(Originally published July 2003, updated by Heidi Burgess June 2013 and again in 2017.)
Justice Versus Fairness
In the "Core Concepts" unit of our Conflict Fundamentals Massive Open Online Seminar (MOOS), we introduced the notion of "reconciliation" and examined John Paul Lederach's notion that reconciliation occurs through the meeting of 'peace, justice, truth, and mercy." But as becomes very clear in his exercise exploring these ideas, none of them are easy to understand. More...
In the context of conflict, the terms 'justice' and 'fairness' are often used interchangeably.
Taken in its broader sense, justice is action in accordance with the requirements of some law. Some maintain that justice stems from God's will or command, while others believe that justice is inherent in nature itself. Still others believe that justice consists of rules common to all humanity that emerge out of some sort of consensus. This sort of justice is often thought of as something higher than a society's legal system. It is in those cases where an action seems to violate some universal rule of conduct that we are likely to call it "unjust."
In its narrower sense, justice is fairness. It is action that pays due regard to the proper interests, property, and safety of one's fellows. While justice in the broader sense is often thought of as transcendental, justice as fairness is more context-bound. Parties concerned with fairness typically strive to work out something comfortable and adopt procedures that resemble rules of a game. They work to ensure that people receive their "fair share" of benefits and burdens and adhere to a system of "fair play."
The principles of justice and fairness can be thought of as rules of "fair play" for issues of social justice. Whether they turn out to be grounded in universal laws or ones that are more context-bound, these principles determine the way in which the various types of justice are carried out. For example, principles of distributive justice determine what counts as a "fair share" of particular good, while principles of retributive or restorative justice shape our response to activity that violates a society's rules of "fair play." Social justice requires both that the rules be fair, and also that people play by the rules.
People often frame justice issues in terms of fairness and invoke principles of justice and fairness to explain their satisfaction or dissatisfaction with the organizations they are part of, as well as their state or government. They want institutions to treat them fairly and to operate according to fair rules. What constitutes fair treatment and fair rules is often expressed by a variety of justice principles.
Deserts, Equity, Equality, and Need
The principles of equity, equality, and need are most relevant in the context of distributive justice, but might play a role in a variety of social justice issues. These principles all appeal to the notion of desert, the idea that fair treatment is a matter of giving people what they deserve. In general, people deserve to be rewarded for their effort and productivity, punished for their transgressions, treated as equal persons, and have their basic needs met. However, because these principles may come into conflict, it is often difficult to achieve all of these goals simultaneously.
According to the principle of equity, a fair economic system is one that distributes goods to individuals in proportion to their input. While input typically comes in the form of productivity, ability or talent might also play a role. People who produce more or better products...either by working harder, or by being more talented, this argument goes, should be paid more for their efforts than should people who produce less. Note that this sort of distribution may not succeed in meeting the needs of all members of society.
In addition, the idea that justice requires the unequal treatment of unequals is in tension with the principle of equality. This principle of egalitarianism suggests that the fairest allocation is one that distributes benefits and burdens equally among all parties. If there are profits of $100,000, and 10 people in the company, the principle of equality would suggest that everyone would get $10,000. This principle, however, ignores differences in effort, talent, and productivity. Also, because people have different needs, an equal initial distribution may not result in an equal outcome.
A principle of need, on the other hand, proposes that we strive for an equal outcome in which all society or group members get what they need. Thus poor people would get more money, and richer people would get less. This principle is sometimes criticized because it does not recognize differences in productive contributions or distinguish between real needs and purported needs.
Some have suggested that equity, equality, and need are not principles adopted for their own sake, but rather ones endorsed to advance some social goal. For example, while equity tends to foster productivity, principles of equality and need tend to stress the importance of positive interpersonal relationships and a sense of belonging among society members.
Impartiality, Consistency, Standing, and Trust
Principles of justice and fairness are also central to procedural, retributive, and restorative justice. Such principles are supposed to ensure procedures that generate unbiased, consistent, and reliable decisions. Here the focus is on carrying out set rules in a fair manner so that a just outcome might be reached. Fair procedures are central to the legitimacy of decisions reached and individuals' acceptance of those decisions.
