Equality and Fairness 1

Running head: EQUALITY AND FAIRNESS

Equal Rights: Struggling Toward Fairness

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Institution

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Course
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Equal Rights: Struggling Toward Fairness

The debate on rights has been raging for some time, and is still a topic of discussion in many

social forums. Every country now seems to be moving towards establishing a society ruled by

justice and fairness, and for those who find it difficult to instill justice in their leadership find

themselves on the wrong footing of the power wielders in the international arena. They are

simply labeled enemies of humanity and human progress and sanctions slapped on them. They

become subjects of international tribunals, irrespective of the positions they hold in their society.

The most recent example is the Sudanese president, Hassan Omar Ahmed El Bashir, who has

been mentioned by the Prosecutor of the International Criminal Court as having grossly violated

the human rights in the Darfur region of Sudan, and so needs to be tried in the international

court, his status of President of a sovereign state notwithstanding. Sanctions have been slapped

against leaders like Roberts Mugabe for violating the basic rights of his people.

Society as it is framed will ever have classes. It is unthinkable at present to have a classless

society as espoused by Karl Marx. The world is turning a global village and competition is all

one needs to master, in order to be safe. Despite this, there has to be strong rights organizations

to defend the voice of the minority and the disenfranchised groups in society. After all, one of the

fundamental tenets of democracy is the respect for human rights.

The Meriam Webster Online Dictionary defines fair as an action marked by impartiality and

honesty. It involves acting without prejudice, favoritism or self interest. Fairness is then a

cardinal principal that a civilized society should advocate.

A right is that which one is entitled. It is an entitlement for the sake of it. It is also that which

one has a just claim over. The Universal Declaration of Human Rights insists on the equality of

all human beings. It categorically states that all are born free and that they are equal in all aspects
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pertaining to dignity and rights. The declaration also stresses on the use of reason and

conscience. Discrimination on ground of race, religion, sex, language, skin color, political

opinion, nationality, among others is highly condemned.

In the struggle toward a just society, there should be concerted efforts to guard against any

form of abuse as this would constitute a violation of a right. Society at present is bogged by the

debate on fairness. This is a concept difficult to define, and so has been misused for cheap win of

arguments and the ways issues pertaining to it should be addressed. Society has chosen to

explain it for political expedience, meaning that the goal posts would keep on changing. It is for

this reason that the civil society has joined in to compel respective governments or institutions to

protect what they deem as the fundamental rights, for fairness to be seen to be enforced in

society. This would promote both people’s perception and the reality on the ground on issues of

justice.

The struggle towards fairness has been adopted by almost all countries, through the

establishment of institutions charged with the promotion of human rights. In some countries,

civil societies have been urged to be louder in the defense and advocacy of human rights.

Countries have also included in their constitutions a provision for a bill of rights, though the bill

is greatly distorted by counter provisions empowering the state to trample on the rights whenever

it feels that the enjoyment of the right ‘is a threat to national peace and stability.’ This has

promoted abuse in the name of ‘protecting sovereignty’ by dictatorial regimes, eliciting a need

for international action in enforcing these basic rights.

Justice may be understood in two ways. The first is about the inherentness of the concept. In

this understanding, justice is inherent and divine in nature. It supersedes the legal system, and

any action which is not in line with the rules of nature is declared unjust (Maiese 2006). In a
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narrower sense, Maiese argues that justice is fairness. It has to do with the due concern to

people’s interest. It has a lot to do with the respect to the rules of a game, and the observance of

the relevant laws.

The society has turned to observe the principles of justice as a way to promote fairness. The

different categorizations of justice are done with respect to how it is administered in society. The

first category is distributive justice, which argues for fairness in the mode of sharing the

resources in the society. The mode of distribution may be based on equality, equity or need.

Procedural justice deals with the rules of procedure. It insists on the consistency of

procedures followed in addressing an issue. Similar cases should be treated similarly, and

predictability promoted. In the words of Aristotle, "equals should be treated equally and unequals

unequally." This is the most fundamental principle of justice and under such a case; the

antagonists would feel a fair play even if the outcome is to their disadvantage.

