CODE OF ETHICS PRACTICAL APPLICATION: JUSTICE (ESSAY 4 OF 4)

Introduction

In this final essay of the four-part series on the Practical application of ethics[1] we conclude with a discussion on justice.  Justice, most commonly known as fairness, is the all-encompassing virtue that informs and guides the other cardinal virtues of prudence, temperance and fortitude.

These are virtues only when they serve good ends: We have witnessed how the virtues of so-called ‘prudence’ (in the form of disciplined shrewdness in the management of affairs), temperance (often as extreme self-restraint and discipline) and courage (deeply anchored in some ideology), when destructively implemented or used by obsessive tyrants and dictators, can result in death, poverty and severe injustice.   Justice, on the other hand, presupposes goodwill and duty.

Justice is a complex, multi-layered and multi-disciplinary topic.  It is the pivotal virtue that governs our relationships and private lives and, in a broader sense, also the society that we live in.  In the private landscape of an individual’s world, we are inclined to weigh our options before making decisions.  One may ask: Who is deserving of my time, money, commitment, diligence, tolerance, attention and sacrifice?  Is that which I am prepared to give and take, fair and lawful?

The outcome of these choices is sometimes guided by the realisation of equal benefit and exchange like paying a pharmacist a reasonable price for medication or spending time with friends and family.  At other times it is motivated by duty, such as, for instance, a mother allocating time, energy, care and attention to her children.  And finally, under compulsion of law one is obliged to pay taxes, speeding fines and renew car licenses.  Admittedly, at times we may feel like we have been treated unfairly and unduly burdened – an experience that often provokes a rebellious attitude in an individual, particularity when a person has been judged or treated in a dismissive or disrespectful manner.  As it turns out, these choices of our daily lives are governed by our innate sense of justice, i.e., moral desert, fairness and equality.

Justice encompasses much more than simply ‘the law,’ which is typically viewed as the ultimate expression of justice in society.  It is not only the courts, lawyers, arbitrators or officials in the administration of justices who are typically interested in justice – the ordinary man on the street, is equally invested in their understanding, or rather, perception of justice, be it conscious or not.  As the ethicist John Rawls has pointed out:[2]

‘[T]he stability of a society—or any group, for that matter—depends upon the extent to which the members of that society feel that they are being treated justly.  When some of society’s members come to feel that they are subject to unequal treatment, the foundations have been laid for social unrest, disturbances, and strife.’

Furthermore, no single vocation or profession, whether it be the law, philosophy, history or sociology, has an exclusive claim to the study of justice.  Each of these disciplines play a significant role in the understanding of the concept of justice.  The philosophical approach to justice dates a far back as 600 BCE, in ancient Greece, with the great theories of Plato and Aristotle; it continued into medieval Christianity (Augustine and Aquinas), into early modernity (Hobbs and Hume); it meandered through modern times with Kant and Mill’s contributions, right through to contemporary theorists like the late Harvard philosopher, John Rawls, and beyond.  In recent years, philosophers’ abstract speculation (i.e., critical thinking and well-reasoned argument) about justice has been complimented by empirical research.  Social scientists, for example, focus their efforts to understand human behaviour; political scientists study the organisation, structure, operation and administration of government; sociologists systematically uncover underlying social structures, while historians continue, with methodical narrative and research into past events, to understand how the past relates to the present understanding of justice.  As Hurlbert and Mulvale astutely point out: ‘Law and the justice system of a society constitute a social structure that is influenced by and reflects other social structures in society.’[3]

To better understand justice, we will now uncover some of the universal principles of justice.

Universal principles of justice

The preamble of the Constitution of the Republic of South Africa 1996 [4] (the Constitution) provides  that:

  • It is based on democratic values, social justice and fundamental human rights,
  • that every citizen is equally protected by law, *[and that it aims]
  • to improve the quality of life of all citizens and free the potential of each person. (*Insertion and emphasis added).

