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Fairness as Moral and Conceptual Relevance
There are a number of aspects involved in fairness in games and in life in general. Some of it is complicated to articulate correctly, though even young children often intuitively understand when something is unfair. The difficulty is in trying to characterize and explain it. The conventional view is that everyone should have to play by the same rules, laws, principles, policies, etc., but that is not always possible, and more important that does not mean that the rules themselves will be fair. For example if all opportunities for everyone were based on height or alphabetical order, that would be unfair to shorter people or those not at the beginning of the alphabet. Even if everyone is governed by the same rules or principles, if those are not themselves fair, then conforming to them will not necessarily make the activity fair. I want to propose and explain criteria for fairness, starting with sports and games because fairness is an essential part of sports and games that people tend to recognize, and because it is normally less controversial except when, as I will explain further later, 1) a practice or rule does not conform to the ideal of the game or sport, and 2) when official calls conflict with empirically provable factual results that are supposed to determine them.
I think that "fair" means or implies something like "getting, or bestowing, or being given, or having all of something good -- such as an opportunity, reward, advantage, benefit, or a share (or allotment) of something -- that one reasonably deserves or at least that one is not undeserving of having," and that "unfair" means "not getting that," or it means "getting or bestowing a disadvantage or allotment or share of something bad that one does not deserve, often, but not always, in regard to some sort of rules, laws, or general practices, policies, principles, etc."
But there is more to it than that because fairness involves voluntary choices, not simply natural consequences. Suppose a good person gets a terrible disease through no moral fault of anyone. Say a young child dies painfully because of some unexpected genetic aberration or exposure to some natural substance to which they are unexpectedly highly allergic. We might say that is unfair, but that is against some standard of choice by a deity or that if it involves what could be changed at all, it should be, or that insofar as the universe should be fair in how burdens and benefits occur or allotted or allowed, this shouldn't happen. It doesn't mean simply that it is too bad it happened, but that it is wrong in a way that would not happen in a fair, morally governed universe. I will discuss later another meaning of the claim "Life is not always fair," but one meaning is that sometimes it is unfair and nothing can be done about that no matter how much anyone tries, and the other is that bad things sometimes just happen to people who are good people and that is just the way it is by chance or forces we don't understand at the time, and it is no one's fault, and fairness or unfairness has nothing to do with it. In this second sense, saying about some bad occurrence that life is not always fair does not mean this is an instance of something that is unfair, just that you cannot reasonably expect these sorts of things to occur in a way that seems fair, and that if you do expect it, you are mistaken about what sorts of things should be fair or that fairness and unfairness apply to.
At this point, I think the criteria for when something is fair are at least the following:
I want to discuss the first and last criterion together first. Suppose a race was set up between the current 100 meter dash world champion and me (currently age 69, and though healthy and in somewhat decent shape, I am not a world class athlete, and never was even when I was younger, stronger, faster, and more fit than I am now). If it were just for comparison purposes, it would be fair for us to start at the same time and place and to run the same distance, in other words, to run a standard race. Obviously the only questions would not be who would win but would be "how many seconds would he beat me by in terms of the time that we each take to run the full 100 meters?" and "how much distance would he beat me by?" -- meaning when he has finished the hundred meters, how much ground would I have left to cover to get to the finish line?
However, if the idea of the race is to give me a sporting chance to win, based on known or surmised information about our likely speeds, and to "make a contest out of it" by somehow making the outcome in doubt, then I would need either to have a head start in time or in distance; I would need to run a shorter distance than he if we start at the same time, or I would need to start running from our common starting line some number of seconds before he starts, and run the full 100 meters. That would be fair in terms of seeing who would win if he is given a handicap or I am given special benefits, but it would not be fair if we were were trying to determine who is the faster runner. That would put him at an unfair disadvantage because we would not be running under the same rules and conditions. In each of these cases the rules need to be different in order to be relevant to what is being determined and how it is fair to determine it.
But the first, third, and fourth criteria above apply in a very different way too. Suppose a law were passed that your station in life, economically, maritally, educationally, access to health care, and in other ways depended on how well you ran these races, and that the faster people would be given more annual income, more attractive and more desirable mates, better educations, better doctors and better access to them, etc. than slower ones, and the slowest people would be very impoverished indeed. It seems to me there would be something wrong -- something very unfair -- with that, although in one sense everyone at birth would have the same opportunity to excel and everyone is participating by the same rules. But at some point after that, once it became clear who was fast and who was not, the race if run on a frequent periodic basis under the same rules applying to everyone, without compensating handicap allowed, would be basically always in favor of some and always a disadvantage to others. But even before it was known who would win and who would not, the race would be unfair because it does not meet the last criteria, since who is fastest has nothing morally to do with who should have the most -- other than possibly in one case, where faster runners are appreciated and rewarded for their speed and training, and where what they are rewarded for the entertainment value they provide with a reward that does not seriously disadvantage slower, less athletic people in life, but is merely an extra harmless benefit to those who are fastest. I once had a dream where the admission to medical school was based on a test of how much raw flour an applicant could eat in five minutes. Those that ate the most would get into medical school. Such a test, even if administered equally to all applicants would be unfair because it would have nothing to do with measuring or predicting competence to get through medical school or to be a good doctor. That, of course, was a facetious dream, but unfortunately the MedCAT tests at the time were not much more relevant even though not as obviously; they tested learning and recall that had nothing to do with learning medical facts, concepts, and gaining and correctly applying medical understanding. In many cases those students who tests indicated would be the best medical students ended up dropping out of the medical school program, and at least one top flight major medical school was looking for better indicators by which to admit students who would most likely be successful and go on to become good physicians.
Now this applies not just morally and practically but also to what I call "the ideal concept" of the competition. Let me explain with an example. In the 1960's and 70's in college basketball, which was beginning to be of national interest in that period, there was no "shot clock" that required teams to either shoot (and at least hit the rim) or turn the ball over to the other team. But teams could not just stall or hold the ball; there was a rule that a closely guarded player had to pass the ball within five seconds or the ball would be turned over. In order to be able to stall but make passing pretty safe, the "four corners offense" (or "four corners delay" or stall) was perfected by University of North Carolina coach Dean Smith. Four players occupy each corner of the offensive court while a fifth player dribbles around the court, passing as necessary to one of the corner players and then either getting the ball back or temporarily trading out positions with another player. The players need to be good ball handlers and excellent foul shooters, so that fouling them to get the ball back is not a good option. While the four corners can be used to jockey for position to get the safest shots, as in spreading the defense and driving for the basket, that is not its main purpose. If it were that would be acceptable and would be the way basketball was often played in the early years of its popularity. The main purpose is to be used to deny the other team the basketball after the four corners' team gets a lead in the game that the other team will need multiple possessions to overcome. What this does is essentially turn basketball into an elaborate game of keep-away. And while it may be fun for the fans of the team adept at it, it makes basketball pretty dull and frustrating to watch for everyone else. Finally the NCAA adopted a shot clock to prevent teams from being able to stall indefinitely; the offensive team has to shoot within a certain period of time and at least hit the rim for them to be able to retain the ball longer by resetting the clock if and when they get the offensive rebound. The shot clock changed the rules to make them fairer in terms of the fourth criterion: trying to make the rules better represent the spirit of the game or to make playing the game closer to the ideal of what it is supposed to determine -- the better basketball team of that particular game, not the better stalling, keep-away team.
Notice, however, that while in one sense, the new rules (with the shot clock) were the same for everyone, they to some extent penalized the University of North Carolina, because it did away with their basic offensive strategy and negated some of the talents by which the players had been chosen. Smith's teams did very well over the next years, because he was an excellent coach and they were excellent players, but they lost the edge they had by which they could most likely win NCAA championships.
The NCAA, like other major sports leagues comprised of more teams than can all play each other during a season has a different problem with regard to the criteria above -- not everyone can play the same teams to determine the best team by most wins during the season against each other or against the same opponents. So typically what is done is that there are divisions or conferences in which teams within a conference play each other for the most part, as well as playing some teams outside the conference on occasion. Those teams with the best won/loss records in the games they play (sometimes, as in college basketball or football rankings during the regular season, adjusted for degree of difficulty of the opponents) get into some form of end of season playoffs involving individual games or a best of three, five, or seven games, where the loser is eliminated from further contention. Or, as in tennis tournaments, and "match play" golf tournaments, loser elimination starts from the beginning. (There are some sports tournaments where it is more complicated than that, involving brackets, where it might take particular losses or two overall losses to be eliminated.)
There are two problems with this. The first is that a mediocre team can win a weak conference or division to get into the playoffs, while a better team in a stronger conference fails to make the playoffs. "Wild card" rules compensate in part for this by allowing second best teams in a conference to also get into the playoffs. But that does not fully resolve the problem because it does not insure the playoffs really start with the best teams only, since poor teams in weak conferences still get playoff berths.
When the NCAA Basketball Tournament starts, 64 teams then play a series of rounds where a loss means the team is out of the tournament. So the second problem when there are too many teams to all play each other is that since on any given day, upsets can happen, the best teams during the season may not become the tournament champion. Even though, everyone is playing under the same rules, those rules do not always seem the most conducive to getting what is desired -- having the NCAA Tournament champion be reasonably or arguably the best college basketball team that season. So either the tournament champion has to be considered just to be the tournament champion, or some possibly better set of rules needs to govern how the champion is selected, so that it is more consistent with having the best team win. Unfortunately that might conflict with college coursework even more than playing basketball does now anyway.
I can think of two rule changes in the tournament that might make it more conducive to determining the best team. Instead of having preset brackets, they could use the team's regular season rankings to order them, choose the regional venues, and then let the top teams in descending order choose their opponent for the first game, with the opponent choosing from the venue options where the game should be played. That way the top 32 teams would choose their opponents and the bottom 32 would choose the playing sites from among those the NCAA has selected for the tournament. In round 2, the top 16 remaining teams would select their opponents, and those opponents would select the venues. To make this better for fans who travel to the sites for two games, probably the top teams at each site after the first round would choose their opponents from the teams remaining at that site. Second, if a team has already beaten another team during the regular season (and conference tournament), they could be given the point difference to begin the tournament game. If the teams played two or three times during the season, the team that scored the most aggregate points could be given the difference between their aggregate and the other team's aggregate.
So, for example, if Ohio State played Michigan two, or three, times prior to the NCAA basketball tournament and ended up meeting in the tournament, if Ohio State had outscored Michigan by seven points for the three games (regardless of who won each game), they would get seven points to start the tournament game. Possibly one might let them have the seven points at any time they wanted any of them -- it would not have to be to start the game and it might not have to be all at once. That might have momentum or psychological implications during the game that could be interesting to fans. There might be some adjustment however that should be made if 1) a team's good players could not play during a previous game, leading them to get severely beaten because they were not at full strength, and/or if 2) the team with the fewer aggregate points won two of the three games, in which case some predetermined adjustment could be made in the the point differential used to start the tournament game. The basic idea is to handicap the teams that did less well during the regular season in order to try to counteract a slightly off performance during the tournament which would negate all their previous work simply because of bad luck or an uncharacteristic "off" performance in a single game or short series. There will still likely be upsets, but this might make those upsets at least be more fair in terms of having the tournament winner also be the best team, at least at the end of the season.
