Fairness

Nicholas Rescher

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351324908
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

In theory and practice, the notion of fairness is far from simple. The principle is often elusive and subject to confusion, even in institutions of law, usage, and custom. In Fairness, Nicholas Rescher aims to liberate this concept from misunderstandings by showing how its definitive characteristics prevent it from being absorbed by such related conceptions as paternalistic benevolence, radical egalitarianism, and social harmonization. Rescher demonstrates that equality before the state is an instrument of justice, not of social utility or public welfare, and argues that the notion of fairness stops well short of a literal egalitarianism.

Rescher disposes of the confusions arising from economists' penchant to focus on individual preferences, from decision theorists' concern for averting envy, and from political theorists' sympathy for egalitarianism. In their place he shows how the idea of distributive equity forms the core of the concept of fairness in matters of distributive justice. The coordination of shares with valid claims is the crux of the concept of fairness. In Rescher's view, this means that the pursuit of fairness requires objective rather than subjective evaluation of the goods being shared. This is something quite different from subjective equity based on the personal evaluation of goods by those laying claim to them. Insofar as subjective equity is a concern, the appropriate procedure for its realization is a process of maximum value distribution. Further, Rescher demonstrates that in matters of distributive justice, the distinction between new ownership and preexisting ownership is pivotal and calls for proceeding on very different principles depending on the case. How one should proceed depends on context, and what is adjudged fair is pragmatic, in that there are different requirements for effectiveness in achieving the aims and purposes of the sort of distribution that is intended.

Rescher concludes that fairness is a fundamentally ethical concept. Its distinctive modus operandi contrasts sharply with the aims of paternalism, preference-maximizing, or economic advantage. Fairness will be of interest to philosophers, economists, and political scientists.

1

Treating Claims Impartially

(1) People’s claims are substantially a matter of social reality: of positive law, usage, custom, and the like. (2) And fairness strictly construed, consists in allocating shares in mathematical proportion with claims. (3-4) Fairness is emphatically not a matter of honoring the preferences of people. Rather, it is an instrumentality of justice, and so not of social utility or public welfare. (5) The issue of “equality before the state “ is something complex that actually stops well short of a literalistic egalitarianism. (6) However, procedural impartiality is a crucial aspect of fairness.

1. Claims and Their Basis

One speaks in matters of distributive justice of dividing “goods,” but this term is actually a sort of shorthand for “goods and bads.” Any adequate theory of this domain has to be able to deal with negativities as readily as positivities.

Distributive justice pivots crucially on the existence of claims. For as Aristotle emphasized long ago, what is involved here is “a kind of proportion” (analogon ti) where the shares of those involved are in alignment with one another “according to desert” (kaf axian).¹ A claim represents what an individual claimant ought “by rights” to obtain, and where the aspect of justice is absent, there are no claims either. It is sometimes said that “what is bad about inequality is its unfairness.”² But this pious sentiment is very much of an exaggeration that needs to be carefully qualified. For only when there is a preexisting equality of valid claims is an inequality of distribution bad, unreasonable, or unfair. There is nothing unfair about it when the victor of the race gets a prize but the losers a mere commendation for good effort. There is nothing unfair about it if the worker gets a wage and the onlooker nothing. There is nothing unfair about it if the ship’s captain with his great responsibilities gets a large salary and the cabin boy a modest wage. For the fact of it is that the claims of these differently situated individuals are themselves very different.

Claims are something significantly distinct from deserts. People do not necessarily deserve that which they can lay a legitimate claim to. If I hire you at a wage more than your services are worth you may not deserve to have the salary you earn, but you nevertheless have a valid claim to it. Again, you may not deserve to win the lottery, but having done so you and you alone have a legitimate claim to the prize.

Someone’s having a claim upon something is certainly a good reason for giving it to him (albeit not invariably a decisive one). But the converse does not hold since not every good reason for giving is linked to a claim. There are many reasons to give something to someone—roses to one’s beloved, say, or a birthday gift to a friend—that do not correspond to an actual claim of any sort.

Consider two analogous but actually very different cases:

1. A man is beset by some beggars in the street. He gives a dollar to one and nothing to the rest.
2. A charitable foundation is besieged by a variety of worthy causes for support. It chooses to support one but not the others.

In the first case, the nonbeneficiary has no just cause for complaint. For in this example there are no actual claims at issue: the beggars have wants and needs, but no claims. None of these supplicants has a right to any support at all; all of them lack any claims for consideration by the chooser, and in the absence of any claims upon him this benefactor is under no obligation in the matter. He can indulge his whims arbitrarily without liability to warranted recrimination. His treatment of those beggars is unequal but not unfair. Where there are no claims they cannot be dishonored. But the second case is quite different. As a recognized public charity with a duly encorporated mission and with corresponding public benefits (e.g., in point of taxation) bestowed upon it, a foundation is obligated to treat its would-be beneficiaries as per the merits of their substantiating case for support as per the terms of its charter. So here justice and fairness are definitely part of the picture.

