Principles of Justice and Fairness

By
Michelle Maiese

(Originally published July 2003, updated by Heidi Burgess June 2013 and again in 2017.)
 

Justice Versus Fairness

MBI MOOS LogoCurrent Implications

In the "Core Concepts" unit of our Conflict Fundamentals Massive Open Online Seminar (MOOS), we introduced the notion of "reconciliation" and examined John Paul Lederach's notion that reconciliation occurs through the meeting of 'peace, justice, truth, and mercy." But as becomes very clear in his exercise exploring these ideas, none of them are easy to understand.  More...

In the context of conflict, the terms 'justice' and 'fairness' are often used interchangeably.

Taken in its broader sense, justice is action in accordance with the requirements of some law.[1] Some maintain that justice stems from God's will or command, while others believe that justice is inherent in nature itself. Still others believe that justice consists of rules common to all humanity that emerge out of some sort of consensus. This sort of justice is often thought of as something higher than a society's legal system. It is in those cases where an action seems to violate some universal rule of conduct that we are likely to call it "unjust."

In its narrower sense, justice is fairness. It is action that pays due regard to the proper interests, property, and safety of one's fellows.[2] While justice in the broader sense is often thought of as transcendental, justice as fairness is more context-bound. Parties concerned with fairness typically strive to work out something comfortable and adopt procedures that resemble rules of a game. They work to ensure that people receive their "fair share" of benefits and burdens and adhere to a system of "fair play."

The principles of justice and fairness can be thought of as rules of "fair play" for issues of social justice. Whether they turn out to be grounded in universal laws or ones that are more context-bound, these principles determine the way in which the various types of justice are carried out. For example, principles of distributive justice determine what counts as a "fair share" of particular good, while principles of retributive or restorative justice shape our response to activity that violates a society's rules of "fair play." Social justice requires both that the rules be fair, and also that people play by the rules.

People often frame justice issues in terms of fairness and invoke principles of justice and fairness to explain their satisfaction or dissatisfaction with the organizations they are part of, as well as their state or government.[3] They want institutions to treat them fairly and to operate according to fair rules. What constitutes fair treatment and fair rules is often expressed by a variety of justice principles.

Deserts, Equity, Equality, and Need

The principles of equity, equality, and need are most relevant in the context of distributive justice, but might play a role in a variety of social justice issues.[4] These principles all appeal to the notion of desert, the idea that fair treatment is a matter of giving people what they deserve. In general, people deserve to be rewarded for their effort and productivity, punished for their transgressions, treated as equal persons, and have their basic needs met. However, because these principles may come into conflict, it is often difficult to achieve all of these goals simultaneously.

 

Equity

             Equality

Neutrality

              Consistency

Deserts

           Need

"Fair Share"

           "Fair Play"

Standing

              Trust

According to the principle of equity, a fair economic system is one that distributes goods to individuals in proportion to their input. While input typically comes in the form of productivity, ability or talent might also play a role. People who produce more or better products...either by working harder, or by being more talented, this argument goes, should be paid more for their efforts than should people who produce less. Note that this sort of distribution may not succeed in meeting the needs of all members of society.

In addition, the idea that justice requires the unequal treatment of unequals is in tension with the principle of equality. This principle of egalitarianism suggests that the fairest allocation is one that distributes benefits and burdens equally among all parties. If there are profits of $100,000, and 10 people in the company, the principle of equality would suggest that everyone would get $10,000. This principle, however, ignores differences in effort, talent, and productivity. Also, because people have different needs, an equal initial distribution may not result in an equal outcome.

A principle of need, on the other hand, proposes that we strive for an equal outcome in which all society or group members get what they need. Thus poor people would get more money, and richer people would get less. This principle is sometimes criticized because it does not recognize differences in productive contributions or distinguish between real needs and purported needs.

Some have suggested that equity, equality, and need are not principles adopted for their own sake, but rather ones endorsed to advance some social goal.[5] For example, while equity tends to foster productivity, principles of equality and need tend to stress the importance of positive interpersonal relationships and a sense of belonging among society members.