To ensure fair procedures, both in the context of legal proceedings, as well as in negotiation and mediation, the third party carrying out those procedures must be impartial. This means they must make an honest, unbiased decision based on appropriate information. For example, judges should be impartial, and facilitators should not exhibit any prejudice that gives one party unfair advantages. The rules themselves should also be impartial so that they do not favor some people over others from the outset.
An unbiased, universally applied procedure, whether it serves to distribute wealth or deliver decisions, can ensure impartiality as well as consistency. The principle of consistency proposes that "the distinction of some versus others should reflect genuine aspects of personal identity rather than extraneous features of the differentiating mechanism itself." In other words, the institutional mechanism in question should treat like cases alike and ensure a level playing field for all parties.
The principle of standing suggests that people value their membership in a group and that societal institutions and decision-making procedures should affirm their status as members. For example, it might follow from this principle that all stakeholders should have a voice in the decision-making process. In particular, disadvantaged members of a group or society should be empowered and given an opportunity to be heard. When decision-making procedures treat people with respect and dignity, they feel affirmed. A central premise of restorative justice, for example, is that those directly affected by the offense should have a voice and representation in the decision-making process regarding the aftermath of the offense--be it punishment and/or restitution.
Related to issues of respect and dignity is the principle of trust. One measure of fairness is whether society members believe that authorities are concerned with their well being and needs. People's judgments of procedural fairness result from perceptions that they have been treated "honestly, openly, and with consideration." If they believe that the authority took their viewpoints into account and tried to treat them fairly, they are more likely to support and engage in the broader social system.
What is So Important about the Principles of Justice
It may seem to be a simple matter of common sense that justice is central to any well-functioning society. However, the question of what justice is, exactly, and how it is achieved are more difficult matters. The principles of justice and fairness point to ideas of fair treatment and "fair play" that should govern all modes of exchange and interaction in a society. They serve as guidelines for carrying out justice.
Not surprisingly, each of the principles of justice and fairness can be applied in a variety of contexts. For example, the principle of desert applies not only to the distribution of wealth, but also to the distribution costs and of punishments. "Environmental justice" is a relatively new term that examines and challenges the social tendency to site noxious facilities (such as landfills or polluting industries) in poor areas, but not affluent areas. An unjust distribution of punishments is suggested by the statistics that people of color are disproportionately represented in prisons and on death row. (In 2012, people of color made up about 30 percent of the United States’ population, but accounted for 60 percent of those imprisoned.)  Likewise, the principles of impartiality and consistency might apply to both an economic system and a decision-making body. And the principle of need plays a central role in both distributive and restorative justice.
In addition, we can also understand conflict in terms of tension that arises between the different justice principles. Conflict about what is just might be expressed as conflict about which principle of justice should be applied in a given situation or how that principle should be implemented. The ways of thinking about justice can have conflicting implications, leading to disputes about fairness. For example, some believe that an equitable distribution is the most fair, while others insist that a society's assets should be allocated according to need. A conflict may thus arise surrounding whether to base an economic system on productivity (those who work hardest should earn the most), identity (the rich are "job makers" and thus should get richer) or social welfare (the poor need help more, so the rich should get taxed to help raise the income of the poor). Similarly, some believe that those who violate the rights of others should receive their just deserts (paying a fine or going to prison), while others believe that our focus should be on the needs of victims and offenders (which can be protected through a restorative justice system).
When principles of justice operate ineffectively or not at all, confidence in and organization's or the society's institutions may be undermined. Citizens or group members may feel alienated and withdraw their commitment to those "unjust" institutions. Or, they may rebel or begin a revolution in order to create new institutions. This was the essence of the "Arab Spring" uprisings that began in 2010 and continue today (2013); it is also the essence of uprisings that have occurred off and on (though with much less intensity and violence) in Europe over the same time period. If justice principles are applied effectively, on the other hand, organizations and societies will tend to be more stable and its members will feel satisfied and secure.