We can equate ‘to improve the quality of life’ and to ‘free the potential of each person’ to Aristotle’s principle of human flourishing or eudaimonia, often translated as ‘living well and doing well.’  We notice and thus come to realise that even though virtue cannot be legislated directly, that our supreme law (i.e., the Constitution) nonetheless assigns value to the promotion and development of communities that encourages the internalisation of the widely shared and deeply held social norms that are consistent with human flourishing.[5]

In order to achieve this, we need to go back to the most fundamental principle of justice – one that has been universally accepted since Aristotle first defined it — it is the principle that ‘equals should be treated equally and unequals unequally.’  In its contemporary form, this principle is sometimes expressed as follows: Individuals should be treated the same, unless they differ in ways that are relevant to the situation in which they are involved.

There are many differences we consider as justifiable criteria for treating people differently.  For example, we think it is fair and just when we give our own children more attention and care than someone else’s child; we think it is fair that easy access parking spaces are allocated to people with physical disabilities; we are pleased when a hardworking person or athlete excels in their enterprise or sport and receives world-wide recognition or makes much more money than we do.  Similarly, we generally appreciate that it is unjust to give individuals special treatment on the basis of age, sex, race, or their religious preferences.  The commonly accepted valid material principles for justifiable equal or unequal treatment are to each person an equal share according to need, effort, contribution and merit.[6]

Also worth noting is that although each of these material principles serves to identify a prima facie right or an obligation, its weight cannot be assessed independently of the particular contexts or spheres in which they are applicable.  ‘Getting what one deserves’ or, put differently, ‘getting one’s just deserts’ and the ‘fairness’ of unequal treatment found in corrective or distributive justice or the notion of an equitable sharing of civic burdens, such as paying taxes, may cause tension between what is considered fair at the individual and collective levels.  The complexity of justice therefore lies in balancing the principles of moral desert, fairness and equality into a personal belief system and social ethos that is perceived and understood as fair.

Here follows some practical guidelines for the understanding of our duties and obligations with regards to justice as it pertains to the ordinary citizen (particularly to a losing party) and the arbiter, respectively.

Practical considerations: The individual

I recently – on 22 October 2021 – read an inspiring, but heart wrenching, article on the Vrye Weekblad E-platform.  It was about a well-known academic and educational psychologist, Mr Quinton Adams, written by Anneliese Burgess.  Adams is the founder of The Shackbuilder, an organisation that was inspired after he visited a child at home who was diagnosed with attention deficit disorder (ADD).  He describes rather graphically the inhumane circumstances that these children are exposed to when he refers to ‘die reuk van armoede’ (English: the smell of poverty).

This article made me acutely aware of my egocentric, myopic and ethnocentric views and values reflective of my own world.  Simply recognising that we think normatively (within the confines of our own values, norms, experiences and perspectives), is perhaps the first step in understanding and accepting the broader concept of justice as fairness.  I suggest that all individuals are encouraged to read the Constitution that came into operation on 4 February 1997.  Knowing what this ‘supreme law of the land’ stands for with regards to our rights and obligations is not only good, but also essential.  This helps us to set aside out normative thinking and to expand our understanding of justice by thoughtful and respectful consideration of other opinions and viewpoints.  This approach challenges our traditional thinking and makes us embrace a plurality of positions that enables a better understanding of the principle that discrimination, for instance, is sometimes fair.[7]

Practical considerations: The arbiter

Since an arbitrator’s function is to properly and legally administer the dispute resolution process, it is highly likely he or she will define the problem in legal terms, usually involving a legal goal and a legal means.  This, warns Stephen Pepper, will often tend to distil out, or disguise moral dimensions.  It is quite possible for arbitrators to make an award based on an applicable law, which can result in a legally sound, but morally unjust outcome.[8]

Rule 15 of the Code of Ethics of the Association of Arbitrators (Southern Africa) NPC provides that the ‘arbitrator shall proceed diligently to resolve the dispute or disputes between the parties in a fair and efficient manner’, which impels the requirement and obligation of justice.  This concept denotes more than just ‘procedural fairness’ like adhering to all the procedural requirements, spending enough time to prepare and putting forth a logical argument – it also requires that arbitrators be, to a significant extent, led by visions of justice and morality.