Impartiality, Consistency, Standing, and Trust

Principles of justice and fairness are also central to procedural, retributive, and restorative justice. Such principles are supposed to ensure procedures that generate unbiased, consistent, and reliable decisions. Here the focus is on carrying out set rules in a fair manner so that a just outcome might be reached. Fair procedures are central to the legitimacy of decisions reached and individuals' acceptance of those decisions.

To ensure fair procedures, both in the context of legal proceedings, as well as in negotiation and mediation, the third party carrying out those procedures must be impartial. This means they must make an honest, unbiased decision based on appropriate information.[6] For example, judges should be impartial, and facilitators should not exhibit any prejudice that gives one party unfair advantages. The rules themselves should also be impartial so that they do not favor some people over others from the outset. 

An unbiased, universally applied procedure, whether it serves to distribute wealth or deliver decisions, can ensure impartiality as well as consistency. The principle of consistency proposes that "the distinction of some versus others should reflect genuine aspects of personal identity rather than extraneous features of the differentiating mechanism itself."[7] In other words, the institutional mechanism in question should treat like cases alike and ensure a level playing field for all parties.

The principle of standing suggests that people value their membership in a group and that societal institutions and decision-making procedures should affirm their status as members.[8] For example, it might follow from this principle that all stakeholders should have a voice in the decision-making process. In particular, disadvantaged members of a group or society should be empowered and given an opportunity to be heard. When decision-making procedures treat people with respect and dignity, they feel affirmed. A central premise of restorative justice, for example, is that those directly affected by the offense should have a voice and representation in the decision-making process regarding the aftermath of the offense--be it punishment and/or restitution.

Related to issues of respect and dignity is the principle of trust. One measure of fairness is whether society members believe that authorities are concerned with their well being and needs. People's judgments of procedural fairness result from perceptions that they have been treated "honestly, openly, and with consideration."[9] If they believe that the authority took their viewpoints into account and tried to treat them fairly, they are more likely to support and engage in the broader social system.

What is So Important about the Principles of Justice

It may seem to be a simple matter of common sense that justice is central to any well-functioning society. However, the question of what justice is, exactly, and how it is achieved are more difficult matters. The principles of justice and fairness point to ideas of fair treatment and "fair play" that should govern all modes of exchange and interaction in a society. They serve as guidelines for carrying out justice.

Not surprisingly, each of the principles of justice and fairness can be applied in a variety of contexts. For example, the principle of desert applies not only to the distribution of wealth, but also to the distribution costs and of punishments. "Environmental justice" is a relatively new term that examines and challenges the social tendency to site noxious facilities (such as landfills or polluting industries) in poor areas, but not affluent areas.  An unjust distribution of punishments is suggested by the statistics that people of color are disproportionately represented in prisons and on death row. (In 2012, people of color made up about 30 percent of the United States’ population, but accounted for 60 percent of those imprisoned.) [10]  Likewise, the principles of impartiality and consistency might apply to both an economic system and a decision-making body. And the principle of need plays a central role in both distributive and restorative justice.

In addition, we can also understand conflict in terms of tension that arises between the different justice principles. Conflict about what is just might be expressed as conflict about which principle of justice should be applied in a given situation or how that principle should be implemented.[11]  The ways of thinking about justice can have conflicting implications, leading to disputes about fairness. For example, some believe that an equitable distribution is the most fair, while others insist that a society's assets should be allocated according to need. A conflict may thus arise surrounding whether to base an economic system on productivity (those who work hardest should earn the most), identity (the rich are "job makers" and thus should get richer) or social welfare (the poor need help more, so the rich should get taxed to help raise the income of the poor). Similarly, some believe that those who violate the rights of others should receive their just deserts (paying a fine or going to prison), while others believe that our focus should be on the needs of victims and offenders (which can be protected through a restorative justice system). 

When principles of justice operate ineffectively or not at all, confidence in and organization's or the society's institutions may be undermined. Citizens or group members may feel alienated and withdraw their commitment to those "unjust" institutions. Or, they may rebel or begin a revolution in order to create new institutions.  This was the essence of the "Arab Spring" uprisings that began in 2010 and continue today (2013); it is also the essence of uprisings that have occurred off and on (though with much less intensity and violence) in Europe over the same time period.  If justice principles are applied effectively, on the other hand, organizations and societies will tend to be more stable and its members will feel satisfied and secure.