In the "Core Concepts" unit of our Conflict Fundamentals Massive Open Online Seminar (MOOS), we introduced the notion of "reconciliation" and examined John Paul Lederach's notion that reconciliation occurs through the meeting of 'peace, justice, truth, and mercy." But as becomes very clear in his exercise exploring these ideas, none of them are easy to understand. Justice, perhaps, is the most difficult.
Justice is often taken to mean "fairness." But fairness to whom? Determined by whom? In Western cultures, "justice" is usually seen as "just deserts"--or getting what you deserve. If you break a law, you should be punished. If you work hard, you should be rewarded. Eastern cultures are more likely to embrace the notion of restorative justice, or restoring order to relationships, rather than punishment for misdeeds.
Different understandings of the meaning of justice underly a lot of the disagreements we see in the United States right now regarding topics such as immigration, taxes, and health care. What is "fair?" "Who should get what, and why?" "Who should pay for it?" "What should happen when people break the law (for instance., enter or stay in the US illegally)?
Understanding the different definitions of justice is a start to sorting out what you think about these questions--and what is likely to create the outcomes you want and need.
We will be exploring the different kinds of justice more later in the MOOS Fundamentals seminar, but this is an ihntroduction, and curious readers can follow the links to more details right now.
-- Heidi Burgess. April 27, 2017
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 James. W. Vice, "Neutrality, Justice, and Fairness," (Loyola University Chicago, 1997).
 Nicholas Rescher, Distributive Justice. (Washington, D.C.: University Press of America, Inc., 1982), 5. <http://books.google.com/books?id=KCm4QgAACAAJ>. See also Rescher's Fairness: Theory & Practice of Distributive Justice (Transaction Publishers, 2002). <http://www.amazon.com/Fairness-Theory-Practice-Distributive-Justice/dp/0765801108>.
 Tom R. Tyler and Maura A. Belliveau, "Tradeoffs in Justice Principles: Definitions of Fairness," in Conflict, Cooperation, and Justice, ed. Barbara B. Bunker and Jeffrey Z. Rubin, (San Francisco: Jossey-Bass Inc. Publishers, 1995), 291. <http://www.amazon.com/Conflict-Cooperation-Justice-Inspired-Deutsch/dp/0787900699>.
 For a discussion of justice in a recent, global context, see: Chris Armstrong, Global Distributive Justice: An Introduction (Cambridge University Press, 2012). <http://books.google.com/books?id=LJU0djAZ1osC>.
 Robert Folger, Blair H. Sheppard, and Robert T. Buttram, "Equity, Equality, and Need: Three Faces of Social Justice," in Conflict, Cooperation, and Justice, ed. Barbara B. Bunker and Jeffrey Z. Rubin, (San Francisco: Jossey-Bass Inc. Publishers, 1995), 262. <http://www.amazon.com/Conflict-Cooperation-Justice-Inspired-Deutsch/dp/0787900699>.
 Folger, Sheppard, and Buttram, 272.
 Folger, Sheppard, and Buttram, 272.
 Folger, Sheppard, and Buttram, 273.
 Tyler and Belliveau, 297.
 Kerby, "The Top 10 Most Startling Facts About People of Color and Criminal Justice in the United States: A Look at the Racial Disparities Inherent in Our Nation’s Criminal-Justice System." Center for American Progress. Published March 13, 2012. Accessed June 4, 2013 at http://bit.ly/PMeeAG.
 Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution: Theory and Practice, ed. Morton Deutsch and Peter Coleman (San Francisco: Jossey-Bass Publishers, Inc., 2000), 54. More recent edition (2011) available here.
Use the following to cite this article:
Maiese, Michelle. "Principles of Justice and Fairness." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/principles-of-justice>.
Over three years ago, I wrote an essay discussing the proper meaning of the concepts of “fairness” and “justice,” as I understand them: On Fairness and Justice: Their Meanings, Scopes, and How They Are Not the Same.
My major points in this essay were 1) that the concept of “fairness” presupposes that one is talking about a zero-sum game: a situation devised by a purposeful intelligence to measure people’s attributes, where one person winning requires that another person loses; 2) that life in society and in general does not meet this criterion for “fairness” to apply: people “win” by creating valuable things, and do not need to deprive others of these things to have them; and 3) that societal justice requires the protection of individuals’ rights to life, liberty, and property, and that it consists in each individual generally being rewarded in proportion to his mental effort and virtuous actions.