Football championships could adopt similar kinds of rules, with the point again being to make the playoffs more likely to let the best team for the bulk of the season emerge as the tournament champion also. As of this writing, in the NFL, having a better regular season than a tournament opponent gets a team home field advantage, but that doesn't take into account their head-to-head match-ups. And it is possible that the team with the most season victories lost twice to the team it now faces in the playoffs. If so, home field advantage for the team with those two losses might not be fair, in terms of being conducive to the better team -- between those two -- to win the playoff game.
Also notice that in football, there is some range of ideal balance between offense and defense for fan appeal. Football that always had as little scoring as soccer or hockey would probably leave fans bored. And if the offenses always scored as often as they do in basketball, that would probably take some of the interest out of the game for fans too. Football uses rule changes between seasons to try to have the actual games meet some sort of ideal balance on average between offense and defense. It is okay if a few teams have strong offenses or strong defenses because of talent and coaching, but what you don't want is for offense or defense to be strong just because the rules make it either too easy or too difficult to score for everyone. E.g., when kickers became so strong that kickoff returns became nearly non-existent, robbing the game of that exciting element, leagues moved the kickoff spots back so that most kickers could not routinely kick the ball beyond the endline or so deep into the endzone that runbacks seldom occurred. When field goal attempts were made from further and further away, any missed attempt turned the ball over at the line of scrimmage instead of allowing a touchback at the 20. As offenses or defenses became more dominant, the hashmarks were widened or narrowed to compensate and to counteract it.
One of the interesting rule changes meant to make a sport more fair is the way the NBA draft works (or worked). To try to make each season be more competitive, teams get to choose college players in the draft in reverse order of their previous season record -- with the worst team choosing first, the second worst, second, etc. However, in order to prevent bad teams from losing games purposely at the end of the season in order to secure a high draft choice, there is something of an unbalanced lottery used to offset that. The order of the draft is chosen by a form of lottery in which the teams with the worst records have the most chances choose first or early each round. But having the worst record does not guarantee them first or even an early choice.
Baseball is interesting, as is golf course architecture and remodeling, in that although everyone plays their games or tournaments in the same venue, the venues may favor, and can be designed to favor (or disfavor), certain individual player skills or collective team skills over others. In golf, the advantage of being a long hitter off the tee can be negated by narrowing or bending the fairways at the long distance, or by putting traps or other hazards there. Bending fairways to dogleg toward one side or the other may favor left or right handed players more or those whose swings are more conducive to controlled draws -- shots curved toward the direction the player's back is pointing in his swing -- or fades -- shots curved to the side the player faces in his swing. In baseball, outfields can be shortened or lengthened to favor left or right-handed batters or to give powerful teams more home runs or take home runs away from opposing powerful teams if one's team is less powerful. Infields can be tailored to favor bunting or reduce the chances of a successful bunt. What makes this all fair in baseball is that each team can do it, so that even if it is at a disadvantage in another team's park, it returns the favor by making the other team at a disadvantage in its park. As long as they play each other the same number of times during the season in each others' parks, it is fair, though any particular park or game favors one team slightly over the other.
In short, there are all kinds of rule variations possible in sports to try to make games and/or seasons or tournaments most fair and most conducive to meeting the spirit of the sport. Insofar as all four principle above can be met or approached, they should be, but when there are conflicts among them, decisions have to be made about which of the criteria should take precedence and how the conflicts can be best reduced or resolved.
One of the ways in sports to help insure people get what they deserve, in terms of their performance in the sport (as opposed to their general moral character), is to have instant replay govern all the important elements of the contest, so that if someone hits a really good serve in tennis for an ace, it is not called out, or if someone makes a great catch in football and keeps his feet properly in bounds, it is called a reception and not an incompletion, or if someone hits a genuine home run it is not incorrectly ruled a foul ball. Accuracy in sports calls by officials is important not only for truth and fairness, but, with the advent of worldwide instant replay, so that corrected calls by officials conform to what everyone else has seen and can see. The use of instant replay in sports for official purposes to correct bad calls was prompted by the outrage over clearly seen bad calls that changed the outcome of games. It is not only right that players and teams are given the credit they deserve, but it is only fair. Just knowing what the right call should have been is not sufficient; it is right to officially change the call because that is what is fair to the players and teams and to the sport and its viewers. Miscalling a game intentionally to favor one team or player over another would clearly be unfair, but so is not correcting any obvious miscall, even if it is unintentional.
Applying the Preceding to Life
While there are governmental laws and workplace and other institutional rules, and cultural mores, these are not the same thing as ideal or correct ethical principles that apply to everyone whether they know it or not and that should be able to withstand collective rational scrutiny over time and in any and every place. Fairness is such an ethical principle or ideal, or more accurately, a set of principles or criteria since there are different kinds of unfairness, or different ways something might be fair or unfair. Sports involves a subset of them, but there are criteria for fairness that supersede sports and games, because not everything in life is a game or sport, particularly when you cannot just post a past win or loss and then start over the following game or season as if the results of the previous game or season don't have any bearing on the new one. According to Judaism, possibly Yom Kippur (the Day of Atonement near the first of the new year) lets Jews who have atoned start with a moral clean slate with God for the new year. However it doesn't change one's economic or social circumstances or one's physical state. It is not like starting everything over about one's circumstances.
Moreover, in determining what the rules of a sport ought to be, one has to have some sense of fairness to begin with, which we do for the most part, even with disagreements about particulars. Otherwise any arbitrary rules would just be fair and there would be no sense in saying that a particular rule in a game is (or has become) unfair or is shown to be unfair by a particular event or play for which it gives the clearly intuitively and reasonably wrong conclusion. The same is true in regard to making or amending laws. Laws should be fair in some ethical sense of fairness, not just in the sense that they apply to everyone and were made by a legislature in the correct specified formal way. There can be unfair laws, like the slavery laws prior to the Emancipation Proclamation during the American Civil War and the segregation laws prior to the Civil Rights Act one hundred years later.
Those laws were unfair because they do treat citizens unequally based on morally irrelevant reasons and also because the unequal treatment seriously disadvantages non-whites relative to white people. That fails the first and third criteria above for being fair. It also fails the second and fourth criteria, though not as obviously. It fails the fourth because the purpose of government and law, particularly in America, can reasonably be considered to be what the founders wrote it is in the Preamble to the Constitution: "We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, ordain and establish this Constitution for the United States of America." Treating people differently on the basis of skin color does not promote the general welfare or bestow the blessings of liberty nor establish justice or form a more perfect union. Skin color is morally irrelevant to the kinds of advantages and rewards or discrimination and mistreatment that has been wrongly determined by it. And I think it violates the second criteria because people should have known it was unfair to treat people so horrendously on the basis of something as irrelevant as skin color, even if they didn't know it. While there is a recognized fundamental legal principle that there should be no crime and no punishment without a specified law that has been broken (nullum crimen sine lege, nulla poena sine lege), that is clearly not a justifiable moral principle in all cases. There are some things people ought to know are right or wrong without having to have a prior list of right and wrong acts prescribed for them. Morality is not susceptible to loopholes in the way laws in a formal legal system are. Ignorance of what is obviously morally right is no excuse. Even in regard to sports, as I will argue later, it is wrong to claim that acts, decisions, and official calls cannot be right or wrong without an existing stated specific governing rule that addresses how they are to be made. Sometimes reasoning and external evidence need to be applied to achieve fairness and to make sense.
The above was about how laws and practices that allow one group to have undeserved advantages against another, but the government also sometimes passes laws that give the government itself, or members of it, a wrongful advantage against citizens. Currently, for instance, Texas uses forfeiture laws, intended to take money from drug dealers, to instead confiscate and keep money from normal, law-abiding citizens. In many cases it would cost the citizens as much, or more, in legal fees and court costs, not to mention time away from work, to get the money back. The police are allowed to presume guilt just from people having cash or items of value, such as cell phones or computers, and confiscate it. To get it back you have to initiate court proceedings and prove your innocence. Similarly in a crowded Atlanta traffic courtroom a judge told all the people charged with traffic violations that they could leave now to plead guilty to a registrar in another room and pay the fine for their offense, or they could wait all day to have a hearing (which might not happen that day and they would have to return) and make her take up time for the hearing, and if they did that and were found guilty she would fine them far more. She basically used her office to extort guilty verdicts from people who might have been found innocent or at least not fined much if found guilty with mitigating circumstances. While the rules apply to everyone, they are still unfair because too burdensome for most people -- people without the resources to have a reasonable chance to prevail in the Atlanta courtroom -- those who cannot really afford to fight or to lose, especially if the outcome itself is unlikely to be right. And in Texas, only someone who can represent himself in court can win if one would otherwise have to pay more than one can win just to stand a chance to win in court. Any win in that latter case is a Pyrrhic victory or one that upholds a principle at a cost to you while not really costing the police anything. All they lose if you win is 1) what they didn't have before they stole it from you anyway and wasn't rightfully theirs to begin with, and 2) the time involved in trying to steal it and then having to go to court. And since they might win in court, it is perversely worth the effort for them.
Plus in life outside of sports, character in part determines desert, whether people actually get what they deserve or not. In sports, for the most part people with bad moral character off the playing field can still be successful and even admired for their athletic skills and intensity, and deserve to win the game or championship based on their play. If there is anything unfair about it, it is only that bad people have great skill or ability, and in a morally perfectly just and fair world, they wouldn't because they don't deserve to be successful. Once in a while moral character or acts outside the playing field do apply to punishments in sports, as when players, coaches, and others who have influence on the outcome, cheat or gamble in a sport that then penalizes that or bans them for life for threatening or violating the integrity of the game. When the ban is in some sense retroactive to a time prior to or unrelated to the offense, the fairness and reasonableness of it may be questionable. The case of baseball player Pete Rose comes to mind in that because he bet on baseball games while he was a team manager, after retiring as a player, he is not (still, as of this writing) permitted to be in the Major League Baseball Hall of Fame, even though he is still the player with the most career hits in baseball and is in many ways one of the sport's best and most enthusiastic advocates and examplars of hard work and determination on the playing field. Some sports now are starting to do the same with steroid use or other artificial enhancement techniques or drugs, because they want the sport to represent natural ability in some sense of that phrase, where working out and proper diet are acceptable, but some chemicals are not. For a long time, some athletic competitions excluded professional athletes, but what counted as an amateur athlete seemed to stretch the imagination, given the athletes trained at least as much as any professional might have, and made lots of money from endorsements or other revenues that stemmed from their popularity as successful or otherwise popular athletes. Even in sports, what is fair can become somewhat complicated in terms of relevance to desert.