For instance, if a client has the legal right to do x, does it mean that it is morally right to do x?  Law, from an ethical point of view is both a public resource and designed and intended either to lead to good consequences or, in its use and application, be intrinsically good.  When legal rights are at odds with fairness, it creates a gap between law and justice, what Pauline Westerman calls ‘the uneasy marriage between law and equality’.[9]

When parties are confronted with a property, wage, criminal or contractual dispute, for instance, we assume that both parties are equally protected and have equal access to laws in service to their needs and intentions.  However, this  is often not the case.  When the gap between the law and justice is significant, that is, when we are not equally protected, it ought to be ‘the lawyer’s ethical duty and responsibility to clarify to the client that he or she has a moral choice in the matter.’[10]

Whether the client is persuaded not to exercise her legal right is the client’s choice and the client’s responsibility.  The arbitrator’s role is to ensure that a litigating party is not deprived of seeking and/or obtaining such advice from his or her legal representative.  In this way he facilitates a process aimed at upholding the integrity of the institution of arbitration.  Rawls opines that ‘the members of a community depend on each other, and they will retain their social unity only to the extent that their institutions are just’.[11]  We can only talk about justice when the result of our systems of law and legal devices, procedural and substantive, collectively deliver a process and result that is legal and fair.  Justice, according to Aristotle, hinges entirely on respect for legality and equality: ‘The just, then is the lawful and the fair, while the unjust is the unlawful and unfair.[12]

Conclusion

Any attempt to expound the principles of justice, or even to imagine a comprehensive or unified theory of justice that captures our diverse conceptions, remains complex and elusive.  However, it can be said that our perceptions and intuitions about right and wrong (i.e., what is fair and just, or not) in particular situations and contexts, are primary and fundamental, but they are often also short-sighted and ego- and ethnocentric.  An awareness and rational deliberation of the rights and obligations concerning the underlying principles of moral desert, fairness and equality are crucial as it leads to a deeper understanding of justice and better equips us to live full, morally sound lives.


[1]      See the ‘Tools of the Trade’ section in the June 2021 and August 2021 and October 2021 edition of the e -periodical Arbitrarily Speaking!
[2]     Manuel Velasquez, Claire Andre, Thomas Shanks, SJ, and Michael J Meyer, Justice and Fairness (2014), Markkula Center for Applied Ethics at Santa Clara University https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/justice-and-fairness/ (accessed 17 October 2021).
[3]      Margot A Hurlbert and James P Mulvale, Pursuing Justice: An introduction to justice studies, Second Edition, Chapter I, Defining justice (2020) https://fernwoodpublishing.ca/files/pursuingjustice.pdf (accessed 22 October 2021)
[4]       Preamble of the Constitution of the Republic of South Africa, 1996 – https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf (accessed 24 October 2021).
[5]       Lawrence B. Solum, Virtue as the end of law: An aretaic theory of legislation (2017) Georgetown Law   Faculty Publications https://scholarship.law.georgetown.edu/facpub/2054/ (accessed 22 October 2021).
[6]       Manual Velasquez et al. (n 3 above).
[7]       See footnote 5 in respect of the Constitution.  Section 9 (4) thereof provides that: ‘No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3).’, while section 9 (5) provides that: ‘Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’
[8]       Stephen Pepper (1999) Lawyers’ ethics in the gap between law and justice, presented at the South Texas Law Review 1998 Ethics Symposium.  University of Denver Sturm College of Law.  Published in South Texas Law Review, Vol. 40, 1999: 181-205 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=186937 (Accessed 16 October 2021).
[9]       Pauline C. Westermann The uneasy marriage between law and equality, Laws 2015 4:82-90 https://www.mdpi.com/2075-471X/4/1/82 (accessed 1 November 2021).
[10]      Stephen Pepper, p. 190 (n 9 above).
[11]      Manual Velasquez et al., (n 3 above).
[12]      Aristotle, Nicomachean Ethics 350 BCE, Book V Translated by W.D. Ross N.D. http://classics.mit.edu/Aristotle/nicomachaen.5.v.html (accessed 17 October 2021).

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