Fairness does not come from external principles that exist in the universe and bind us. Fairness norms are human solutions. They are the rules for playing the game of life properly and agreeing on everyone’s due in society.Fairness norms allow people to avoid having to haggle all the time in real life and to agree quickly on how to split rewards and costs in their interactions. But they can work in practice only if they are not too far from what people could actually claim using their raw bargaining power in a hard-fought bargaining process. Only norms that are broadly in line with actual differences in bargaining power will tend to last.
The immediate problem with that thesis is that it does itself do what it claims it cannot do: it defines fairness, i.e., as "playing the game of life properly and agreeing on everyone's due in society." If this is a universal truth across all of the various societies covered, then there is a philosophical universal at work; the fact that different societies have come up with different ways of agreeing about how to address that universal is actually evidence against the idea that "fairness does not come from external principles," i.e., external to the facts about a given society. If every society develops some idea of fairness in spite of their substantial differences, there probably is -- indeed almost certainly must be -- something external to the facts of any given society driving that project.
The second problem with the thesis arises from the examples. Since I started with the diyya, I'll begin this part with it too. He's arguing that fairness norms essentially ratify existing imbalances in social bargaining power, and points to the fact that in Iranian law (his example, but Islamic law generally) a woman's life is worth half the compensation of a man's. It is true that women have less bargaining power in Islamic societies and under Islamic law; a woman's testimony is also worth half of a man's. Yet the diyya is not the only such system historically, and the value of free women compared to free men has not always disfavored women even though presumably women always had less bargaining power in the era.
This effectively made killing a celibate priest as expensive as killing a nobleman, a useful incentive for communities tempted to settle disputes with the local clergy through violence.
Women of childbearing age occupied an unusual position. The Salic Law valued a free woman who had begun bearing children at 600 solidi, triple the price of a free man, reflecting the community’s loss of future population.
Note that those arguments about why the price was set where it was are assumptions of the modern author, and that they are in direct conflict. If the concern was with future population, a celibate priest would be worth less, not much more. Still: the priest in that society had a very high bargaining power, being able to draw on the authority of the Church as its representative locally in an era of great Church power. One who was powerful enough that he could retain his position even though he was known not to be celibate presumably had greater bargaining power, though, not less: if the author's thesis were correct, he should command more compensation, not less, but the facts say otherwise. And the valuing of a free woman at three times the rate of her husband is not likely a demonstration that she had three times the bargaining power in society! Yet it was the case.
This points to the second problem, but I'll go through another one of his examples before stating it. He opens with an example of king Clovis killing a soldier after that soldier enforced the (actually perfectly equal in spite of differing social/bargaining positions) Frankish rule about distribution of captured war treasure. The conclusion the author draws is that this shows that the equal rule couldn't survive in an unequal society. The example is contingent, however; if the soldier had survived Clovis' attempt and killed the king in revenge, he might well have been rewarded by being elevated to the kingship himself by his fellows (the same ones who had, after all, accepted his rebuke of the king earlier). Then we would be reasoning from the example that the equality demonstrated by the rule was so persuasive, even in an unequal society, that violating it allowed you to rebuke kings or, in extreme cases, kill and replace them (which is, by the way, the story of how the fictional Conan the Cimmerian became king by his own hand -- a story from a much later time).
The author of the original piece is a behavioral economist, not a philosopher nor a historian. He is attempting a philosophical project from historical examples. The problem with doing that is that the two disciplines are diametrically opposed to one another: history is concerned with stating the particular facts that actually happened; philosophy is concerned with the universals (such as this notion of 'fairness,' which appears in at least some form from Aristotle's 'justice as fairness plus lawfulness' to Iranian diyya to Saxon wergild to American payments for wrongful death or dismemberment). The attempt to straddle that line with economics is closer to the historical project, but the historical facts are in a sense accidents that might have gone this way or a different one as far as we know. The universals are found where, regardless of which way the facts happened to go, we still find the same themes emerging.
Fairness and its relationship to justice is one of those things. I think it is probably true that those who occupy powerful bargaining positions are able to use their bargaining power in part to get the people around them to ratify their unfair position. The fact that they always feel the need to do so, with tools like laws or by purchasing social praise from journalists, or from skalds or scops or poets, or by purchasing masses from priests or commissioning praise-plays from playwrights, shows not that fairness is defined by their power. It shows that they are universally keenly aware that the unfairness makes their position perilous, and are always in every society seeking to shore it up.
So what is fair, regardless of the facts of society? That was a question asked by John Rawls in the last century in his famous 'Veil of Ignorance' thought experiment. It's not an experiment that can actually be performed successfully, only imagined as a way of thinking about the problem. If you could pull people from different societies, times, and places, and put them through this 'veil' so that they were temporarily unaware of the facts of their society, and ask them to devise fair rules for any society -- knowing that any society would have inequalities of these kinds, but not knowing where they would fall -- what kinds of rules would they devise?
Rawls wrote a long book about the idea that 'justice JUST IS fairness,' but if you read it he ends up smuggling back in Aristotle's idea that you need laws to enforce people treating each other the way that virtuous people would do by free choice. Thus, after the whole long thing you end up all the way back at the beginning with Aristotle. But there's your universal: two thousand years of law and economics and philosophy, and we always end up in the same place.
I think life is unfair, in that luck doesn't follow deserts, but rather than rail against fate I'd prefer to focus on the duty of charity and mercy owed by the more unfortunate in favor of the less fortunate--at least when that doesn't amount to enabling self-destructive behavior.
ReplyDeleteMost of us observe standards of fairness of many sorts in competitive dealings between people. Complaints about the unfairness of life in general, however, seem to be an attempt to upbraid God for allowing misfortune to occur without a strict accounting for deserts, or at least not one that's apparent to us, as if He'd promised a fallen race a cushy berth.
Fairness in competitive dealings between people can be criticized on general grounds of each culture's ideas of virtue, and I wouldn't claim that all cultures get it equally right. Still, what's "fair" is often situational, or a measure of how thick- or thin-skinned we are about expecting people to bear the consequences of competition. Many of us obey a standard that amounts to "picking on people your own size," and avoiding fraud (except where deception is considered a valid part of the competition). Fairness sometimes also means avoiding hypocrisy, i.e., living up to the standards we demand of others, as well as requiring inquiry before leaping to judgment, warning people of consequences, and so on.
So the author probably has a similar analysis of "'the duty' of charity and mercy" to that of fairness. The commitment to saying that there is no universal outside of the facts of a society that governs fairness doesn't necessarily compel him to make the same argument for charity or mercy; but it does compel a rejection of the Christian metaphysics in which there is a God whose ideas about such things set terms for humanity.
ReplyDeleteThe argument isn't limited to that, though, it's stronger. What he's arguing is also that the ideas you just expressed are meaningless outside of your own particular society. Inside that society, they can be part of a working-out of what the terms of that society will be for 'fairness,' but beyond it they have no meaning at all. Other people could understand the words, but would find them irrelevant and unhelpful; every society ends up having to do this work independently because its existing terms spell out what kinds of ideas about fairness will be practicable.
The irony of using historical examples to make such an argument was striking, since he's doing exactly what he says can't be meaningful or important.