Even cheating in a sport can be a complicated moral issue instead of being straightforwardly wrong. What makes cheating unfair is that it violates the rules and/or the spirit of the game in a way that gives one team or player an undeserved advantage. Cheating is also wrong because it is not only unfair but it means the cheater is not really competing in the way expected and desired to determine who the winner at some competition in a sport or game (defined by its rules or spirit) should be or is. The cheater is not really competing at the sport people are thinking they are watching. E.g., if one is watching a marathon and someone takes a shortcut that cuts out five miles, then his crossing the finish line first is not his winning a "marathon" but a shorter race. Where cheating gets complicated is when "everyone else does it" and it is known by officials, or should be known by them, that "everyone else" does it, and yet they are allowed to get away with it. That puts anyone who does not cheat in the same way at an undeserved disadvantage, so that if they violate the same rules, they are not then doing so to achieve an unfair advantage, but to remove the burden of the unfair, undeserved disadvantage on them. The proclaimed defense "everyone else is doing it" is not a justification for the practice being right, but is a justification for its being fair to do it under certain conditions -- conditions where one would be at an unfair, undeserved disadvantage if one didn't do it. In such cases, cheating is done to make competing with other cheaters be fair. It is not right for all (or perhaps even for anyone) to do it because then it defeats the purpose of the competition -- seeing who is best at something under certain conditions (which are now violated or ignored). If everyone cheats, the game is changed and though once again fair in the sense that everyone is now following the same (secret) rules, those are not the rules that made the original sport or game interesting or that fans think are operating. So if everyone in a marathon takes the same shortcut, the winner will have won fairly, but will not have won a marathon. If everyone, including fans, knows it is not a marathon, then no harm is done if fans are happy with 21 mile races, just as they are happy with 10k races or 1 mile races or with 100 meter races everyone knows are not marathons.
So if steroids were not harmful (though unfortunately they are) and if fans wanted to watch competitions that allowed for steroid use, it would not be unfair or wrong, but it would make it impossible to compare athletes in that sport with athletes in the sport prior to steroids being allowed. That happens in any sport that allows significant changes which effect performance in the sport -- such as golf or tennis equipment that provides any given player with far more power than the previous equipment. And it happened most famously in baseball when the number of regular (i.e., not including playoff or championship) games per season was increased from 154 to 162, and Roger Maris hit 61 home runs, beating the record of Babe Ruth's 60 home runs in a season. Since those were two different length seasons, there is no good way to compare the feats. Maris took more games but had to play night games that Ruth didn't. The leagues had expanded and some say that meant Maris faced more inferior pitchers who would not have made it in the majors if there were not so many teams needing so many pitchers. There are all kinds of things that change in baseball without changing the basic rules of the game, that make it difficult to compare players even in the same compartment, in this case home run hitting. Whenever players compete under different conditions in any sport, it is not really possible to say how they would have faired against each other under the same conditions. Even golf tournaments on any given day can be kinder to morning or to afternoon players -- if the wind in the morning is drastically different from the wind in the afternoon or if moisture on the greens evaporates to make the greens lightning fast or less able to hold a long approach shot. Any given golf tournament just determines a winner for that tournament, not necessarily the best player. Now if two or more players, play all four rounds of a tournament together under the same playing conditions that don't include changing winds, that might determine who was the best golfer among the four of them for those four days, but that is all it will determine.
There is a popular claim, often invoked when bad things happen to good people (and sometimes when good things happen to bad people) that "Life is not always fair." As pointed out before, that can mean either that the concepts of fairness and unfairness do not apply at all because the event is a natural one in accordance with the laws of physics and/or random chance, or it can mean that by ordinary standards of fairness, if they were to apply to the event, it would not be a fair result, as in saying that it is not fair that the good die young, even though it may be from natural causes. Unfortunately it is invoked dismissively in cases where unfairness could be remedied if people with the ability or authority to remedy it would use it instead of exercising callous indifference to the unfairness. And unfortunately one bogus rationale for allowing unfairness to continue is that it has happened to others in the past and would thus be unfair to them to remedy it for the future. For example, one reason given against disallowing instant replay in baseball is that bad calls have affected players and outcomes for more than one hundred years, and thus are "part of the game." But the whole issue is whether they should continue to be part of the game or not, if preventable. Surely no one would argue that because people died from bacterial infections (such as bacterial pneumonia) before penicillin and other antibiotics were discovered and made available that they should not be used now to save others. It is not unfair to others that they died before help was available, because there was no choice involved. But it is unfair to those who could be saved not to use them, since there then would be choice involved. It is arbitrary withholding of help to those who (usually) are innocent and deserve medical help. The fact that suspected bad calls have stood in the past when there was not conclusive proof they were wrong does not mean bad calls should be allowed to stand when they can be clearly and conclusively shown to be erroneous.
There are all kinds of specific reasons that an act, rule, law, policy, etc. might be argued to be fair or unfair. Those need to be articulated as clearly and logically as possible and shown to meet the correct criteria for fairness or unfairness (either the four criteria in bullets above or the correct, expanded version of such a list) in order to make a rational determination as to whether there is unfairness or not and that fairness or unfairness overrides considerations of amount of good or harm and considerations of rights or any other ethical considerations. For example, it would do more good to kill an innocent healthy person in order to transplant his organs to save five other people who would otherwise die, but it would be wrong because it would violate that person's right to life and because it would be unfair. He doesn't deserve it. Fairness and unfairness are always considerations, but they are not the only ones and are not necessarily definitive of whether an act is right or not. Fair acts are not always right. Once when my two kids were fighting over some silly toy in the back seat of the car, I told them to figure out a way to share it or I would take it away. The six year old said I should just take it away now because if neither of them had it, that would at least be fair. I told her that there were better ways to be fair, where they each had it for an equivalent time, rather than not having it at all. If they could come up with one of those, it would be wrong for me to just take it away from both of them altogether.
Then on top of that, since being fair or unfair is not the only criterion for being right or wrong, one has to show that the fairness or unfairness is sufficient to make the act, law, policy, rule, or practice be right or wrong. The argument enclosed below is an example of the kind of case one needs to make, in this instance concerning what is considered to be "the imperfect perfect game" in Major League Baseball, whereby a clearly mistaken call by the first base umpire on what should have been the last out of the game, cost the pitcher credit for pitching a perfect game. I wrote an unanswered, unheeded letter to the commissioner of baseball (twice, after being assured on the phone his office on two separate occasions that each letter would be answered) pointing out essentially that it would be fair for baseball to right this wrong and unfair for them not to, even though MLB did not have a rule that permitted instant replay to override bad calls. Such a rule should be unnecessary because umpire calls should be based on any definitive evidence, just as a red mark or bruise on a player's arm (or in one famous case, the batter's shoe polish on the ball) is definitive of his being hit by a pitch, even though the umpire did not actually see whether the ball hit the batter or not. MLB had maintained that the first base umpire had sole or ultimate authority over judgment calls like this, as stated in the rules. I claim that conclusive videotape evidence makes that call in this particular case not a judgment call, and thus the umpire does not have sole or ultimate discretion as to whether the batter was safe or out, and that his call should conform to the other, and primary, rule in baseball which describes what makes a batter out at first base on a ground ball. In this case the batter should have been called out because the first baseman had control of the ball with his foot on the base before the runner got there. The fact the umpire couldn't tell this didn't mean it did not happen and that we cannot know it happened. We all do know. Even the umpire admitted after the game, after seeing the replay, that he had made a terrible mistake that he regretted. But according to MLB, that is too late to matter. I say, in this case it is not too late because changing the call would not make any significant difference for that game or the season other than to be fair to the pitcher who deserves credit for having pitched a perfect game.
There are some wrong calls in sports that cannot actually be remedied, for example, the mistake in the October 6, 1990 NCAA football game between the University of Colorado and the University of Missouri. In the final play of that game, Colorado scored a touchdown for the victory, but it was on a mistakenly allowed "fifth down" because the officials on the sidelines had forgot to flip the down marker after one of the plays prior to it. Colorado clearly had five plays to move the ball the requisite distance, for which only four plays are allowed. But the actual fourth play was an intentionally grounded pass to stop the clock after what was labeled the third down. Arguing they would not have done that if they had known it was fourth down, they claimed the next play -- the one on which they scored -- should have counted as the fourth play. Aside from the facts that 1) teams often ground the ball mistakenly on fourth down to stop the clock at the end of a game or half, even when the down marker is correct, because a quarterback focuses on time rather than downs, 2) that Colorado would not have had time to call another set play, and 3) that even football players at the college level should be able to count to four on their own, it was a reasonable argument. But the Big Eight ruled on other grounds, which seem to me even more specious. According to the Associated Press (http://www.nytimes.com/1990/10/09/sports/college-football-colorado-victory-stands.html): "It has been determined that, in accordance with the football playing rules, the allowance of the fifth down to Colorado is not a post-game correctable error,'' Carl James, the Big Eight commissioner, said in a statement. ''The final score in the Colorado-Missouri football game will remain as posted.' " Notice he did not say it was not an error according to the rules; he said it was not a correctable error, which, I think pretty clearly implies it was recognized to be an error. Plus all those who officiated the game were suspended indefinitely for allowing it to happen, presumbably since officials also are expected to be able to count to four, regardless of what the down marker says. And the ruling had significance beyond just the game itself because Colorado finished the season with an official won/loss record that gave it a share of the national championship that year with Georgia Tech.
While the error may not be "correctable", that does not mean it should be ignored and not taken into account in some way. If the rules do not give a specific remedy, then reason outside the rules must and should prevail. I presume that was the idea following the 1989 Major League Baseball World Series change of venue for games following the Loma Prieta earthquake that rendered the San Francisco Giants' stadium unsafe to hold fans. I do not know, and cannot find, a rule in baseball that says how the venue for games should be chosen in event of an uninhabitable stadium or unsafe conditions of the ballpark scheduled according to the rules, etc. Presumably if Big Eight commissioner James had been the commissioner of Major League Baseball, he would have said the World Series should just have gone on in the scheduled ball park if there were no rule to deal with earthquakes or unsafe venues. Even if we accept the argument that Colorado would not have grounded the ball on fourth down without the down marker's being wrong and that they might have had the composure to run the same play they ran on fifth, with the same result, the problem still remains that the official display about the down was not correct.
What we need to know is what would have happened had the officials not messed up, and we cannot know that. Unlike the baseball perfect game case where we know what the outcome would be with the correct call's being made, the Colorado/Missouri game was more the athletic equivalent of a mistrial in a court of law -- which, in trials, has to be redone because the mistrial makes it impossible to know whether the outcome would be like it should be without the problem that caused the mistrial, except that the game or the play could not be played over. In other words, if we are going to concede that the official ruling mistakenly influenced the game, and if we are going to concede that needs to taken into consideration in some way for the final outcome, we just cannot tell how the game would have come out and who would have won it. The game was simply misplayed and the outcome indeterminate. It could not legitimately be ruled simply a straightforward win for either team, because 1) it was won by Colorado under the calls of the officials but 2) won by Missouri under the application of the playing rules, and 3) there is an inescapable, unresolvable conflict in this case between the playing rules and the officiating rules, as there often is in those sports which have calls that do not allow corrections by outside conclusive evidence.
I often ask my students what is required to score a touchdown in football, and they give all the playing rules for scoring a touchdown, such as carrying the ball across the opponent's goal line or catching a pass in the endzone. But that is not what is required to score a touchdown, though it seems it should be and according to the playing rules it is. But since officials have to determine whether that happens or not, and don't always get it right, what you need to do to score a touchdown is to get the referee to signal you have scored with his arms upraised; and to do that you have to have a play that makes him think you got the ball across the goal line or caught it in the endzone. Similarly in basketball, a foul is what the referee signals is a foul, not necessarily where there is the requisite contact or not. Of course, the officials' calls are suppose to accurately reflect, and be in sync, with what happens on the field, but when it isn't, if conclusive outside evidence is not permitted to override the official and let the facts count, then it is only what the officials signal that matters for the outcome of the play or game, not what actually happens. Insofar as videotape or other outside evidence cannot definitively override an official's call, or insofar as it confirms the call, then the call should stand. There should be three answers possible for instant replay review: 1) the call is confirmed by the evidence (in football they say the review confirms the call made on the field), 2) the call stands, whether it is correct or not, no matter which way it went (meaning that it is neither confirmed nor clearly wrong), and 3) the call is overridden and corrected (with what actually happened described and then counted as the corrected official call). In the second case -- where a call stands because there is insufficient evidence to confirm it or override it conclusively -- it makes a difference what the original official call is. For example, if a play in football is called a touchdown, that would stand, and if it were called short of the goal line, that would stand.
