Introduction: Reasoning about Fairness and Unfairness in Law, Philosophy, and Political Theory

Richard J. Bernstein Introduction: Reasoning about Fairness and Unfairness in Law, Philosophy, and Political Theory THE PAPERS INCLUDED IN THIS SECTION ARE QUITE DIVERSE, RANGING from Cass Sunstein’s analysis of the conflicting conceptions of proce­ dural fairness to Edna Ullmann-Margalit’s analysis of family fairness. But there are common themes running through these discussions. All stand in the shadow of John Rawls’ powerful and dominant under­ standing of justice as fairness. In different ways, they seek to bring out the complexity of issues of fairness, since fairness involves much more than justice. They exhibit skepticism about the attempt to “tidy up” this complexity with neat philosophical formulations. They open up areas of inquiry to be explored in order to do “justice” to the multi­ farious aspects of fairness, and they indicate ways in which this may be done without oversimplifying the varieties of fairness. Distribution and redistribution have always been central to clari­ fying the meaning of fairness. But Ian Shapiro argues that in order to clarify concrete issues of political distribution we need to pay more attention to the political psychology of publics. He shows this by appeal­ ing to a variety of examples. When George W. Bush in his first presiden­ tial debate with A1 Gore declared that the federal government should social research Vol 73 : No 2 : Summer 2006 571 take no more than a third of anybody’s paycheck, he was appealing to a public sense of fairness. He never gave a reason why one-third is the appropriate amount, and it is difficult to imagine how such a claim could be justified. Nevertheless, the intuitive sense of what the public consid­ ers to be fair is important and relevant in making political decisions. Shapiro gives a more extended example: the history of tithing. The amount of tithing is constrained by people’s perception o f what is right and fair. And although there has been remarkable stability in thinking the proper amount for a tithe is a tenth of one’s income or wealth, there is actually a great deal of empirical variation in the percentage that different economic groups actually contribute to some form of charity. People are willing to recognize their substantial obliga­ tions to others, but they also need to know that their obligations should be kept within manageable limits. Too frequently, the political psychol­ ogy of publics has been ignored in the literature dealing with interna­ tional ethics. Alan Ryan also argues that issues of fairness (and justice) are more complex than suggested by Rawls’ formula—and he seeks to show that fairness has to be distinguished from justice and reasonable­ ness. Allocating benefits and burdens by appealing to objectively good reasons is not always fair. And we frequently make decisions about what is fair without appealing to any reasons. There is no persuasive way of tidying up the many considerations we adduce in determining the fair­ ness as a result. Depending on the context, any one of the following considerations may be primary in deciding what is fair: need, equal­ ity, merit, or desert. But despite the differing criteria of fairness, Ryan thinks it is possible to develop a conception of positive fairness. Edna Ulmann-Margalit takes up the difficult topic of family fairness. She is critical of the way in which Susan Okin has applied Rawls’ conception ofjustice to the family. She develops a notion of the “not-unjust fair family.” Fairness in the family is based on the idea of considerateness and the “family deal”—the adoption by a family of their distribution of domestic burdens and benefits. Although different families will have different family deals that can change over time, she 572 social research argues that there are normative principles for determining fairness in the family. Finally, Cass Sunstein delineates two competing conceptions of legal procedural fairness. The first is embodied in the notion of the rule of law and calls for clear explicit rules laid down in advance that can be applied mechanically to individual cases. The second calls for a high degree of individuation and particularized attention to the distinctive­ ness of individual persons and situations. He illustrates how these have operated in...