Retributive justice has to do with revenge. The state is the agency administering the revenge,

as it felt the offence was committed against it. In jurisprudence, criminal offences are prosecuted

by the state since, the state is assumed to be the aggrieved party. It is retroactive in operation in

the sense that the offender is punished for the offences committed- it is done after the

commission of the offence. The offended would feel relieved just because of the punitive

measures, often painful, inflicted on the offender. It is mostly applied in courts of law, both

municipal and international.

Restorative justice is purposed to restore trust in society. It aims at preventing a mistake done

from being repeated, and often involves damages paid to the offended. It has a lot to do with

reconciliation, and it is out of this concern that truth, justice and reconciliation commissions are

establihed.
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There is a very thin line demarcating the concept justice and fairness. They have been, on

some occasions, used interchangeably. However, when talking of fairness, the basic meaning is

that decisions should be situation specific. It should be devoid of any conflict of interest, or any

kind of either inside or outside forces.

From matters of justice, let’s have a look at the concept of human rights. As mentioned

earlier, these are entitlements to a person or a human being by virtue of being one. They are not

provided for by the state or any other agency- one is born with them, the reason why they are

termed as inherent. To add weight to the argument that they are transcendental, they have been

widely accepted in the international spectrum as binding. They transcend cultural, racial,

religious, technological advancement level, and geographical limitations. The mere fact that they

have been adopted in many international conventions mean that they transcend societies-they are

inherent and have to be considered as such. These rights may be categorized; though the

categorization does not in any way mean they are divisible. These categories are; social,

economic, cultural, political and civil rights, and they run as one.

The debate on distributive justice features the principles of equality, equity and need

prominently. It is also at the core of social justice, which is about according people what is due to

them. Reward should be extended to a commendable job done, as punishment is meted on

shoddy work. The basic needs should be met as people are treated as equal human beings,

differences only coming on the basis of talent and social class one belongs.

Equity theorists argue that fair economic system would distribute resources to individuals

according to their input in the system. It is opposed to the socialist system that emphasized that

one should produce to his ability and consume to his needs- the Ujamaa type of society

advocated by the founding President of Tanzania, Mwalimu Julius Nyerere. It has taken a
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capitalist position that the more one produces so is his entitlement in terms of returns. The

argument here is that this will act as a motivation for people to produce even more, not only

quantity wise but also quality wise. The weakness of this system is that it does not recognize the

different talents in society, and is more of a materialistic theory. How, for instance, can an

academician favorably compete with a businessperson who deals in the buying and selling of

commodities in such a case?

The equality model argues that all resources should be distributed equally in society, no

matter who did what and how in the process of production. The model shares the disadvantage of

non recognition of effort and talent with the equity model. Different people have different

preferences in life, and one may be wrong to allocate monetary benefits alone in a production

system. Some people would favor non monetary appreciation, may be in the form of a holiday,

but the equality model would dictate that the person be given money. In the end, the distribution

would not even be equal as some would be satisfied after getting their desires, while others are

forced with what they did not wish.

Distribution per the need occurs when one is given according to the need, but produces

according to their ability. If we were living somewhere in heaven or were we angels, then this

would be a perfect principle. It is unfortunate that we are just human beings, who may not

struggle if there were no reasons or strain to struggle. The model is a promotion of laziness, as

one would wonder why he should work extra hard only for the sweat to benefit a third party. The

innate egocentric nature of human beings will deal a big blow to this theory. The theory fails to

differentiate between the real needs of society, and those just manifested- it works like

advertising. The more you are creative in advertising your product, the more it will sell, poor
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quality notwithstanding. It would award the affluent people less than what is extended to the

lower cadre in society.

The three models mentioned above have been formulated, not for their own sake, but out of

the need of fostering some responsibility in society and in the enhancement of social cohesion.

Society needs to have cohesion, and work as a system with understanding among the constituent

parts. Hence there is need to have a system that would recognize the different talents in society,

and the efforts rendered by each unit. For the cohesion to exist there has to be the three principles

of equity, equality and need. A hybrid would ameliorate the weaknesses of the individual aspects.

Legitimacy of decisions taken can only exist when fairness is seen to be practiced. Individual

acceptance follows a consideration of past events being analyzed and the current situation being

put into context in determining the consistency. Principals of natural justice should be stressed,

that people be give a fair hearing in their cases. They should be notified in advance the cases and

charges laid against them, so they prepare their defense. Whoever is playing the mediating role

should not be partisan. He should be someone without prior knowledge, or should not use the

prior knowledge of the case to influence his decision. This would amount to prejudice. Like

cases should therefore be accorded like treatment in a level ground of play.