Sports face an insurmountable problem in general about fairness when the rules make the calls of officials be definitive about whether the other (i.e., "playing" or "actual") rules have been met or not and there is incontrovertible evidence to the contrary which is not officially allowed, in any specific case. When officials' calls are final and allowed to stand though clearly wrong, then 1) players or teams are not awarded what they deserve, and 2) the intent of the game, as prescribed in the actual playing rules (as opposed to the officiating rules) is not honored. That is not fair to the players and in a sense is not fair to the sport. If officials made wrong calls on purpose, they would clearly be cheating one or both teams and the sport, and that would be unfair. If it happens by accident, it is not cheating, but it is just as unfair when there is conclusive evidence wrong calls accidentally occurred, but that evidence is disallowed for consideration to correct them. This is similar to criminal court cases where evidence is disallowed on formal grounds even though it conclusively shows the defendant's guilt or innocence.
There is one case, somewhat common, where mistaken official calls do not cause overall unfairness: where officials consistently err in the same way for both sides and where players have time to realize and compensate for the errors the officials are making. For example, in baseball, an umpire might have a narrower or more generous strike zone on a given day (or in general), but that affects both teams equally and even though it favors pitchers or batters, it does not generally affect which team loses or wins because it benefits and burdens each equally and in a way that changes the game only slightly, not significantly. Unlike North Carolina's substituting keep-away for basketball, a slightly enlarged top and/or bottom portion of the strike zone does not preclude the game being played from being nevertheless essentially baseball. Normally a narrower or enlarged strike zone in baseball, or basketball officials calling fouls more tightly or "letting them play" is not unfair to either side, but it would be better if the teams knew it before the game started, rather than having to recognize and adjust to it after someone gets two or three fouls called on him/her in the first five minutes of play. It would only be unfair if the baseball umpire is purposefully taking away the skill of one pitcher to "nibble at the corners," knowing the other pitcher does not but relies on power, or if the basketball referee knows that one team plays more aggressively than the other and wants to help or harm their game by how s/he calls fouls. To influence the outcome of the game intentionally like that would be cheating and would be unfair.
Fairness and Unfairness in Four Economic IssuesAs I said at the beginning of this essay, having rules, practices, or policies that apply to everyone does not by itself make those rules, policies, or practices fair. As was shown about determining wages in the work place, knowing whether rules and policies are properly relevant or not to what they govern depends on reasonableness to some extent, and, unfortunately, reasonableness seems to evade both government and private business in many cases. The bureaucracy of corporations seems no more reasonable than the bureaucracy of government, though unreasonable government rules don't seem to benefit anyone, while unreasonable corporate rules do seem to be self-serving. While I gave as an initial example that height and alphabetical order should not govern opportunities about everything, unfortunately rules in both business and in government are accepted as reasonable without being all that dissimilar.
I want to try to apply the above to three business or economic issues, and one related political/legal issue: 1) wage fairness, 2) non-wage income fairness, 3) compensation for risk-taking, and 4) political campaign contributions, appointments, and influencing legislation and regulation. This is not about mere income inequality. Income inequality can be fair, if for example someone works twice as efficiently, or just as efficiently for twice as long, as another person. I want to address four specific fairness issues about incomes, which often lead to income inequality, but it is not the inequality itself that makes the practices or principles governing them unfair. The following applies to what I call an interdependent society or to interdependent work or other activities, by which I mean work or activities that are done in concert with the work or activities of other people, even if there is no planned coordination involved. For example, if you play tennis, you don't likely make your own racket and tennis balls or build the court or construct and put up the net, on net posts you fashioned from iron ore, etc. If you drive to the court, you didn't build the car or construct the roads. What I want to distinguish interdependence from is one's making a living all by oneself or with a few others, who work interdependently together, but apart from the rest of society; e.g., someone or a small group who settled on a frontier and created a home and was able to sustain himself through hunting or clearing farmland and planting and harvesting crops from seeds found and gathered in the wild. Insofar as people work in concert with others, I think the following applies. Insofar as they do not, it is not necessarily unfair that they may thrive and flourish more than some other group. It may be that a successful group will want to charitably and kindly help a less successful group with whom they do not interact, but I don't think they owe it to the less successful group to share the fruit of their work. But in an interdependent society or group, I think that there is an obligation to fairly share the fruits of everyone's labor in at least some commensurate proportion to each persons' contribution of labor. (There may be an additional obligation to share the fruits of the group labor with those among them unable to contribute much because of age or infirmity, but that is a separate issue from fairness of distribution of burdens and benefits or labor and reward.)
1) Fair wages: The first issue is about what determines a fair wage to pay employees. The conventional wisdom and practice is that lower level employees should be paid less than supervisors or management and that CEOs, for example deserve the most money, particularly if they are good managers and help make the company profitable. (I will not at first address the seemingly unfair practice of rewarding CEO's substantially even when the company is failing or not doing well because of wrong, and possibly poor, decisions they made, other than to say it seems to be unfair, but may not be if failure is worth a certain amount of reasonable risk that needs to be encouraged, not discouraged. I will talk about compensating for risk-taking further on.) Managers and CEOs are often said to have more responsibilities than lower level workers, and thus deserve higher compensation. A second way to differentiate wages, even at the same level of work, is that employees with more experience or education are often given higher wages than those with less. The idea there is that more education and/or experience makes a person a more valuable and productive worker and thus deserving of higher compensation. A third rationale for differentiating wages is that it gives employees incentive to improve their skills and training in order to become greater assets to the company and thus more deserving of the higher compensation. A fourth rationale is to give commissions to sales people or bonuses to those who bring in more business through their work. A fifth rationale is that workers who can easily be replaced deserve less pay than those who cannot, because of supply and demand. Accompanying that rationale is one that the workers in low paying jobs voluntarily accepted them at that wage and so the agreements are binding and should be upheld.
None of these rationales holds up under scrutiny. Managers and CEOs do not generally have more responsibility, but simply different ones. In many cases the work they do is no more difficult, and often easier, at least for them, than the work of someone at a much lower level in the company. Insofar as a supervisor has to spend more time doing his/her work or has a lot more work to do, that justifies their making more money, but only because they work harder or more hours, not because their work requires them to be more responsible in some way. A brake assembly person at a car manufacturing plant has much responsibility. A secretary to a CEO may have more work and at least as much, if not, more responsibility keeping up with and keeping track of CEO's work and schedule (for him/her) than the CEO does. Given the recent spate of recalls in different cars for defects known to lead to deaths, clearly design engineers and quality testers have as much or more responsibility for safety of the product and for the brand name integrity and desirability than any CEO. The janitor in an office building has the responsibility to keep it clean, well-maintained, and healthy from a sanitation perspective, and that is a serious responsibility. If it requires full-time effort, it does not entail less responsibility than the CEO has, just different responsibility. Sanitation and cleanliness are important.
More experience (in terms of time-served on the job or in the career) and more education (in terms of schooling or workplace training) do not necessarily equate to having more skill or knowledge or greater ability to do the job better or more efficiently. People don't always learn from school or experience. What is important is one's contribution to the success of the enterprise, in essence one's productivity broadly understood (whether it is contributing ideas or labor or something else intangible that helps the business prosper). And although theoretically having more experience or education should make one more productive, there are too many cases where it does not, to make it reasonable to base someone's productivity or contribution on their level of experience or education. It seems clearly wrong to determine wages by a scale that measures something that at best loosely implies or that is merely somewhat associated with what is important when there are ways available to calculate more directly what is important itself -- productivity and value to the company.
Having more skills can make one more valuable to a company if those skills are employed, but not if only one of those skills is utilized. For example, if one can do carpentry and electrical work for a contracting company, but there is full time work for you doing just carpentry for them, your other skill is of no real help to the company, even if they need electrical work done, if they have to hire someone to do your carpentry while you are doing the electrical work. They may as well just hire an electrician for that day. However, if on occasion, you can do electrical work for them when you don't have any pressing carpentry to do, you will save them money and should earn some of that savings for yourself. And you also make their working more efficient, if you are on a job and some small electrical work is needed -- you are a more valuable employee to them than someone who only can do carpentry. But again, it is your actual skill and your doing the work well, not your amount of training, experience, or education that matters.
A different argument to pay more for people with higher degrees is that they had to spend a lot of money to obtain those degrees because college is very expensive, particularly years of medical training in the case of physicians, and they need to be compensated for that. But there are ways to remedy that, such as paying people to go to school, along with paying their school fees as long as they do well, in return for their charging much less when they graduate and go into the work force. Paying for their education and for their time spent obtaining it would be an investment in their future, that could give them a good living and give us all less expensive services in return. While it is true that medical students, for example, incur huge debts, they generally more than make up for that by the fees they are paid, and continue to charge even after their school loans are repaid. It would be more economical for society to pay the cost of schooling and the cost of living while a student, instead of paying more later to fund lavish lifestyles at much higher than normal hourly or per patient or per task incomes. (I again refer to hourly or task incomes, because some physicians' work is very intense, difficult, and time-consuming; people that work harder or longer should be better compensated, so, as pointed out before, unequal incomes are not in themselves the problem.)
Greater incentive to work one's way up the ladder of the company is often unnecessary, and sometimes counter-productive, as in the Peter Principle -- that people often rise to their level of incompetence, rather than competence. Plus, it tends to attract mercenary people to positions, rather than those who might do the best job because they particularly love the work and are suited for it. Many people will be inclined to seek higher level positions or greater skill positions because they want them or find them more stimulating and challenging. If you could be paid the same for being a janitor or being the boss, would you choose to remain the janitor? Some people might because they would like the janitorial duties better, but, if the pay were the same, most people would tend to prefer the work they find more interesting and worthwhile to them, and that would normally be more advanced or mentally challenging work and work that has more control of how the company operates in certain kinds of ways. People are probably different enough and with different likes, that most jobs in a company would probably be sufficiently staffed even if the hourly pay were the same for all, but that is really an empirical question, so I am just conjecturing at this point. That is in part though, because lots of jobs that are hard work and low pay are still sought by people who could probably do more lucrative and easier work, but they are called to do the more arduous lower paying work because it is more meaningful to them. Or there might be ways to divide up work in a company such that everyone does more than one task -- sharing the ones they all like least or that no one wants to do, so as to get it done with the least inconvenience and distaste to any one person. Money is not the only incentive for improving skills and taking different roles in the company; and it may not even be the most powerful incentive.
