rules from scratch).

John Rawls, in his landmark work A Theory of Justice, offers us a thought experiment that is helpful here. He proposed a rule-making body that is made up of a group of people who are behind what he called “the veil of ignorance”. Behind this veil none of the people know any of their own characteristics – their wealth, intelligence, race, gender, religion, physical abilities or disabilities, talents or lack thereof, and so forth. They are aware, however, that people do have these characteristics (just not which ones they themselves have). From this hypothetical position (which Rawls calls “the original position”) they are asked to design the basic rules of a society, knowing that they could be any person in the real society. Unsurprisingly, Rawls named the set of rules that flow from this process “Justice as Fairness”. Whether we agree or not with the set of rules that Rawls believed would flow from such a process (there have been excellent arguments both ways) there is nevertheless something compelling about this method and what it tells us about how we conceive of fairness. By being faced with the possibility that they might be in any of a variety of circumstances, rich or poor, healthy or sick, and so on, each participant considers what would be a fair system to encompass them all. They might conclude that handicapped parking at public locations should get special treatment in the way described above; they might conclude that no person should be so wealthy that they dominate the direction of their society; that the poor should receive extra money and that those with wealth should give some of that to help the poor; that gross economic inequality is an unhealthy condition for a society for a number of reasons. They would recognise various vulnerabilities and forms of domination that might exist and formulate rules that address them. But only by removing knowledge of, or ignoring their own advantages, would they reach these conclusions. Nozick argued against Rawls claiming that the ignorance of their situations removed the whole person and made the process meaningless. But he misses the point. The point is that the deciders are aware of the possible characteristics and how the mix of people with those characteristics might interact with each other. They consider the situation from the point of view not only of a person who may have certain characteristics but also from the viewpoint of those that have to share a society with such a person. That in itself is enough information. A benign and wise Martian, for example, could use this information to design a set of rules.

Recall my proposed Monopoly game, wherein we each started the game from the end result of a game between our parents. If you knew that my father ended up with all the money and hotels on each street and yours ended up with nothing you would rightly believe that you were being treated unfairly. If the roles were reversed you would be all too eager to commence the game (a familiar situation to those who have followed the development of neoliberal control in the last few decades). Behind a veil of ignorance, we might agree that the normal starting state of the game was much fairer for all. Or we might even agree that such a game was rather silly and we should go and throw a Frisbee in the park instead. But if we were faced with those rules applying to the real world, knowing that it was not a game, we would be likely to reject the Monopoly rules altogether and work from a different starting point.

In the real world, of course, we cannot replicate Rawls’ hypothetical situation. The best we can settle for, and this is not so bad after all, is a democratic process in which all of the notorious biases are removed – those of wealth, privilege, power, and greed; in which the deliberators are the broadest and most representative set of members of society possible (as opposed to the unrepresentative representatives that plague our current systems); where each meet under conditions of deliberative equality. From there we have some chance that fair social rules will emerge. I have absolutely no doubt that such rules will be crammed full of discriminations and distinctions. And I am equally sure that the rules will be all the better for it.

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  1. Doug Hazelrigg
    December 23, 2011 at 2:17 pm

    Life can be, and is, unfair. The question is whether we think we possess enough wisdom or knowledge with which we might mitigate this fact. Your ideals are noble and persuasive, and (in other venues) your argument that unrestricted freedom usually results in it’s attenuation by one group with respect to another is completely valid. But at the end of the day, the rules are legislated by real people with agendas, both personal and co-opted; and the question will always be about which agenda we are going to follow. Since we don’t know any benign Martians :), such decisions will always be political, even in a collectivist society. I think that’s where the purely academic neo-liberal position starts and (hopefully) ends: a minimal set of rules with minimal impact on freedoms, and which favor neither the rich or the poor; a “class-blind” socio-economic regime. Which shouldn’t be confused with what we have today, where many of the rules, and even actions taken outside the rules, disproportionately favor those with means.

    • December 24, 2011 at 2:55 am

      Hey Doug! Merry Christmas mate. And thanks for the thoughtful comment.

      I’d like to correct one assumption in your response before going into the rest – I’m not advocating any sort of collectivist society (if that’s what your suggesting). I’m simply describing very achievable improvements to democracy (I’ve recommended James Fishkin’s work on this in the past, and offer it again). I’ll come back to this in a moment.

      The notion that we must use (and only use) “invisible hand” mechanisms to develop society (and knowledge etc) is, of course, utterly central to neoliberalism. It also suffers from severe limitations. The idea that we cannot possess enough wisdom or knowledge to make collective judgements is, I believe, simply false. Or rather, the notion that such judgements are inferior to those of the “invisible hand” is quite absurd. There are plenty of counter-examples. More importantly, the kind of judgements that we make at that level are of a categorically different sort to those at the individual level. We cannot judge the best soap-powder at the collective level (and it would be silly to try) but not only can we discuss the overall set of relations at that level but we can only discuss such things at that level. Bad things come from the invisible hand just as much as good ones – it punches and scratches as well as caresses, as I like to say. Poverty, polution, climate change and social unrest are all “invisible hand” effects of the bad sort. In other words, the neoliberal structure leaves problems that must be addressed and cannot be addressed by pure individualism. As far as democracy goes, under neoliberalism too much is ruled out – it actively disables collective decision making. And worse than that, neoliberalism has massively exacerbated the problem of political representativeness (every single member of the UK cabinet is an Eton boy, and how many of the Republican (or Democrat) candidates are working class or unemployed?). Political equality, and just plain democracy, cannot co-exist under a free-market society – they are rival systems.

      Most of these problems stem from two core category errors in neoliberalism.

      The first is the notion that rights exist to protect freedoms. I cannot see any validity in this at all. Your rights exist not to protect your freedom, but to protect you from MY freedom. We start with complete freedom and superimpose rights on top of it to remove various oppressions. Rights only ever make sense if understood as constraints on freedom for the benefit of those who must co-exist with the free person. It can only be that way in a world with many people and a shared physical reality. Unlimited freedom (and unlimited rights) are both recipes for unlimited tyrany.

      The second categorical error addresses your point about minimal interference freedom being where neoliberalism both starts and ends. Sadly it doesn’t – if it did it would be more like anarchism which, as a political position, I find much more sympathetic (although still implausible). Neoliberalism offers the unlimited private property model as the solution to freedom. And that is not at all a neutral offering. I have written elsewhere (see blog “It’s Freedom, Stupid”) about the problems of unlimited property rights, and again point out that unlimited rights of any sort are simply a recipe for tyranny. All unconditionally held property is a tyranny to all but the right holder. The error of the neoliberal is to claim that property is an attribute of the person (whence derives the non-interference imperative). It is not. Property rights are relationships between a person and the external world (and, by extension, with every other person in the external world). Property rights facilitate freedom by supplying the materials essential for action (and all free action requires such material – at the very least space). To secure free acts property must a) be guaranteed to all and b) limited (as domination relationships appear beyond a point). Unlimited property rights exlude such action for those who do not hold property. Property rights cannot exist as a “negative” right of non-interference. They can only function as freedom-enhancing if stated as a “positive” and guaranteed right of access. Some homework for you on this: Henry Shue’s “Basic Rights”, and Jeremy Waldron’s “The Right to Private Property”. Both are accessible and insightful.
      Right, now its time for me to enjoy what Christmas eve here in Sydnet where we have some rare (this year) sunshine and dry weather!
      T

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