Current Implications

In the "Core Concepts" unit of our Conflict Fundamentals Massive Open Online Seminar (MOOS), we introduced the notion of "reconciliation" and examined John Paul Lederach's notion that reconciliation occurs through the meeting of 'peace, justice, truth, and mercy." But as becomes very clear in his exercise exploring these ideas, none of them are easy to understand.  Justice, perhaps, is the most difficult.  

 

Justice is often taken to mean "fairness." But fairness to whom? Determined by whom? In Western cultures, "justice" is usually seen as "just deserts"--or getting what you deserve. If you break a law, you should be punished.  If you work hard, you should be rewarded.  Eastern cultures are more likely to embrace the notion of restorative justice, or restoring order to relationships, rather than punishment for misdeeds.

Different understandings of the meaning of justice underly a lot of the disagreements we see in the United States right now regarding topics such as immigration, taxes, and health care.  What is "fair?" "Who should get what, and why?"  "Who should pay for it?" "What should happen when people break the law (for instance., enter or stay in the US illegally)? 

Understanding the different definitions of justice is a start to sorting out what you think about these questions--and what is likely to create the outcomes you want and need.

We will be exploring the different kinds of justice more later in the MOOS Fundamentals seminar, but this is an ihntroduction, and curious readers can follow the links to more details right now.

-- Heidi Burgess. April 27, 2017

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[1] James. W. Vice, "Neutrality, Justice, and Fairness," (Loyola University Chicago, 1997).

[2] Nicholas Rescher, Distributive Justice. (Washington, D.C.: University Press of America, Inc., 1982), 5. <http://books.google.com/books?id=KCm4QgAACAAJ>. See also Rescher's Fairness: Theory & Practice of Distributive Justice (Transaction Publishers, 2002). <http://www.amazon.com/Fairness-Theory-Practice-Distributive-Justice/dp/0765801108>.

[3] Tom R. Tyler and Maura A. Belliveau, "Tradeoffs in Justice Principles: Definitions of Fairness," in Conflict, Cooperation, and Justice, ed. Barbara B. Bunker and Jeffrey Z. Rubin, (San Francisco: Jossey-Bass Inc. Publishers, 1995), 291. <http://www.amazon.com/Conflict-Cooperation-Justice-Inspired-Deutsch/dp/0787900699>.

[4] For a discussion of justice in a recent, global context, see: Chris Armstrong, Global Distributive Justice: An Introduction (Cambridge University Press, 2012). <http://books.google.com/books?id=LJU0djAZ1osC>.

[5] Robert Folger, Blair H. Sheppard, and Robert T. Buttram, "Equity, Equality, and Need: Three Faces of Social Justice," in Conflict, Cooperation, and Justice, ed. Barbara B. Bunker and Jeffrey Z. Rubin, (San Francisco: Jossey-Bass Inc. Publishers, 1995), 262. <http://www.amazon.com/Conflict-Cooperation-Justice-Inspired-Deutsch/dp/0787900699>.

[6] Folger, Sheppard, and Buttram, 272.

[7] Folger, Sheppard, and Buttram, 272.

[8] Folger, Sheppard, and Buttram, 273.

[9] Tyler and Belliveau, 297.

[10] Kerby, "The Top 10 Most Startling Facts About People of Color and Criminal Justice in the United States: A Look at the Racial Disparities Inherent in Our Nation’s Criminal-Justice System." Center for American Progress.  Published March 13, 2012.  Accessed June 4, 2013 at http://bit.ly/PMeeAG.

[11] Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution: Theory and Practice, ed. Morton Deutsch and Peter Coleman (San Francisco: Jossey-Bass Publishers, Inc., 2000), 54. More recent edition (2011) available here.


Use the following to cite this article:
Maiese, Michelle. "Principles of Justice and Fairness." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/principles-of-justice>.


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