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. And if you do not have the possibility of a dignified existence then all of the other goods in society lose their point. He says, and I’m sorry I have to quote, “the distribution may be both efficient and just yet still humiliating. The claim that there can be bad manners in a just society may seem petty, confusing the major issue of ethics with the minor one of etiquette. But it’s not petty. It reflects an old fear that justice may lack compassion and might even be an expression of vindictiveness.”
Now if you consider the application of Rawls’s theory to any society, his meaning runs very deep. Unfortunately we think that we run a just society and yet we tolerate humiliating institutions and it’s not difficult to find them. The treatment of Aborigines in our country over the last century has been a profound example. The treatment of refugees in our country now is a living example and one which has occupied a lot of my time.
Now I’m passionate about justice and when I stumbled into the area of refugee issues and discovered, to my horror, that refugees don’t commit any offence but they get locked up indefinitely and they get locked up in dreadful conditions and they gradually lose hope. And when hope runs out they fall into despair and start to harm themselves and try to kill themselves and sew their lips together and so on. All of these things are deeply distressing to anyone who is concerned with justice because the detention of innocent human beings is on any view of things a humiliating institution which drives people into despair.
I thought when I stumbled into the area that perhaps getting the truth across to the public would resolve the problem. It turns out I was wrong about that. It took a little longer. Now although I’m passionate about justice I sometimes wonder whether my resolve might have given way until I got a call, a telephone call that changed my life.
A Life-Changing Call: The Story of a Refugee Family
Back story to the call, a family fled Iran in terrible circumstances. They belonged to a group who were regarded as unclean and suffered the consequences of that assessment. They fled Iran in terrible circumstances. One night mum and dad and two young girls who at the relevant time were seven years old and eleven years old. They were locked up in Woomera Detention Centre and after about fifteen months they were all doing it hard but especially the eleven year old girl who had completely given up. She was assessed by a visiting psychiatrist as being at extreme risk of harm. It was urged on the department that the family should be moved to a metropolitan detention centre so this kid could get daily clinical help which she needed.
Eventually they were moved to Maribyrnong in the western suburbs of Melbourne and there, although the reason for moving them was that that child needed daily psychiatric help, for the first eighteen days of their stay in Maribyrnong nobody came to see her. Not a psychiatrist, not a doctor, not a nurse, not a
clinician, not a social worker, nobody at all. And on the Sunday night in May of 2002 while her mother and father and her young sister were off having their dinner, this little kid took a bed sheet and hanged herself alone in their cell in Maribyrnong Detention Centre. When the family came back and found her still strangling and she was taken down, she and her mother were taken to the nearby general hospital with two guards so there was still a matter of legal analysis in immigration detention. And the lawyer who’d been looking after their visa application heard about it and went to the hospital at nine o’clock that night, said good day to the guards, said he just wanted to speak to the mother to see what they could do to help. And the guards said no, you’re not allowed to see them because lawyers visiting hours in immigration detention are nine to five and they sent him away.
He then rang me at home and told me the story. And that telephone call changed everything for me. It led me to being I guess a public critic of the mistreatment of refugees. It’s been not easy, it’s not an easy thing actually for a timid little commercial lawyer to be loathed by many people in the community to receive death threats because I’m trying to stand up for people who are being mistreated by us.
The Worsening Situation
And so now, 13 years after that telephone call, I find us in a circumstance where things are getting worse and worse it seems by the day. In fact I never thought I would say this but the combination of Abbott and Morrison made me wish that we could have Howard and Ruddock back. But please don’t quote me.
But my resolution firmed one evening when Kate and I were at a glittering social function and the wife of a very senior, very respected colleague came up to me and said rather archly, “Do you think it’s appropriate that a member of the bar should speak publicly about these matters?” And with more wit than preparation I said, “Well do you think it’s appropriate to know about these matters and remain silent?” She hasn’t spoken to me since.
A Call to Action
But while I suspect that this struggle will not end in my lifetime, I have at least the comfort of knowing that with my last breath I will be able to say at least I tried instead of I wish I had done something. And it occurred to me as I was thinking about what to talk about this afternoon, all of you can do the same. All of you can have the same comfort in knowing that you can with your last breath say at least I tried. And all you have to do is be passionate about justice, to stand up against injustice whenever you see it, and say that whatever you do, in whatever area you live, make sure you stand up for justice. Stand up for justice and never ever give up. Thank you.
