What is a just policy? One that is fair or one that is right?

14 Nov

In his very fine TED talk, Political Philosopher Michael Sandel introduces us to this debate which has been going on for thousands of years.  Consider his example: if I come across a stash of flutes, who among us should get the best one?  What would be a just policy there?  If you say, well, the person who plays the flute the best.  Then you (along with Aristotle) believe that the just policy or outcome is the right one, that is, the one which best promotes the essential purpose or nature of the activity (flutes are intended to be played well).  Of course, if you believe that justice is fairness, then the just policy is one that is not concerned with any alleged nature or essence or purpose of an activity (flute playing).  The only concern is whether the policy is fair, treats people equally.  So, you might favor a first-come first-serve approach, lottery, or a policy where no on gets the good flute.  The point is, no one should be discriminated against when it comes to who gets the best flute (all have an equal chance).

Many public policies can and should be looked at using this sort of moral reasoning.  To be sure, justice as fairness gives the appearance of moral neutrality and indifference, a non-judgmental process.  In our culture, where we have bought in to the canard that you can’t legislate morality, justice as fairness just seems to be the sensible, simple, and least messy approach.  But justice as rightness doesn’t mean that there is never any concern with what is fair.  If there is nothing in the nature or essence or purpose of a thing that would justify discrimination (legislating a moral preference), then just go with the fairer approach.  That is, a law that treats behaviors or activities or choices fairly without doing violence to the nature or right purpose of a thing, is best.  But some situations, going with the fair approach, I would argue, is problematic.  I’m glad, for instance, that Solomon (1 Kings 3) didn’t ultimately apply a justice as fairness principle to the two mothers fighting over custody of a baby (he first pretended to recommend that they split the baby into halves and each mother gets one).  If each gets half the baby, no one could say the policy was unfair.  It certainly would have been simpler and quicker than an arduous process of moral reasoning.  The state (Solomon) could have taken the morally neutral position.  But would it have been right?  The mother who cried out on behalf of the child realized that this may be a fair judgment, but it’s not just.  It is the natural, even sacred right, nature, purpose, of an innocent child to live, to grow, to love and be loved.

So, it doesn’t bother me that a political society refuses to be morally indifferent, neutral, non-judgmental, fair, even-handed between people’s sexual choices.  No society has ever been, precisely because the the consequences of sexual choices and family arrangements have serious consequences for the society as a whole.  In adoption or child custody cases, I wouldn’t want a judge, social worker, child welfare service to be morally indifferent, neutral, fair, or indiscriminate between family and sexual arrangements featuring an in-tact married couple, married swingers, unmarried cohabitors, serially divorced couple, or singles.  I would hope that moral reasoning would be applied, however messy, and public policy would ultimately reflect what is the right thing to do given what is the essential nature and purpose of a family and sacred rights of a child.  I don’t want the judge to do the fair thing (refuse to judge their lifestyles by using a lottery).  I want the judge to do the right thing (determine what is the purpose and ideal nature of a family and inherent rights of a child and then award the child based on that moral reasoning).

Some policy disputes can be understood better if we recognize that this fundamental disagreement is at work behind the scenes.  For instance, same-sex marriage (to which Sandel himself briefly alludes) is such an issue.  There are those who say that it’s simply a matter of treating people fairly or equally.  Justice as fairness, that is.  Well, not so, if there is an inherent nature or purpose to marriage that is properly appreciated in public policy.  If there is, and if society depends on it for its own sake, then we must figure out if being fair or equal to all-comers will do violence to the nature and purpose of marriage itself and the society that depends upon its success.  If there is no essence to marriage or if there is no serious social consequences attached to it, then fairness may be the most reasonable and simple policy solution and we can dispense with the difficulties of moral reasoning, no matter what the individual prejudices of people happen to be.   Incidentally, failing to grasp this may lead one to be blind to fundamental differences between same-sex and interracial marriage as as a matter of policy debate.  The question for those who use the justice as rightness approach is this: which (if either does) disturbs the essential nature and purpose of marriage in socially consequential ways?  If inter-racial marriage does not, then fair treatment between interracial and intra-racial couples is warranted in legal marriage.  Nothing is being upset that is of serious social concern.  But just because one arrangement passes the test of justice as rightness doesn’t mean that all will.

Moral reasoning is a harry process, it won’t always go well, it will sometimes go wrong, it won’t make everyone happy, and not all who engage in it will agree at the end.  But the simplistic unthinking alternative — just be fair — is both morally lazy and socially foolish.

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One Response to “What is a just policy? One that is fair or one that is right?”

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  1. Traditional families tend to produce better students academically; the state has to do something about that injustice « thereformedmind - December 7, 2012

    […] Hollande.  What’s to be done?  Well, applying a justice as fairness doctrine (see my blog post on this), level the playing field by eliminating homework (non-traditional families don’t do […]

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