If only the people who come into contact with (potential new) customers are able to get bonuses, that is not fair to the people behind the scenes in the business who help make it all possible -- who help with the production, running, and delivery of the products and services that makes a customer want to buy from the company. If a competent secretary and staff helps a salesman be free to make sales he couldn't have made without them, it is not right that he gets the bonus or commission and they get nothing. Insofar as their work helps him make the sale, they should get a commensurate share of the benefits from it. It is my view that insofar as everyone contributes to a company's success, they should all get commensurate reward (payment generally) and recognition for doing so, regardless of their position or job in the company. For example, it seems to me it would be right, and even in his best interest, for a star pro quarterback to share his salary with the offense that protects him and makes his success possible -- in terms of any substantial salary he receives over and above the salaries they make. Or consider that oddly enough, stock holders, might make more than the workers in a company even though they do none of the work. There are some reasons that might be fair particularly if their investments help the company form or keep operating and they are thus making a contribution to its profits, but it seems to me that the janitor who keeps the building clean and sanitary is doing at least as much to make the company successful as the average stockholder is and should be compensated accordingly. That is part of the beauty of having the hard working employees in a company own stock in it. They should prosper as they help the company prosper, though that does not take into account the value of their specific contribution, which may be more than their shareholder earnings.
The fifth rationale is that supply and demand permits, even dictates, that workers who are easily replaced by other people who would happily take their jobs, can and should be paid less than workers in jobs for which the pool of potential labor is not that plentiful. Moreover workers in low-wage jobs voluntarily accepted those jobs at that wage and the agreements should then simply be honored. But supply and demand is not a moral argument, and morally it seems wrong that no matter how much work you do and what profit it earns your employer that you should only be paid the salary that people in dire straights (or who have fewer responsibilities or needs) would accept to do the job. I see no reason to believe that Draconian, Darwinian, Dickensian economics is morally right or fair. Just as it is unfair and wrong to gouge someone by unnecessarily taking advantage of them just because you can when you are in need and there is no one else around who will do the work for less, it is unfair and wrong to take advantage of people by paying them less than their work is worth (in terms of the profit it brings to them) just because there are other people around who will do the work for less because they are in dire straits and need whatever money they can get to survive. If someone helps you earn a lot of money, the amount of that money they deserve as compensation should be commensurate with the proportion of their contribution to helping you earn it. While that may be impossible to calculate precisely, it should not be difficult to get far closer than we do. And it has nothing to do with what someone else would charge you to work for you.
The fact that someone in dire straights, or who thinks s/he doesn't need much money, will accept low pay simply allows any greedy employer to take advantage of his/her distress and is unfair to them because they do not deserve to have their plight used against them in that way. It is an agreement based on duress, even though the employer is not the one causing the duress. The only difference between extortion and this sort of agreement is that the extortionist is threatening to cause the problem to take advantage of the person's not wanting to have it, and the employer is taking advantage of the person's wanting to escape a problem the employer did not cause. While extortion is a threat made in order to coerce an unfair advantage, employing people for lower wages than they deserve because they are desperate is almost as despicable because it uses their circumstances to coerce them for you into agreeing. The moral difference is the same as between charging someone not to drown them and charging them the same amount to easily save them if they were drowning and you were on the shore with a rope you could throw them. While it would be wrong to threaten to drown someone if they didn't pay you anything, because they are not in danger of drowning without you, it is not that much better to refuse to save someone who did get into trouble without you unless they pay you some amount that is incommensurate with the time and effort you have to make to save them. In the latter case, your help is needed for circumstances whose cause you are not to blame, and so it is reasonable you be paid something for any real effort you would have to make, or that you are at least offered a reward for it or a token of appreciation, but you cannot morally refuse to throw someone a rope just because they refuse to pay you a large sum of money. That would be callous and inhumane indifference to the plight and to the life of a fellow human being. And if the person does agree to pay you what you asked, that is a coerced agreement, even though you did not cause the circumstances that coerced them. Just because you do not coerce someone to accept an agreement, that does not mean the agreement itself is not coerced.
Moreover, it seems to me that any agreement made in good faith should be altered or reconsidered if unexpected consequences make the agreement worth far more to one party than to the other. For example suppose someone is producing a film expected to have little box office appeal but that is about an important topic that some actors would like to lend their support. So the actors offer to do the film for very little pay, if any. But then suppose that the film becomes a huge smash hit and makes hundreds of millions of dollars. Just because the actors agreed to take little when no one expected the film to make much money, does not mean the producer should not share the profits generously with them after it does. I think he owes it to them to do so, even if it is not legally required. Likewise you should release someone from an agreement, or renegotiate or amend it, if unexpected and unpredictable circumstances arise that make it impossible or unreasonably expensive for him/her to honor under the terms accepted, and it is affordable for you to do so. While normally people should uphold the agreements they make, it is not wrong to break or modify an agreement from the position of advantage given by a change in circumstances. And so even if the person disadvantaged by the new circumstances cannot rightfully demand that you release him from the agreement, he can reasonably expect that you should. If it will cost you little or nothing in proportion to costing him/her everything or a great deal, or doing him/her much good, you have an obligation to prevent the harm or bring about the good.
There is one more argument given for certain professions deserving more money, that they do more good and take years to train to do, and thus are fair to compensate more. The usual case pointed out are surgeons who take years to train and who do work that is difficult and important, particularly when it involves life and death or overcoming serious illness or disability. The problem, however, is that other professions that pay far less also require training and that medicine has become extorting and preying more than it used to on people's desire to live and be reasonable healthy and able-bodied. Surgery and medical care can bankrupt people to save their lives, because it can cost more than most people will make in a year or be able to save in ten or twenty years. Insurance has grown up around the medical industry, but by making so many people with health insurance be essentially customers with "deep pockets", health care providers then can charge more. To see its extortionist nature, imagine calling the police for an intruder (or the fire department for a fire) and their saying, "We'd be happy to come but it will be $300,000. Do you have police (or fire) care insurance? It should be worth that to you because it is your life that is in the balance here, possibly, and our guys have trained for years, plus this is difficult and dangerous work. Our officers served for four years in the military, in war zones, while you were going to class and partying in college, and then went to the police academy. They work out daily to stay in shape." People would call that shameful and ridiculous, and laws would be passed calling it extortion or bribery, etc. Yet that is what the health care industry has essentially done and though people complain about it, they comply with it anyway.
2) Non-wage fairness: By this I mean differential incomes that make some work or professions extremely lucrative and others not lucrative at all, even though the latter work might be, in some sense, more important than the former. E.g., good athletes, and popular singers and actors can make far, far more money than good nurses, good teachers, coal miners, soldiers, policemen, and firefighters. Cosmetic surgeons in Hollywood can make far more money doing elective cosmetic procedures, such as breast implants, than physicians in Appalachia or than public health doctors, researchers, or medical school teachers -- and I use this particular illustration because the skills and amount of work and training for each group is relatively comparable, and yet the incomes are not commensurate with the value of the medical or health care work done. There are a number of reasons for differential incomes among different professions, but many of them do not meet the criteria for fairness. While it is true that theoretically anyone can train for one of the more lucrative professions and is not barred from it undeservedly, nor coerced into a less profitable one -- thus meeting the first criteria that the same policies apply to everyone -- the third and fourth criteria are often not met in important ways. Sometimes the second criteria is also not met, because even though it is theoretically possible that any child born in poverty or in a ghetto can rise above it, the odds are against it in ways that might or might not be fair depending on what realistic opportunities the child has to develop his/her talents and abilities and to learn. The way in which the third criteria above is not met is that a good teacher would seem to deserve more for their work than a good basketball player who is only playing a game, even if it it entertains people and even if the basketball player is skilled and has worked hard to develop his/her skill. Plus in general the problem is not that a nurse couldn't have chosen to become a stock broker or basketball player, but that the nursing profession itself is far less lucrative even though more important, meaning that anyone who wants to be a good nurse has to accept a lesser income to do it. What is unfair is that nursing pays less than sports or acting, not that people are forced to become nurses and thus have to accept a lower income. It would be understandable that someone who wanted to say, play hopscotch, all day long or golf all day long (and who was just an average golfer) could not make much money doing that, since those activities would have no value to society, and deserve no particular recompense. But nursing, teaching, police, fire, military, coal mining, etc. all have great social value, and yet do not pay very well relative to other professions. If there were not much wealth in society to share among individuals in those professions, it would not be unfair for them to make little. But when there is great wealth available, but it is channeled to those doing less important work, then because people are not earning what they deserve (some too little; some, too much) the system itself is not fair.
But the biggest reason it is unfair is that too often the ways large incomes are earned are not morally relevant to the rewards wealth provides in terms of power, prestige, and material comfort. The fourth criteria is not met in those cases. The reasons are 1) great wealth comes in many cases from the mass production and distribution of products or services, but some professions, such as nursing, police, military, teaching (to a certain extent) cannot mass produce or distribute their services; they are much more individualized by necessity and are more labor intensive. A comedian's, actor's, singer's, work can be broadcast, recorded and re-broadcast at will, and an athlete's performance can be broadcast to millions of viewers at one time -- essentially multiplying their labor by making an hour of it able to serve many recipients or customers (whether the recipients pay directly, such as by buying tickets to movies or sports arenas, or indirectly by buying products advertised that pay for or commission the work). While people individually pay far less for watching sports than for hiring nurses or teachers, collectively they pay far more because the "customer base" or client base is millions of times larger. Because of this, ironically, but sadly, fictional nurses, doctors, police, fire fighters, teachers, soldiers, etc. on TV can make far more money than real ones.
But it is not a nurse's fault that she cannot serve millions of patients at a time; and it is not a basketball player's credit that he can, because he did not invent television, electronic recording, and does not man the cameras or operate the broadcast facilities that make it possible. He does not make the equipment he plays with or create the stadiums or arenas in which he plays. Before sports became popular on television, athletes did not make near the money they do now. Today a player that rides the bench will often make far more money than the best players prior to the popularity of sports on television.
And it was not that long ago that sports was not a money maker even on television. Wide World of Sports was as apt to broadcast rodeo or to broadcast barrel jumping on ice on its weekly show, as it was a college football game. Apart from bowl or other sorts of championship games, there was no real national audience for college football or professional football. It is almost impossible for any young person to imagine now, but in 1961, Eddie Einhorn paid the NCAA $6000 to have the rights to telecast the finals of the NCAA basketball championship between Ohio State and the University of Cincinnati. He was able to sell that only to outlets in Ohio and Kentucky (http://www.nytimes.com/2013/04/07/sports/ncaabasketball/eddie-einhorn-seized-on-broadcasting-college-basketball-games-in-1960.html?pagewanted=all&_r=0). There was no profit for other television stations to broadcast the game. Now, of course, "March Madness" -- the NCAA basketball tournament -- is a hugely profitable business. The success of sports is attributable in large part to pioneers of sports broadcasting such as Roone Arledge, and to the advent of instant replay and slow motion and stop action instant replay. Also to the advent of color television and the mass production of televisions that brought their price within the reach of the average citizen. There were also some star athletes, sometimes with popular charisma as well, along the way who excited greater than normal public interest in their respective sports, sometimes rescuing the sport from near oblivion. Sometimes illustrious rivalries between such athletes magnified fan interest in their sport even more, such as Arnold Palmer, Jack Nicklaus, Gary Player, and Tom Watson in golf and between Larry Bird and Magic Johnson in NBA basketball. All of today's relatively lesser athletes benefit from all of that but did not contribute to it. Hence, in some sense they earn far more than they deserve from just their own efforts even if they have talent and put in years of hard work and effort to succeed. Teachers and nurses also put in years of hard work and effort to succeed, but there is no similar kind of platform for them to offer their work to millions. (That is not quite true of teachers, some of whom could write best selling educational popular books, widely acclaimed and used textbooks, or now produce websites, to teach mass audiences. But that is not open to many teachers, and teaching often still requires one-on-one back and forth dialogue between teacher and student for learning to take place. If you look at the lessons on Khan Academy and the student responses to them, you will see that no matter how well-explained the very short lessons and explanations are, students often don't really understand the points being made. Relatively few people seem either able to learn on their own from self-study or sufficiently interested in doing so, to do it successfully.) Television and now the Internet were thought to be potentially great educational vehicles, and they are. But so are books, and they have been for centuries. And the Internet, though it contains far more easily accessed information and explanations about many more things than you can find in books, still seems to have the same problem teaching difficult conceptual material. It is very difficult to teach that to most people without back and forth dialogue and feedback. Some people have notably learned much difficult material voluntarily on their own from books, but that is far from the norm.
