Here is the full transcript of Australian barrister Julian Burnside’s talk titled “What is Fair and What is Just?” at TEDxSydney (Jul 16, 2015).
Listen to the audio version here:
The Human Instinct for Fairness
Julian Burnside: I don’t know whether to say thank you for that or not. Probably not. I want to talk about fairness. Fairness is a very profound human instinct. Children understand fairness from a very early age. Actually, to understand unfairness, fairness is what is left over when unfairness is got rid of, and everyone understands that. But although we’re very sensitive to unfairness when it affects us, we have an astonishing capacity for tolerating unfairness that affects other people.
It’s easy to overlook the fact that just over a hundred years ago, men argued sincerely that women should not be allowed to vote. It’s easy to overlook the fact that up to about 150 years ago, women in Britain were not allowed to own real estate. It’s easy to overlook the fact that until the early 19th century, people sincerely argued that the maintenance of the slave trade was essential for the economic survival of Britain. It’s easy to overlook some of the appalling things that happened as a result of people’s capacity to tolerate unfairness.
Historical Examples of Tolerated Unfairness
In the late 18th century, a ship called the Zorg set out from the west coast of Africa, headed for Jamaica with a cargo of slaves on board. But it got becalmed and disease broke out and the water supply looked as though it might not be enough for the balance of the voyage, so Captain Collingwood took 133 living slaves and threw them overboard to make sure that they could make the rest of the journey. Now, not surprisingly, this ended up in court in London, not, as you might think, on a charge of mass murder, but on an insurance claim for the value of the lost slaves. I would hope that things like that couldn’t happen these days, although sometimes it’s not easy to be confident.
Understanding Justice: A Thought Experiment
Now, justice is closely allied to fairness, although it is also somewhat elusive in the way it is applied. Justice is something we all value in the same way that we value fairness, but I wonder how much we understand it. Try this thought experiment. Imagine it’s the last day of the school holidays. Mum’s had a pretty difficult time. The kids have been ratty all day. She’s in the kitchen preparing dinner and she hears a crash in the living room. She rushes in. The kids have disappeared, but her best, most valuable, most precious vase is smashed to bits on the hearth.
Scenario one. She knows with the certainty that mothers have that it was the boy who did it. She finds him, punishes him and sends him to bed without dinner. As it happened, he did do it. Scenario two. Having done an undergraduate degree in law, she decides that she should try and discover the facts. So she goes and she asks each of the children in turn for their version of events. She puts all the evidence together as carefully and analytically as she can, utterly dispassionate about it, and she comes to the conclusion it was the boy who did it. She finds him, punishes him and sends him to bed without dinner. As it happens, he didn’t do it.
Now which of those scenarios is closer to your conception of justice? Most people can’t answer that question quickly, and that tells you the ambiguity of justice.
The Price of Systemic Justice
Now justice is very important, of course, and especially it’s important when it is marred by injustice. The justice system inevitably creates pockets of unfairness, but we think that it’s okay because the justice system is calculated to produce the right results more often than not, and we tolerate cases of unfairness because the system itself is worth it. That’s okay as long as you’re not the one who pays the price. If you’re the one who gets a dud result, then you will feel the sting of unfairness more sharply because no one else is prepared to understand why you’re complaining.
Rawls’s Theory of a Just Society
Now justice in society is an even larger and more difficult problem. John Rawls, the American philosopher, came up with a spectacular theory for a just society. Summarising it, it was that a just society would provide for an equal distribution of the opportunity for all the goods that society has to offer on terms of equal opportunity for everyone, but in cases of starting disadvantage then you could compensate for that in what we would call affirmative action. And this, he said, would provide a just society.
The Question of Humiliating Institutions
Now the Israeli philosopher, Avishai Margalit, posed a fascinating and important question. He said, if you have a society which is just in Rawlsian terms, is it possible for that society to tolerate the existence of humiliating institutions? Now, of course, the first thing is to say, well, what does he mean by that? And he meant it very literally and he gives an example. He gives the example of a community in some country where the community is of 100 people, they are all starving, they all need some rice and there is a truck that comes in with 100 bags of rice. Each person should get one bag of rice and that would produce a just Rawlsian distribution.
But he says there are two ways in which the rice can be distributed. One would be to take a bag of rice and hand it to each person in the village. The alternative would be to tip it all off the back of the truck and have a couple of armed guards standing around so that no one tries to take more than one bag. Both, he points out, will lead to a just distribution, satisfying Rawls’s condition, but the second is humiliating.
The Fundamental Importance of Dignity
And he then argues, and it’s a devastatingly effective argument, that the possibility of dignity, the possibility of dignity, is fundamental to a contented and meaningful existence.