Thursday, May 2, 2024



            When I think of someone saying, “That’s not fair,” I first think of a teen-ager complaining about some rule or restriction being imposed by a parent. (This scene may be out of date, as a contemporary teen might just tell their parents to go screw themselves – or worse.) But when a person says, “That’s not fair,” what do they really mean?


            At its core, the words might be driven by a feeling: “I don’t like it.” But the appeal to fairness takes it to a higher level, something like divine justice, where right and wrong are clear. It’s not quite the same as our earthly justice, where an action or decision is weighed against a written law or set of rules.


            No, it’s comforting to think there is some sort of universal internal fairness compass, something everyone shares. (Ignore the news, please.) We all can feel when something is just not fair. We just know it, in our hearts. I remember when I was teaching Humanities and we were discussing Plato’s Absolutes. We considered Absolute Beauty, against which we measure all our specific worldly attempts. And we considered Absolute Justice, and we felt it is possible to evaluate laws and practices against Justice. (I called it “real Justice “– my students disagreed.) The difficulty, we concluded (agreeing with Plato), is to set aside partiality and self-interest. We don’t judge the beauty of another person on the basis of whether or not they are attractive to us, and we don’t judge the justice or fairness of a law or decision on the basis of whether it benefits us. Hard to do that, I know.


            Interesting (to me, anyway) that when I looked up the origins of the word “fair,” I learned that it’s “akin to Old High German fagar,” which means beautiful. I like the convergence of Fairness and Beauty – though I know, of course, that the word “fair” has many other meanings, e.g., the term “fair maiden” probably is not usually a reference to Justice Ruth Bader Ginsberg. Can you think of a beautiful law? A beautiful decision made in this world? I think we can get close – though perhaps not in our current political environment.


            We think that the outcome of a game is “fair” if the winning team played by the rules. Sounds simple, but what if the rules are not fair? For examples, only think of the racial history of this country, where many of the “rules” were made by people pursuing their own self-interest rather than anything resembling fairness.


            What’s the opposite of “fair,” other than, you know, “unfair”? Is it “foul,” or does that just apply in baseball? I think it would be interesting to have the Supreme Court rule that a law or action is “foul” – though I’m not comfortable with how the current court might apply the term. Do courts look to “fairness” in making judgments? Do they ever use the term in rendering their opinion? Do they simply say, “That’s not fair”? If so, are they dealing with a gut-level feeling that a law or action was selfish rather than beautifully impartial? Or doesn’t fairness enter into their thinking?


            I yield the floor to the attorneys.

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