Mass production of things of greater value allows for incomes that come closer to being deserved if the individual sales are not overpriced. Unfortunately they often are overpriced, and there is a certain amount of gouging of necessities and desirable conveniences, and preying on the irrational desires of people for luxury items. Now I understand that these practices can end up aiding a society if the excess profits are spent wisely, which sometimes happens. A larger sum of money which is aggregated or concentrated into the hands of one or a relatively few people with the authority to spend it, it can produce much more good (or harm) than if the money remains dispersed among those in a large population. The buying power of aggregated bundles of money is just much greater than the buying power of disseminated money for certain kinds of projects such as roads, churches, homes, airplane manufacturing plants, etc. Citizens pay taxes (theoretically) so the government can provide goods and services they cannot provide for themselves, such as roads or military. Church members pay to build and maintain sanctuaries. Banks pool people's savings to pay for homes that individuals are able to repay in smaller amounts over longer times. Investors pool their discretionary income to pay for the creation of companies. Bill and Melinda Gates spend some $1 billion per year of profits they make from Microsoft for projects that many consider worthwhile, though whether they are the best way to benefit the people they want to benefit or not could be questioned. If they are spending money to assist countries that it would be more beneficial to teach to assist themselves, as in the old "teach a man to fish" adage rather than having to give him fish each day, then they are wasting valuable resources even though doing good with them. It would be inefficient.
Plus, even if they are spending the money efficiently, they are still basically taxing people who buy Microsoft products by charging them the difference between a decent profit and the more than 50 billion dollars they have amassed for their charity work, and they are spending that money as they see fit, instead of letting their customers choose how it should be spent or letting them choose how to spend it themselves if they had kept it. If and when the day comes that the Internet will efficiently let people make contributions to their own favorite causes, then the causes themselves may be able to amass money without its having to go through a corporation or patron who essentially gets to choose how other people's money is spent once that money is taken from them in a sale unrelated to the charity. I realize that the part of the individual profit on any given product any company sells that becomes a donation may be quite small, but even if so, it essentially takes that amount of money from customers and decides how to spend it -- perhaps supporting something the customers would not approve and possibly even using it to gain favor with legislators so they pass or keep laws and regulations that allow the company to make even more money from the customers, as when Alabama Power purchases box seats to major sporting events in Atlanta and gives tickets to government officials and legislators who regulate them or who could prosecute them. Utilities and other large companies are often major contributors to civic or social causes, which in one sense is perfectly good, but not when executives get personal rewards for their contributions of their customers' money, and not when they fund projects that are not the best use of that money (which could be spent either for a worthier cause or in a more worthwhile way for the cause they choose -- as when they support the arts by grants to particular artists instead of using the money as seed money to get artists and businesses to collaborate to display art that is for sale which the businesses would be using as original decor until it sells and give the artists, and art in general, much wider exposure and publicity to become better self-supporting), or support causes that do harm to the customers or their own businesses, as in using profits from one artist to commission another's work.
It is possible, particularly in the age of the Internet to collect and pool money for specific projects, by seeking donations from many people without having to incur a large expense to do it. But that is only beginning to be done, typically in political campaigns or established charities such as the Red Cross, or the occasional solicitations for expensive surgeries for a child. Theoretically there is probably no reason many government projects could not be funded this way without the need for taxes or legislators having control of the excess funds, or using their control to maintain power over things they have no business controlling. But that will have to await the future, if it is to occur at all.
The point is that if money is used wisely and for the best, aggregating it from business profits that do not undeservedly disadvantage anyone can be right, and even fair, if the people who pay for it also receive commensurate benefit from the pooling of their money, or from the reciprocated similar pooling of money from other people who benefit from the first group's project. Unfortunately aggregated money and profits are not always used for the best, but that is a different moral matter. There is nothing wrong with generating profits that do not unfairly take advantage of anyone and that bring about important public benefits that would otherwise not be able to occur, or occur as well, fairly, and harmlessly, without them.
So it is not the profits of mass production that is what is wrong or unfair. It is the total imbalance between mass producible work and work that has to be individualized so that those who contribute services and products of less value can live in luxury while those who do work of great value have to worry about making ends meet, particularly when huge sums are spent on frivolous things of little value, while many important social needs are unmet, that results in unfairness. It is not unfair in a wealthy interdependent society that some people have more fairly earned luxuries or conveniences than others if all are relatively well off. What would be unfair in an interdependent society is anyone's having luxuries which prevent others from having necessities, or which are created at the expense of the creation and distribution of necessities for others who have contributed to the well-being of the society. John Stuart Mill stated it most eloquently in his Principles of Political Economy when he wrote of Darwinian, Dickensian capitalism of the 19th century in comparison with a voluntary, uncoerced form of communism or collectivism proposed by some (not a future repressive Leninism or Stalinism):
History has shown that this is a false dichotomy and that capitalism can be made more fair, with either compassionate legislation or with collective bargaining or other developments. Capitalism need not be transformed into communism in order to be fair. But the point remains that there is something unfair in an interdependent society when some unnecessarily are impoverished and seriously disadvantaged because others flourish in a lavish way, particularly when the work of those with less is far more important, and makes more of a contribution, than the work of those who thrive.
Payment for risk-taking should be more like charges for insurance using actuarial information that for the most part guarantees that the cost of running the company (paying the insurance company employees), along with the losses paid for by insurance benefits paid to the unlucky, will be paid from the premiums charged to all, particularly those who are lucky not to need to collect benefits. In other words, losses and operating costs are paid out of premiums, not premiums plus an excess for everyone's gambling. Apart from huge unanticipated catastrophes, typically excluded by policies, there is no real gambling in running an insurance business as long as there are sufficient customers to cover any loss from the profits of their premiums -- that is, sufficient customers to cover the actuarial predictions and sufficient customers to cover any probabilistic deviations from the average losses likely to occur, for which there needs to be a potential reserve fund. And the buying of insurance is only gambling to the extent that you might not be the one who incurs the loss. When I rent a car and pay for additional insurance, I usually jokingly ask when I return the car intact if I can have my premium back since I didn't use the insurance. But my premium was not payment for any wreck, since my premium itself would pay for hardly any repair or replacement of damage. It was payment for peace of mind through a guarantee (i.e., insurance) that I would not have to pay more for any wreck I had (particularly that I might have caused). I did receive value for my premium, even though I did not "win" the insurance lottery by having the wreck and "winning" the benefits to pay for the damage. Many relatively small premiums collectively -- not individually -- pay for the large costs of relatively few accidents. If people who did not have accidents had their premiums returned, there would be no money to pay for those accidents which do occur, and "insurance" would be a worthless concept. What you are paying for is the total amount of losses (plus the cost of operating the system), not "risk". The risk involved is only about whether you will be the one involved in an accident or not and need to collect the benefits.
In addition, many people claim that someone who starts a company deserves greater compensation for his/her risk-taking than the employees who work there. But employees may be taking just as much risk to work for someone if there is an opportunity cost or risk in taking the job rather than a different one. And employers or business owners are not always gambling with their own money anyway. They may have borrowed the money and can declare bankruptcy if necessary or they may be working with investors' money and it is the investors who are taking the risk. They deserve compensation from the successful part of the work they fund for the unsuccessful part of the necessary work they have to pay for as part of the investment, but they do not necessarily deserve excessive profits for any work that is successful, if excessive profits unduly harm other people who do not deserve such harm.
There is much more to the ethics of gambling and profits from gambling that I can't go into here, but paying for business risk of failure for attempted important social gains, particularly for necessities, should not entail gambling or paying for it any more than insurance does. It should be about paying for the cost of unsuccessful labor used for reasonable attempts to solve important problems, not about just making a windfall because one gambled on something.
4) Political campaign contributions, appointments, and influencing legislation: While the U.S. Supreme Court, as of this writing, still considers campaign contributions to be the exercise of speech, though apparently bribery of officials is more than just talking to them, and accepting bribes or gouging people by charging excessive prices for things they need is not just listening to people, what is unfair about being able to gain power or to influence legislation through significant expenditures of money, is that power and influence are undeserved by money. Being wealthy doesn't make one's views right or mean they should be law or that they are best for the society. That is the same thing that makes bribery wrong; being wealthy does not make one guiltless of a crime or deserving of special treatment not available to all on the basis of merit as opposed to money. And it doesn't have to be personal gain for the officials; it is just as much bribery if it is a contribution to the public coffers or to some charity the official thinks worthy. If someone is on trial for a crime, a bribe, even in the form of a charitable contribution, does not make them innocent and it is not same thing as the verbal and visual reasoned presentation of the evidence in court. If legislation or regulation of a particular sort is deserved to be passed, it is not because someone or some group with money (particularly if unfairly earned in the first place) is able to curry influence and essentially buy the vote to pass it or the appointment to insure it. Money should be irrelevant to the merit, and not the measure, of appointments, regulations, and legislation. Even fines for convictions of crimes are somewhat unfair in that penalty wrought by a dollar amount paid by a rich person is not the same penalty wrought by that same dollar amount paid by a poor person. A fine that is essentially a wrist slap or chump change for a wealthy corporation or person is essentially not a punishment for a crime at all. If someone deserves punishment, then any monetary fine has to be punishing, not merely payment to get out of real punishment. A fine is not much different from a bribe if it is not punishing to the extent deserved by the wrong act.
Reasonableness and Fairness
I have given an example of unreasonable and unfair corporate practices in the essay "Business Ethics and BlueCross BlueShield of Alabama" (Word doc) (Webpage format) whereby they claim treatments that are clearly in a category that is covered by their policy belong in a different category which is not covered, no matter how far-fetched their explanation for the non-covered category's being more appropriate is; and how appeals are presented in a closed meeting by the person who denied the claim, without the appellant being allowed to be there or present the case for his claim and appeal.
Instances of the same sort of unreasonableness that is unfair in government are easy to find. The state of Alabama, for example, requires a teaching certificate in social sciences to teach what is a philosophy course offered in some of their high schools in the International Baccalaureate (IB) program. But college philosophy courses do not count toward a social science teaching certificate. Hence, a degree in philosophy will not let you teach the course, but a degree that includes no philosophy courses will. When I said to the woman who told me this "That probably makes perfectly good sense to you, doesn't it," she said "Of course. That is what the State Board of Education has set up as the requirement. So, yes, it is reasonable."
