We cannot live in peace without Law. And though law cannot be perfect, it may be just if it is written in ignorance of the identity of the claimants and applied equally to all. Then it is a possession not only of the claimants but of the society, which may now base its actions upon a reasonable assumption of the law’s treatment.
But ‘fairness’ is not only a nonlegal but an antilegal process, for it deals not with universally applicable principles and strictures, but with specific cases, responding to the perceived or proclaimed needs of individual claimants, and their desire for extralegal preference. And it could be said to substitute fairness (a determination which must always be subjective) for justice (the application of the legislated will of the electorate), is to enshrine greed — the greed, in this case, not for wealth, but for preference.
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Assuming the market is free from fraud, violence, misrepresentation, and predation, the economic failure or success of any individual is measured by what he can obtain in willing exchange—fairness being a state of affairs that is presupposed in the assumption. Everyone, according to any moral code I would respect, is entitled to fairness in the sense of no special privilege to anyone and open opportunity for all; no one is entitled to what is implied by a fair price, a fair wage, a fair salary, a fair rent, or a fair profit. In market terms, one is entitled to what others will offer in willing exchange. That is all!
It is not always recognized that to unction best, morality should sometimes appear unfair, like most worldly outcomes. The craving for perfect fairness causes a lot of terrible problems in system function. Some systems should be made deliberately unfair to individuals because they'll be fairer on on average for all of us. Thus, there can be virtue in apparent non-fairness.
How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts the human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.
The genuflection toward 'fairness' is a familiar newsroom piety, in practice the excuse for a good deal of autopilot reporting and lazy thinking but in theory a benign ideal. In Washington, however, a community in which the management of news has become the single overriding preoccupation of the core industry, what 'fairness' has often come to mean is a scrupulous passivity, an agreement to cover the story not as it is occurring but as it is presented, which is to say as it is manufactured.
An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that is willing to follow itself. This is sameness made legal.
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