Fairness

All around us the special-interest groups are shouting for their preferences, and always on the basis of "fairness." Advocates of economic protectionism call for "fair trade." Advocates of special accommodations for the disabled only want "fair access." The beneficiaries of various government programs scream for their "fair share." And of course, government is endlessly imposing and raising taxes to cover all this "fairness," but always with the assurance that the burden will be "fairly" distributed.

Yet another badly abused word screams under its burden, and I find that I must ride to its rescue.

In the common parlance, to call an arrangement "fair" has always meant that its rules are entirely impersonal, entirely unconcealed, and have been agreed to beforehand by all the affected parties. For one party to claim later that he is exempt from some of the strictures that bind the others, or to impose additional strictures on the others after their agreement is sealed, is visibly and patently unfair.

Children, consumed by their games and competitions with one another, often have a better sense for this elemental fairness than adults do. (Don't tell them.) They know when a rule has been altered after the fact. They know when one of their number is "trying to get away with something." They seldom let it pass.

Nor should we.

Many mighty minds have noted that the critical aspect of law is whether the common man can know it beforehand. His ability to plan and manage his affairs depends on this pre-knowability. As an example, consider the following: If there were no specified speed limits on the roads, but the police were empowered to arrest and fine anyone they felt was driving "too fast," how fast would you drive? How would you cope with the driving decisions of others?

Not only must law be capable of being known beforehand to be fair, but the certainty and scope of its application must be predictable as well. This is the major rationale behind the "equal protection" amendment to the Constitution. If a law is applied to some cases where it's relevant but not to others, it is not law: it is a prosecutor's private tool for acting against those who incur his dislike.

The pre-knowability of law and its application are so critical to elemental fairness that Thomas Aquinas, arguably the preeminent scholar of the Middle Ages, argued that a change in the law was itself a bad thing, because of its tendency to induce doubts in the stability and legitimacy of all law. He exhorted lawgivers to strain to be sure that their proposed changes always compensated for this ineradicable negative, that the gains from them always outweighed the losses from the perturbation of society.

Nor was Aquinas the only one:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. (From the Declaration of Independence)

A society whose laws are unknowable, or the application of whose laws is unknowable, is inherently unfair. When this is the case, the individual's only protection is in straining to be inconspicuous, to go unnoticed by political power.

I hate to be the one to tell you, but that's life in America today. Law has become so luxuriant and complex that virtually every person in the United States is unknowingly in violation of it at all times. Nor can we know when the hammer of the law will descend on our heads. Our courts have made matters worse, as judges have replaced the application of uniform legal principles and written statutes with their own prejudices and preferences.

The crowning irony of the situation is that all the strident cries for "fairness" should be demands for more legislation, more regulation, more government intrusion at every level and turn of events. To be "fair," it seems, we must endure endless changes in the rules that govern our lives, our property, and our dealings with one another, such that law never stabilizes enough to permit us to take a long view. Worse, as the rules increase in number and complexity, the discretion of prosecutors and judges about which ones they'll apply, and when and how, will inevitably increase as well.

"Fair" is the opposite of what its political employers would have us believe. But it's too useful a word to expect that they'll abandon it, so it's up to the rest of us to filter it out as best we can.