Federal rules are no better. In filing for divorce, I sought unsuccessfully to get off my wife's health insurance policy for public employees of the state of Alabama. They said until the divorce was final I was covered even though I didn't wish to be. I began my own Medicare "advantage" plan in March through a different company, since I didn't know when the divorce would be final and didn't want to have a month's waiting period to be enrolled in a new plan and because I wanted my wife not to have to cover me since I was asking for divorce and didn't think it right for her to be paying for my coverage in addition to her own. July 29th I received a letter saying that Medicare was disenrolling me from my own plan because I couldn't have prescription drug coverage through two different plans. They dropped me from the plan I had signed up for and wanted instead of from the plan I didn't want through my wife's employer. The divorce decree was finalized July 21, and so her policy is dropping me as of August 1 from medical coverage, but not from drug coverage -- because there is a "21 day rule" that prohibits drug coverage from being ended less than 21 days before the following month. But there is no such prohibition about ending medical coverage at the end of the month, no matter how soon it comes after the divorce is final. Since I have drug coverage with her company (though I don't want it) until August 31, I cannot have my own Medicare Advantage plan back until September 1, which means I cannot have its medical coverage until then. So my insurance coverage I have had since March will disappear for the month of August and I will not be covered again till September. My insurer's supervising agent sympathized and said sarcastically "Welcome to the wonderful world of insurance regulations and Medicare." The Medicare representative who helped me to newly "enroll" (not remain) in the private "advantage" plan could do nothing to stop the disenrollment, and could do nothing to enroll me as of August 1, instead of September 1. She patiently took care of the enrollment, spending more than an hour with me on the phone as she sought to understand the problem and the facts, and then "research" and apply the solution according to their policies and the law. She was very nice, but the rules restrained her from being as helpful as would have been reasonable.
Private attorneys too often represent an amalgam of the problem with both government and corporate rules that are unfair, even though widely and consistently applied. It is no wonder, that as Timothy Egan points out in the New York Times, lawyers, who are also the leading profession among people that create federal legislation, are ranked by people, according to a Pew survey "at the very bottom in contributing something to society." I suspect that is probably because they create business and civil (as opposed to simple criminal) laws that are too long and complex to understand without training and time to study them (in other words basically without becoming an attorney) and then sell the expertise to the people they made it necessary to hire them in order to be able to successfully operate in this unnecessarily complex and convoluted system. Plus, although there are many attorneys who are decent, kind, understanding, and altruistic, too many are not. The latter often arrogantly and condescendingly depose or cross-examine people they are suing with a self-righteous posture, delivered with undisguised disdain and a contemptuous attitude. They deliver hypocritical moralistic attacks for mercenary gain with an insensitivity that does not fathom or appreciate the complexities of human relationships and ethics, and they earn their living hiding behind the law to exacerbate and exploit the pain from a failed mutual pursuit (such as a business agreement or partnership, or a marriage) and ensuing falling out, using legal intimidation to try to extort victory at all costs, usually considerable ones. As a group, such attorneys are not morally credible in their self-righteous legalism. If the only ethical choice were to be, as attorneys are wont to frame them, between false dichotomies they pose of the possibly mistaken but likely good faith choices they belittle of the people they attack on the one hand for violating unfair or arcane statutory law, and their own form of mercenary formal emotional sadism, I think most sane and normal people would prefer and countenance the former. So it is not strange that such attorneys and the laws and lawmaking that allow them to operate that way, are held in low esteem, if not outright moral contempt.
One small example: I was supposed to pick up a package from my wife's attorney's office. My attorney said it would be at the desk for me. I called first, and it was not, so I called my attorney who called her attorney and then assured me it was now at the front desk of this office building. I went down to pick it up. The woman at the desk said she had nothing for me there. I called my wife's attorney who said she could not speak with me but only with my attorney and that I should call him. So I called the executive assistant of the law firm that the building was housed in. She said they are not affiliated with my wife's attorney even though she is in their building and her unanswered phone rings to their front desk and she supposedly has left a package for me at this front desk. She said I need to talk with my attorney. At this point one feels one is in Wonderland, but I tried one more time to reason with this executive assistant: "Ma'am, I talked with my attorney and he twice has assured me her attorney has said the package is waiting for me at this desk, which you supervise. Calling him a third time is not going to change this. Why don't you call the attorney whose office is in your law firm's building who is clearly in some way affiliated with you, no matter what the legal arrangement is, and find out where this package is, since she won't talk with me?" So, she did, and then found out the package was at the desk but in my attorney's name, not my name, and that I could pick it up. According to the executive assistant, since that took care of it, I should not be upset since there was no real problem -- I got what I came in for. The fact that it took a half hour longer and involved much unnecessary frustration and aggravation, and was just stupid, did not matter to her. All of it was legal and common practice, which was sufficient for her. But that did not make it right, reasonable, or fair.
To a great extent, it seems to me that laws and rules encourage in equal doses blind obedience by martinets on the one hand and legalism in search of loopholes by miscreants on the other. Some rules are meant to prevent chaos and those are worth having -- such as the rule about which side of the street to drive on. But too many other kinds of unnecessary rules and laws pile up on each other so that it is impossible to know them all and too easy to run afoul of one without realizing it, particularly those which make no sense. And the penalties often make no sense for some. In Alabama the fine for not renewing your license tag in time (even if you were not sent a notice and just didn't think about it to remember it) is more than the fine for intentionally running a red light. In grad schools many times, manual of style technical conformity (e.g., having all the commas periods and spaces in the right place in the reference citations or bolding and indenting the right passages) is more important in grading than the truth or reasonableness of the ideas presented.
All those familiar with the TV series M*A*S*H recognize the difference between the Frank Burns(es) of the world and the Hawkeye Pierce(s) and Radar O'Reilly(s). Burns was a stickler for rule-following regardless of the utility or harm done; Pierce and O'Reilly were interested in doing whatever moral it took to get the right and most reasonable result. They were wheeler-dealers but with a good sense of right and wrong; they dealt fast and loose with rules to accomplish significant good when following the rules would do significant harm. Or consider the difference between the Pharisees and Jesus when it came to the purpose of the laws; the Pharisees thought the law was what mattered; Jesus thought it was people that mattered. People should matter more than law, notwithstanding the view of attorneys and lawmakers to the contrary. Laws and rules which are harmful or unfair in any particular circumstances, should be invalid and void in those circumstances. The principle of jury nullification in essence does that though it is decried by attorneys because it basically says that the person does not deserve conviction even if s/he broke the law. It is a jury's referendum on the law under the circumstances of the case, saying or implying that in those circumstances the law is a bad one and deserved to be broken.
It is my view that society and institutions would be better off if instead of being legalistically law- or rule-governed, they were morally governed, and that the principle of "no crime without a law" be abandoned. Decent people know what is right or want to find out before they make mistakes. They should not be punished for reasonable errors, but should be punished for wrongs they do for which they clearly should have known better. For example, in high schools across the country where administrations are disliked, students will scour the student handbook looking for loopholes in the rules so they can do something they know will anger the principle but not be punishable because there is no rule against it. The administration will then add one or more new rules, and the process will begin the following year again. It would be far easier just not to have specific rules, particularly unreasonable and unfair ones, but to just have one rule that says if students do anything wrong that they should have known was wrong, they will be punished accordingly by a punishment commensurate with the wrongdoing and/or the harm they caused.
If this were applied to society as well as to schools, many people would plead they had no way to know what they should have done. While reasonable ignorance is understandable and mitigating, negligent ignorance is not, even if there is no rule or law against the wrongful act. But to prevent wrongful prosecutions, police and prosecutors should be subject to the same policy, so that if they over-zealously, arbitrarily, vindictively, politically, or maliciously prosecute anyone which they should have known better than to do, they should themselves be punished. Yes, there will be disagreements about what is right and wrong and whether someone should have known better, and those will need to be worked out. But surely the way we work disagreements out now, through long drawn-out, expensive legal maneuvers which are not always ethical, and which don't always give the right answer, is not the fairest, most efficient, most economical, most reasonable, or most satisfying and satisfactory way to do it. The ninth amendment to the American Constitution is a wonderful example of trying to make laws conform to morality, not replace it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Many judges consider this amendment weak and veritably meaningless because it is not prescriptive in the way other laws are. But the whole point of the Bill of Rights was to make sure that the language of the main body of the Constitution did not mean or imply government could do anything, or create any kind of law not proscribed by it -- laws which would violate or allow the violation of people's moral rights. However, the problem with enumerating which rights were inviolable is that it could be easy to omit some by mistake or by the inability to imagine all the possible transgressions that might be thought of and then put into action by literalists and legalists. So the ninth amendment wisely points out essentially that "yes, we've enumerated inviolable rights here, but these are not necessarily the only ones; and we are not going to try to list all of them because we don't want people thinking those are the only ones. We make no pretense of claiming to be able to list every right, but think people should be able to identify and make a case for them when any might unexpectedly unfairly be threatened or violated." I think the same sort of reasoning could be applied to all right and wrong acts, using all the considerable number of legal distinctions, principles, and exceptions -- many of them good ones -- that have come to light over the centuries as guidelines, but not as absolute prescriptions.
We don't always need rules and formal mechanisms to compel right behavior, and laws don't prevent criminals from violating them or compel them to do the right thing. They only provide grounds for trying to make punishment seem objective and justified. But once law becomes so complex, esoteric, non-intuitive, and sometimes clearly unfair and/or harmful, it is morally insufficient to justify punishment by pointing out one has broken a law. This is particularly true when people at the highest judiciary levels disagree about interpretations of the laws. A set of unknowable laws, particularly if it includes bad ones, is no more morally objective than just using moral principles, even if there is some disagreement among them. There are reasonable ways to resolve such disagreements. There is no morally good reason to believe all citizens should know all the laws they might possibly transgress, and there is no good reason to deny people fair treatment just because some law or set of laws or rules and regulations prohibits it by mistake. And even if laws were totally clear in their meaning, why should an objective law that is unfair be better than moral principles that have to be discovered and interpreted through reasoning? An arbitrary written standard is not really an objective standard at all. At the current time nearly half the Supreme Court disagrees with the other half on many issues of law, which seems to make law hardly objective, and many people find their rulings and rationales unconvincing. Why not just argue about the morality of issues directly, and try to resolve them reasonably, rather than adversarially arguing which laws are applicable and how they should be interpreted, particularly when the laws involved are clearly or reasonably mistaken or unfair? Law is not, and cannot legitimately be, a substitute for morality and reason.
If we require principles to be written (as we now require laws to be) in order for it to be right to expect them to be obeyed , we could theoretically, but not practically, write down all the right moral principles under which we should all operate. All morality can be stated in words, so it is theoretically possible to write what all those words are. But no given set of words is likely to get it all right at any given time, particularly ahead of time, any more than a keyboard can be made to produce all the possible great literature in the language it is set up for, even though all the great literature possible can be typed on the keyboard, or any more than a piano or orchestra and choir can be made to play all the possibly great music even if all the great music will be able to be performed by them. In a sense all great literature is in the alphabet and all great music is in the notes on a piano keyboard, but that does not mean we can write all the great music or literature by just sitting at the two kinds of keyboards, even if we can appreciate them once they are written.
