Why Fairness Does Not Mean Justice: Some Further Argument

Equal is Unfair: America's Misguided Fight Against Income Inequality, book coverOver 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)

Epistemic Fairness

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.


Related Posts:

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

3 thoughts on “Why Fairness Does Not Mean Justice: Some Further Argument

  1. I incline to agree. fairness and justice are close but not identical concepts. Justice includes moral judgment of person’s character while fairness is not. Fairness rather deals with the level fields of competition, that is-equality. And we already have learned that equality is not justice since Nature doesn’t provide level fields to everyone. Justice could be restored but fairness not, no matter what advocates of fairness say.

  2. Pingback: Why Fairness Does Not Mean Justice: Some Further Argument | The Rantings of Vern Rigg Kaine

  3. I don’t think Yaron Brook is confusing fairness and justice. He’s not saying the concepts are the same. He’s saying people use to use fairness to refer to getting what one deserves and now they use it to refer to getting an equal piece of the pie.

    I think you’re accepting the examples of “fairness” that he’s rejecting. You’re basically confusing fairness and equality, and then making the argument that equality isn’t justice. You’re using different words to make the same argument.

    Anytime someone says: “That’s not fair!” They mean it is wrong, bad, evil. Clearly, we’re in the moral realm here. The question is why it’s unfair. Bill Gates has more money than I do. I don’t think this is unfair because he earned it. That’s my view of justice. Most people today do not agree with this view. They think it is unfair simply because he has more, regardless of how he acquired it. The battle between these opposing views of justice is centered on the concept of “fairness.”

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