It is a natural practice that people like associating themselves to a particular social group. As

Aristotle argued, men are social animals, and that is why they are ahead of other animals. For

this reason, they should be given a voice in the decision making organs, so as to feel even

stronger in attaching themselves to the said society. Empowerment should be at the agenda of the

society, that even the weakest in society should make their voices heard. This is done through

involving the whole society in the decision making processes, in a participatory form of life.
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The society members should as much as possible be made to develop trust in the leadership.

This would make them feel part and parcel of society and have a feeling that the leadership is

wishing them well. Arrogance should be avoided by any leadership, as it erodes trust, a situation

that may bring about anarchy. A section of society may feel neglected, and that there is a

concerted effort to rid it of its entitlement, thus reducing substantially social cohesion.

There cannot be talk of justice and fairness in a situation where society is just running

smoothly, the same way there would be no need for judicial systems if there were no conflicts

and ills in society. In fact such a society would be a boring society, with little, if any innovation

to be made. As the saying goes, necessity is the root of innovation. The necessity to reach a just

society has brought about studies on the topic of criminology and justice. It serves two purposes

of philosophy of the acquisition of knowledge for utility, and for the purpose of mere quenching

of the thirst to know for knowledge’s sake. The process of searching for this kind of knowledge

also serves to feed the intellect, as it is the food of the soul-philosophizing.

It is for this epistemological consideration that the study of justice and fairness has gained

popularity in the scholarly and practical world for the present, and future prospects considered.

However simplistic the debate seems, the conceptualization of the terms is more difficult. A

philosophical definition of justice points that it is the wish of the elite in society. In the process of

constructing legal instruments, the main parties are the bourgeoisie class. Again, it does not

amount to fairness when one is not aware that his right is being trampled upon. For this matter,

ignorance may act detrimentally to the whole idea of justice and fairness. It may therefore count

that a society dominated by illiterate fellows is in itself an unjust society. The leadership in any

society should therefore work to eliminate illiteracy, and promote awareness campaigns on the

rights and duties of its members and institutions. For this reason, one of the rights, and also a
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basic need is to access quality and affordable education for everyone, at least at the foundational

level. Again, if justice is understood to be going by the rules, then the rules are made by some

selected few. They are made to safeguard the interests of the upper classes in society, against

invasion of their property by the lower classes. In all contemporary societies, it is the legislative

arm of government which comes up with legislations, or, at its discretion, may delegate some of

these powers to some subordinate levels.

To come up with an all inclusive principle, the context of an argument should be the basis of

which principle of justice and fairness can be best applied in a specific case. Caution should be

taken that punishment should not be meted on an innocent person. This would impact directly to

the abuse of a right, the same way rewarding an undeserving party would.

For society to achieve the dream of equal rights in the struggle for fairness there should be

constitutional provisions, of which the state should not have overriding authority over. The civil

society should be encouraged to sprout, as it plays a crucial role in interest articulation. The

poverty gap should be reduced considerably so as to reduce the prospects of the bourgeoisie

mistreating the proletariat at the workplace.

There should be clear separation of powers and a strong political system with a formidable

checks and balances subsystem. The three traditional levels of government should act

independently, with the judiciary promoting justice in a manner that both reflects on the peoples

trust- public opinion support- and professionalism. Justice should not only be done but seen to be

done, as well.
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References

Donovan, James. (2008). Rights as Fairness. The Selected Works of James M. Donovan.

Retrieved 17th July, 2008 from: http://works.bepress.com/james_donovan/47

Levine, Gregory. Fairness, Administrative Justice and Human Rights. Paper presented at

the Keeping the Lights on Human Rights conference organized by Amnesty

International, February 9, 2006. Retrieved 17th July, 2008 from

http://www3.telus.net/GovtEthicsLaw/FairnessandHumRtsDiscussion.htm

Maiese, Michelle. (2003). Justice versus Fairness. Beyond Intractability. Retrieved 17th

July, 2008 from http://www.beyondintractability.org/essay/principles_of_justice/