People normally know how to behave properly and will do so, even when law is not really a factor, for example, when traffic lights are knocked out from a storm, people will take turns and drive courteously for the most part, and often traffic flows better than it does with the lights operating. There will always be some miscreants, such as drivers in and near shopping malls at Christmas who are clearly not the Christians. But everyone recognizes the few selfish people who are doing the wrong things. And sometimes the conditions are unfairly and wrongly set up that encourage selfish bad behavior, as in making people wait hours in a group for a sparse number of items they all want, instead of drawing lots. But most people know how to behave without rules or laws requiring what to do. People in checkout lanes with a full shopping cart at grocery stores will often let a person with few items and money in hand go before them. There are intuitive rationales for when that might be right or wrong, and I have written about the different scenarios in my Introduction to Ethics. The rules do not need to be codified and there don't need to be grocery line police to enforce them. Explanations about what is fair don't need to be created ahead of time in some book that everyone has to memorize; explanations can be stated, evaluated, and refined when they become relevant and needed.
Lines, such as checkout lines at stores or at box offices to movie theaters, offer a microcosm of fairness issues. A friend of mine told me she was in Walmart on one of their busiest days, in a long line to return something. There was one register open at the return counter and when she got to the front of it, another clerk came in and opened a second line, but at that moment a woman who had just entered the return area walked up to it without having spent any time in line. Now I doubt there are any laws or rules governing this kind of thing, but when the customers behind my friend called out "that is unfair," the initial clerk agreed and told the new clerk she needed to wait on the next person who had been in line and that the customer who had just come in needed to get at the end of a line, of which there would then be two, dividing the initial line in half. The person behind my friend, who had been waiting in line, was the person who deserved to be waited on at the newly opened register. Actually bank style lines are the fairest, where everyone waits in a single line and the person at the front goes to the next window or clerk open. That prevents the annoying problem of being in a line that barely moves, while other people who have come in after you finish before you because the line they happened into moved faster. It makes the "first come, first serve" principle of desert operative.
That being said, there are interesting psychological phenomena and fairness issues about checkout lines in many stores today. Two or three issues involve the "10 items or less" lanes. There are utilitarian reasons for having such lanes. They prevent someone's having to wait for people with full shopping carts to pay for just a few items. While that is nice for someone who just wants to "run in and run out" to get a few things, it is unfair to the people who are buying more, and the store is actually being nicer to people who are spending less money with them than to the people who are spending more money with them.
I want to show that the intuitive view of this -- if you are a person with a full cart, is very much like the utilitarian calculus would determine, even though no one would go through that calculus, any more than someone would go through actual calculus to know how to shoot a running jump shot in basketball.
The intuitive view if one is the third or fourth person in the full service line is that, you come up to the checkout counter after them and whiz through the "10 item or less" lane and are gone long before they even get to the register of their lane. That is frustrating and maddening to them. If they could have gone through your lane, even if they let you in front of them, they could be gone long before they will be now.
The utilitarian calculus of this is: suppose that a full cart takes five minutes to ring up and pay for, and your few items will take one minute. If there are two full service lanes open and four people before you with full carts (two in each line), it will take you ten extra minutes to buy your few items. It will take the first person in each line five minutes, and the second person ten minutes to check out. So there will be two people taking 5 minutes to wait/pay/leave, two taking 10 minutes, and you taking 11 minutes. That is a total of 41 person-minutes spent for all of you standing in line.
But if instead, there is a "10 items or less lane" along with the full service lane, then you will get out in 1 minute, saving yourself 10 minutes, but at the cost of adding longer wait times to the third and fourth person in line. The first person in the full lane will get out in 5 minutes, the second person in 10, the third person in 15, and the last one in 20. That will be a total of 51 person-minutes for all five of you. Your saving 10 minutes costs the person who would have been before you -- who is fourth in the full lane -- 10 minutes of additional time in line, and the person in front of them 10 minutes because they had to wait for two more full-cart customers to finish before them than they would have if they were each second in one of the full service lanes -- one of which has been appropriated to serve you. The 10 item or less lane is more efficient to get you all out of the store 10 minutes faster, but at the expense of two people who have to wait ten minutes longer each, who were ready to check out before you were. That is not fair to them.
Now, if there were two full service lanes and the two people in one lane both let you go first, you will still get out in a minute, saving 10 minutes, just as you did in the "10 item or less" lane. And they would each get out in 6 minutes and 11 minutes respectively. That saves each of them 9 minutes from standing in a full service lane while you go through the short lane and it is empty the rest of the time.
The most utilitarian and the fairest way to do this is for grocery stores to have full service lanes only, with people voluntarily sometimes letting a person with a few items only in front of them. That is what people tend to do before there were "10 item or less" lanes, though not always.
The other issue is why 10 items is chosen, or in some stores 8, or 12. Or, if no one is in or approaching the fewer-items lane, why not allow it to be a full service lane at least until someone approaches with a smaller cart-load.
A store near me has a particularly odd check-out set up. They have three lanes that are self-serve, but they are only for "10 items or less" customers. They tend to remain empty lines because not many people get 10 items or fewer. On weekends a lane-Nazi guards the self-service lanes zealously and won't let anyone go through if they have eleven or more items, no matter how empty the self-serve lanes are and how full the full service lanes are. I have not been able to see the logic of that. I may someday ask, but I don't think the question will be appreciated.
Now, obviously no one wants to do the calculus each time, but it is unnecessary if people understand the general idea. And it is also unnecessary because it is intuitively obvious to most decent people that if they have a full cart and you have just one or two items, that letting you go first saves you a lot of time and doesn't cost them much time, but if they go first, they save very little time and cost you a lot. It is only when "10 item or less" lanes become institutionalized that the concept becomes unfair to those who were ready to check out first (and who are spending more at the store).
In other words, as I have given examples of throughout this paper, too many people, particularly those in authority, tend to believe following rules and policies consistently makes a process fair as long as the rules and policies are made by the duly authorized body in the duly authorized way. Some add that as long as the outcome sought occurs eventually then the process is okay no matter how long it takes or what had to be done to achieve it, no matter how inconvenient, troublesome, harmful or even disastrous. That the rules do not make sense or that they are not relevant to helping people have what they deserve, does not matter. Rules are rules, for these people and for them, that is enough. But that is not enough. The rules have to be fair and reasonable too if what they govern is going to be fair.
As I wrote in "Religion, Morality, Secular Ideals, and Ethics Education,"
[H]istory is filled with wrong policies and practices; that is often why we pass new laws and amend old ones. The claim of innocence by virtue of following standard practice was one of the attempted justifications offered by former Vice President Spiro Agnew, when he was indicted on charges of corruption involving bribes and kickbacks as governor of Maryland. He said he had not done anything different from former governors or other officials in other states. The idea that using public office in the ways he did for private gain could be wrong no matter who or how many people have done it, or for how long, seemed to have escaped him. Agnew was disbarred after pleading no contest to the charges against him, and he later had to repay some quarter of a million dollars he was accused of having taken while in office. Citing his lack of moral understanding,the Maryland Court of Appeals said in prohibiting former vice president Spiro Agnew from practicing law: “It is difficult to feel compassion for an attorney who is so morally obtuse that he consciously cheats for his own pecuniary gain that government he has sworn to serve, completely disregards the words of the oath he uttered when admitted to the bar, and absolutely fails to perceive his professional duty to act honestly in all matters.” (http://news.google.com/newspapers?nid=1338&dat=19740502&id=mZBYAAAAIBAJ&sjid=X_gDAAAAIBAJ&pg=7254,1018542)
The Office of
the Commissioner of Baseball
Dear Commissioner Selig:
I would like to
suggest that a reasonable interpretation of the current rules of baseball would
allow Armando Galarraga’s performance to officially count as a perfect
game. The two applicable rules for this
case are MLB official rules 6.05 j and 9.02a
As in any sport that requires an official umpire, referee, or judge to determine whether a play on the field fulfills the requirements of a rule, it is possible for the official’s call to be mistaken about the facts. Rule 6.05 (j) clearly states what makes a runner be “out” at first in the case of a ground ball: he is out when “he or first base is tagged before he touches first base”.
That occurred in the 9th inning (first) two out play in the game under question. Under this rule, which is the defining rule of what an out is, or is supposed to be, the runner was out and the game was over.
However, the conflicting rule is 9.02 (a) which makes the judgment of whether rule 6.05 (j) has been met during the play up to the umpire, in this case the first base umpire.
Now, it makes sense in sports that “judgment calls” be in the sole hands of a designated official or else there would be disagreements and chaos about scoring and who really won or not, etc. For decades and over a century many sports operated under these kinds of potentially conflicting rules so that the official was supposed to call a play according to the “ideal” rule, but yet if s/he didn’t, the official’s call was the actual, recorded call whether it conformed to the ideal rule or not. Fans and players often argued, but normally there was no way to prove objectively and without bias or human error that the official made a mistake, and, as people say now, possible human error by officials was taken to be part of those sports, and one presumed that the errors evened out in some way for or against a team over the course of a game or a season. If an official was found to be cheating or making intentional bad calls against one team in order to affect the outcome of the game, the sports leagues would deal with that in some form or other.
I submit to you for your consideration that when there is clear videotape (“forensic”) evidence of the facts of a play, that removes it from being a “judgment” call, and therefore the call is not solely up to the judgment of the first base umpire, and rule 9.02 (a) does not apply; only rule 6.05 (j) does.
What definitive video tape recordings of plays do in sports is to take the judgment out of some calls, so that the pure rule can apply unfiltered through the eyes of an umpire or anyone else. And the problem for sports that do not recognize definitive videotape evidence is that then everyone in America knows whether the pure rule was met or not except for the umpire/referee. That is why sports have to use video tape evidence or lose credibility.
Unfortunately different sports have (incorrect) formal or procedural rules about how to use videotape evidence, so that in NFL football for example, you still have problems when coaches don’t challenge a bad call or when they don’t have any challenges left to use for a bad call. So even though the NFL has a video replay rule, they have the wrong one, and bad calls are still made and everyone knows that except the refs. The most reasonable rule is to have someone monitor the TV broadcasts so that the second any instant replay shows the whole viewing audience a call was clearly mistaken, play can be stopped and the call corrected. After all, what you want is for calls to conform to what happened and to what every fan clearly sees happened.
Those instant replays that are not definitive or clear cut then allow the call to remain in the realm of “judgment” and the official whose judgment counts (as by rule 9.02 a) is the person whose call formally counts.
Now I know there have been past errors of judgment that cannot be corrected without causing all kinds of undesirable consequences. And that is a real problem for bad calls that are not detected until long after other plays have ensued based on the bad call. But this game is not one where there are any serious consequences for reversing the call, other than to grant the pitcher what he duly earned, a perfect game. It is not that the wrong team won based on the bad call or that momentum changed, etc. This should have been the last play of the game, and recognizing it as that does not change any other consequence for this season’s play or standings. It changes the batting average of the batter by a miniscule amount, and it would remove the real last out from being an out, thus affecting that batter’s average by a miniscule amount also. Otherwise there are no (serious) consequences for changing the ruling at this late date. (Return to text.)
Rule 9.02: (a) Any umpire’s decision which involves judgment, such as, but not limited to, whether a batted ball is fair or foul, whether a pitch is a strike or a ball, or whether a runner is safe or out, is final. No player, manager, coach or substitute shall object to any such judgment decisions.
Rule 6.05: A batter is out when ... (j) After a third strike or after he hits a fair ball, he or first base is tagged before he touches first base; (Return to text in the letter.)