It is also important to distinguish between a claim and an entitlement in relation to matters of distribution. The former—an individual’s claim—is the amount that an individual can justifiably hold to be his or her due in the absence of competing claims upon the limited amount available for distribution. The latter—entitlement—is the individual’s share after all such relevant considerations have been taken into due account. Thus let it be that X dies leaving behind an estate of $600 but also debts to three creditors who are owed $300 each. Then each of these creditors indeed has a claim to $300, but ends up being entitled to only $200 of it. The claim is what the creditor can demand at the start of a process of just division; the entitlement is the claimant’s just due as determined at its end (if it proceeds appropriately). The point is that a claim represents what an individual ought ideally to be given in light of the principles of justice, while that individual’s entitlement is what they ought to be given in the circumstances—which may wind up being something rather different.

But where do claims come from: how are they constituted? This is not a matter of abstract general principle. Instead, the claims of individuals are rooted in the operative ground rules of the society that constitutes their existential context.

The legally mandated inheritance claims of individuals differ from one country (or even state) to another, as do their obligations in matters of taxation or military service. Can you lay claim to the apples that fall on your property from you neighbor’s tree? This is not a matter of universal abstract justice but of the local custom and legal ordinances. Claims generally hinge upon law, usage, and custom rather than upon theoretical general principles of ethics by themselves. The yield of agricultural land is customarily divided 50:50 between the landowner and his tenant farmers. In the case of bankruptcy, the unsecured creditors all get so much on the dollar by proportionate shares. Movie theater seats are usually made available to the public on a first-come first-serve basis but symphony concert seats are generally contracted for. You pay for a restaurant meal after the event but for a movie before. Only with the largest issues of life, liberty, and opportunity are your claims matters of universal human rights at large; for the most part they will depend on the laws and conventions of particular contexts, and reflect the relevant legal, social, and political realities. In the USA, no elector’s fair share of voting power is diminished by the fact that states of small population have just as great representation in the Senate as states of large population do. Nor does the disenfranchisement of under-age voters—which legally sets their voting claims at naught—mean that their exclusion from the voting booth is unfair.

Consider the following situation: A boatload of survivors settle a deserted island. Ground rules of obligations and rights, of duty and ownership are established, by hook or crook, in the resultant community that ultimately establishes a stable order to which people on the whole give acquiescence and acceptance. And then a second boatload of newcomers arrives. How are they to be fitted in? What are their fair shares of rights, privileges, duties, entitlements, and obligations?

There is simply no answer to this question that can be validated on the basis of theoretical general principles. The clock has to be turned back to zero. The historic process of forging a moral order has to be resumed. There is no abstract reason why these newcomers have to be content with what the old order has assigned to them— viz., nothing. There is no abstract reason why the old settlers have to accept the newcomers on the basis of one-person, one-share equality under the old rules. A new order has to be evolved in which people-in-general are willing to acquiesce. And this sort of resolution is not theoretical but developmental. The outcome is not so much a social contract as a social settlement. What people will—and should—get is not so much what they deserve on the basis of theoretical general principles—the world does not, cannot work like that! What they will—and should—get is what the sedimented stabilization of social process attributes to them. Here the only pathway to social practice leads through the brambles of social history. (But, of course, the process will have the coloration of justice only when the people involved are rational—that is, do not, in the absence of good reasons, overreadily acquiesce in arrangements that are contrary to their interests.

Claims are usually created by concrete arrangements rather than abstract principles. Consider the distribution of public offices—the governorship of states, say—in line with elections with the usual winner-take-all allocation. The claims of the less successful candidate—however strong—are set as naught. The candidate who loses to his opponent by a margin of 40:60 does not get to fill the office 40 percent of the time. In effect, the winner of the election has a claim on the office whose weight is decisive in contrast with the loser’s claim of zero weight. In Roman law, all eligible heirs share equally in the case of an intestate decedent. (The reason for this is apparently to be found in the old, original custom of co-ownership of all members of a family in the family property, the paterfamilias being seen rather as the administrator than the owner.³) But most law-systems treat the claims of differently related individuals differently in such a situation. Users of the postal system who have franked their letter feel equally entitled to the delivery service irrespective of whether the letter is going across the town or across the country. But users of the telephone system do not (at least as yet) claim an equality of entitlement irrespective of the distance involved. The cost of subway transportation in New York is distance-invariant, but in London’s underground distance is a key factor in pricing journeys. Assessing the comparative size of claims is less a matter of theory than one of social reality: of positive law, usage, custom, and the like. For example, consider the case of people who pile dirt and debris against a wall that collapses in consequence. Here liability for the costs of repair are allocated proportionately by amount (by weight rather than volume), unless each separate contribution is of itself sufficient to produce collapse, in which case the liability is divided 50:50, irrespective of the weight of contributions.⁴