In this previous essay, I explained my view of “fairness” and illustrated it with examples, but I did not argue extensively for my conception of that term–why my conception of fairness is correct. I have been prompted to provide further argument by the upcoming release of a book called “Equal is Unfair,” and one of the co-authors’ (Yaron Brook’s) reply to me regarding “fairness”:
I have great respect for Dr. Brook, and am looking forward to his latest book, but I think he’s wrong here: fairness does not mean justice. And the purpose of this post is to argue my case. I encourage those who have not read my previous essay to read it before proceeding on in this one, since it will help set the context for my arguments: On Fairness and Justice.
One of the first things that should spring to mind when someone mentions the word, “fairness,” is the realm of sports and competitions: Is it fair when women are put in competition with men? Is it fair when one team learns the other team’s plays through spying? Is a race where one athlete has artificial legs fair? Is a weightlifting competition fair when steroids are secretly taken, or openly allowed? Is it fair when the Patriots let air out of the football?
Does justice have the same intimate connection with such competitive sports? Is that one of the first things you think of when you think of justice? Probably not. This is our first clue that fairness and justice are different concepts: they seem to be associated with different realms of life.
Justice is a broad moral concept that basically means that people are giving and getting what they deserve from other people and their institutions–and it pervades all areas of chosen human interaction. Again, I want to stress here that justice is a moral issue, meaning that an injustice implies immorality on someone’s part. The person’s immorality, in turn, implies that his choices were involved in producing the unjust effect, whether through direct action, or through the founding/administration of an essentially unjust institution. (See: Justice at Ayn Rand Lexicon, Dr. Peikoff’s discussion in OPAR, and Dr. Smith’s discussion in Ayn Rand’s Normative Ethics.)
Returning to fairness, let’s consider a hypothetical example: A teenage boy is playing an online game of Halo 5. It’s a custom “Free-For-All Slayer” game, where every player is out to kill everyone else and get the most kills. During the game, when the boy already has 5 kills, his girlfriend joins the game. At the end of the game, the boy wins with 25 kills to his girlfriend’s 21. He’s joking around and acting a little smug, when his girlfriend playfully says, “Hey! That game wasn’t fair; I joined in the middle.”
Now what does the girlfriend mean by this? Does she mean, “That game was the product of someone’s immoral choices, such that I was deprived of the victory (or recognition) I deserved,” as the “fairness-equals-justice” view would have to say? Or did she mean, “That game did not accurately measure our relative skills, due to the game’s circumstances,” as my view of fairness holds? I think it’s clearly the latter. This game of Halo 5 is not a case where any injustice has occurred, but it is a case where unfairness has occurred.
There is a place for a concept that denotes whether or not a win-lose contest accurately measures the attributes or skills it is intended to measure, since such contests occur frequently, and that measurement is one of their major purposes, (the immediate one.) (1) And if this concept is not “fairness,” then we have no such concept. If we try to equate fairness with justice, then we are merely duplicating a moral concept we already have, and losing a perfectly valid concept of “unfairness” that does not necessarily imply immorality on anyone’s part.
I think this proper meaning of “fairness,” with it’s proper application restricted to zero-sum contests, is precisely the reason that so many political leftists are so eager to speak in terms of the “fairness” of political and economic systems, rather than their justice. They view the world of wealth and economic success in terms of zero-sum, and are eager to promote this underlying view. They want to cover their use of the government for theft with a rationalization: “Well, it was take or be taken from. So we took from those who can afford to be taken from, rather than let those with the most wealth, take any more from those who can’t afford it. We took that wealth back from those who must have somehow taken it from the less wealthy.”
But of course, wealth is created by action based on rational thought, and life in society is not a competition for the most wealth to prove who is the most adept at taking it from others. So this idea of fairness applying to a society as it does to a contest is completely wrong-headed. (2)
The above arguments are for the meaning of a concept one might designate as “competitive fairness.” But, in English, we use the word “fair” in another way as well, for a different concept that I would call “epistemic fairness.” When someone says, for example, “I don’t think you’re being fair to Bob when you dismiss his concerns,” or “He gave fair consideration to the arguments of his opponents,” he is using the concept of epistemic fairness.