This comparative size of claims is, of course, a pivotal factor. When goods (and bads) cannot be evaluated and compared with one another—somehow, by hook or crook—then there is no prospect of implementing the idea of fairness in matters of this distribution.⁵

It is, of course, crucial that claims be set in order with objective, or at least neutrally impartial standards. People must be systematically precluded from any prospect of unmerited benefit by unduly exaggerating their claims. The old Roman legal maxim, ex turpi causa non oritur actio, applies here in the construction of “no valid claim arises through an improper act.”

The key idea of procedural fairness lies in the injunction “Treat people differently only in cases where there is a difference that actually makes a difference in some contextually appropriate regard.” For only when this condition is satisfied is there a rationale—a reasonable justification—for that difference in treatment. Of course, that phrase “contextually appropriate regard” takes us into the matter of the purposive context of the procedural domain at issue. A training program can, without unfairness, discriminate between those who have an aptitude for the activity at issue (talent for a sport or a musical instrument) but to discriminate on grounds of race or sex would be inappropriate and thus unfair. The committee awarding a best actor award can—indeed should—discriminate on the basis of quality or performance but the age of those involved will—or should— be irrelevant. A scholarship being awarded “to enhance student-body diversity” can, without unfairness, take race into account, but one that is awarded “to recognize the most improved student” cannot. The purposive context of a distribution represents a critical factor for the issue of procedural fairness. (And, of course, some purposes can be. inherently unfair of themselves—”ethnic cleansing,” for one.)

Claims are accordingly context-dependent. In families, small children establish claims on their parents by need; performance is pretty much irrelevant. In business, on the other hand, employees establish claims on their employers by performance, and here need is pretty much irrelevant. But in each case the nature of the enterprise is the crucial determinant. Families survive and thrive through mutual care; businesses survive and thrive through making profits. Claims generally serve their legitimacy through social arrangements dictated by functional efficacy relative to context.

Whether the societally established practices regarding claims is prudent or socially beneficial and duly recognizant of people’s best interests are certainly legitimate issues. But not whether the socially established practices regarding claims are fair. For claims determine fairness and not the other way around.

One deep-rooted difficulty with respect to fairness arises with the question of who is to count a claimant. In U.S. governance, states are treated as claimants in regard to representation in the Senate but individuals in regard to representation in the House. This sort of thing, of course, leads to complications because custom, law, and social practice once more become operative factors. Accordingly, within any society there are generally established practice institutions, customs, laws, rules, and the like, that determine matters of rights, claims, and entitlements. And these are matters that people have by and large come to terms with and have come to accept as appropriate and just. (One would hope—and to some extent expect— that if this were not so those arrangements would have been changed by now.) A viable society needs stable rules and we should suppose that its members on the whole acquiesce in the prevailing order of things as sufficiently just for practical purposes—not ideal, perhaps, but tolerable and acceptable. At any rate we shall, for our present purposes, assume that it is so.

This sort of thing is unavoidable because where claims are concerned considerations of abstract general principle simply cannot decide everything. Consider an example. Two states share a frontier along a river upon which each needs to draw water for industrial and agricultural use. How is the river water to be divided between them? They turn to an impartial arbitrator to make a fair division. What factor should this arbiter fix on to serve as a proportionality basis: population, irrigation-requiring farmland, water-requiring enterprises, or some combination of the above? And if one state uses its water allocation very efficiently (via purification and recycling facilities, for example), while the other state is wasteful should this be taken into account with one state rewarded and the other penalized? It is impossible to give an answer in general principle here. All that can be said is that the just arbiter will take some not inappropriate account of every significantly relevant factor. And if he fails to do so, he is being not just unfair but unreasonable and, indeed, incompetent.

In any event, the nowadays fashionable idea that claims are grounded in an originating social contract of some sort is highly problematic. There are two ways to construe the idea of such a contract: the historically realistic and the hypothetical. But the former option is spurious: the idea of a social contract as an actual historical eventuation is a mere fiction (apart from a handful of cases such as the launching of the Swiss confederation). And the second option will have to pivot on what the society ought to endorse contractually—what it would, i...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgements
• Preface: Distributive Justice
• 1 Treating Claims Impartially
• 2 Abstract Fairness and Claim Proportionality
• 3 The Liabilities and Assets of Fairness
• 4 Going Beyond Fairness? Subjective Equity and Benevolent Allocation
• 5 Probabilistic Expectations
• 6 Predominantism
• 7 Dividing Credit for Discoveries
• 8 The Pragmatic Rationale of Distribution Principles
• Bibliography
• Index