Being epistemically fair means not allowing personal or emotional biases to prejudice one’s judgment of ideas and arguments. It is basically equivalent to objectivity in intellectual judgment, argument and discussion. It thus complements the personal virtue of justice, which is objectivity in the judgment of others’ actions and characters, along with appropriate actions and attitudes on the part of the judging person.
In my previous essay on fairness and justice, I mentioned that the concept of competitive fairness could be extended to a legal trial, where it is the state of the evidence being measured, and where the defendant “winning” was an acquittal, and “losing” was conviction. This sort of thinking may be the link between competitive and epistemic fairness, and might be the reason that we use the same word for both, but it is not strictly correct to apply competitive fairness to a legal trial. The fairness that actually applies to a trial is a procedural version of epistemic fairness: Are the procedures of the trial conducive to epistemic fairness on the part of the judging party, (judge or jury) or are they conducive to bias and prejudice?
Note here that, contrary to what many may think, a legal trial is not an exercise in justice. The purpose of a trial is not to objectively and morally evaluate the actions or character of the individual being tried, and one does not end up with such an evaluation at the trial’s end. Rather, a much more specific intellectual issue is being judged: Did the accused person willfully commit the crime(s) (or cause the damages) he is being accused of, or not? (Is there sufficient evidence to prove that he did?)
Now, once a fair trial has been administered, the resulting punishment, or lack thereof, can be regarded as an instance of societal justice: an individual getting a particular thing he deserves at the hands of the government. But the procedural fairness of the trial itself cannot be called an instance of justice or injustice.
So I have defined two different kinds of fairness, as I understand them, and given my reasons for thinking that neither is equivalent to justice. Nor, as I have argued, can either type of fairness be considered a narrower subset of justice: Competitive fairness applies to a different context than justice, and applies to situations that justice does not. Epistemic fairness is complementary to justice, rather than subsumed by it.
Despite the apparent error of the authors of Equal is Unfair on this point, (I assume Don Watkins agrees with Yaron Brook,) I am very much looking forward to their upcoming book. I plan to buy it and encourage others to as well. I think this error is quite minor relative to what I anticipate are the main points of the book: 1) That life in capitalist society is not a zero-sum game, nor a competition for a “pie” created by “society as a whole,” but rather a realm of potentially unlimited growth where individuals think, create wealth and valuable things that they themselves benefit from, not robbing others of anything in the process. And 2) that, because of this, the crusade of today’s wealth-inequality alarmists is unjustified and–at least in most cases–morally corrupt.
As I mentioned earlier, I have great respect for Dr. Brook, (and Don Watkins) and I welcome their arguments in favor of their view of fairness, whether made in their book or elsewhere. Further, I welcome anyone who disagrees with my analysis to offer arguments in the comment section of this post.
You can currently pre-order the book here: Equal Is Unfair: America’s Misguided Fight Against Income Inequality.
(1) Ranked contests, where people earn 1st, 2nd, 3rd, etc. places, are included in win-lose contests for the purposes of “fairness.” Any place but 1st can be counted as a loss against the person in 1st place.
(2) Leftists also like to talk in terms of “social justice” or “distributive justice,” which attempt to redefine justice in terms of equality in a collectivist “community” that produces wealth as a whole. Since it is allegedly the community as a whole that produces wealth, and since individuals are equal parts of the community, any deviations from equality of wealth among individuals must result from a win-lose (zero-sum) transfer between them.
Unsurprisingly, a variant of this zero-sum-based “distributive justice” was argued to be a crucial component of justice more generally in the highly influential theory of John Rawls, the 20th-Century Harvard political philosopher. Rawls also equated the general notion of justice to fairness.
On Fairness and Justice: Their Meanings, Scopes, and How They Are Not the Same
Wealth is Created by Action Based on Rational Thought
How Business Executives and Investors Create Wealth and Earn Large Incomes
Atlas Shrugged, Altruism and Egoism
America Before The Entitlement State