In order to determine fairness, including just punishment, we need to start by asking the right questions
Thus far in our exploration of the five fundamental ethical or "life" principles, we have looked at: Do No Harm, Make Things Better, Respect Others, and one aspect of the fourth principle, Be Fair.
We now turn to two more ways in which we can evince fairness in everyday life: retributive justice and rectificatory justice.
Retributive Justice and Fairness
Deciding who gets what of a limited amount of goods or services is one aspect of fairness. Judging whether someone should be punished and, if so, in what way, is another. This second dimension of fairness is retributive justice.
A good manager asks, "What's the right way to punish an employee who has done something he or she shouldn't have?" The concerned parent wonders, "How should I deal with my misbehaving child?" Both questions are fundamentally ethical ones, and the most straightforward standard for meting out justice is this: The punishment should fit the crime. Whether a proposed punishment is fitting requires a thorough accounting of the facts, an understanding of the relevant law (if the infraction involves a breach of civil or criminal law), and a commitment to disregarding everything about the situation that isn't relevant.
When a person accused of wrongdoing is punished in a way that seems unfair to him or her, that person is likely to claim discrimination. But is discrimination inherently unfair? No, it isn't, and to this issue we now turn.
Fairness and Discrimination
Universities legitimately discriminate against students whose grade-point averages and SAT scores are below a certain level. Employers discriminate against applicants who lack the requisite knowledge or skill, and that's perfectly acceptable. Single people discriminate against suitors to whom they aren't attracted or with whom they don't share fundamental values, and rightly so. To discriminate is simply to make a judgment based on certain standards or criteria. Discrimination is unfair only when it's based on irrelevant criteria.
What constitutes irrelevant criteria? The answer is, as we saw in last week's column about distributive justice, context-dependent. That is, the standards that are acceptable in one area amount to prejudice in another. It's wrong, for instance, to use the ability to play Scrabble well as a factor in determining who's entitled to rent an apartment, but if you want to compete in Scrabble tournaments, that skill is (and should be) the primary, or sole, determinant of acceptance.
Title VII of the 1964 Civil Rights Act prohibits basing employment decisions on such factors as race, religion, gender, veteran status, and age. Each of these personal characteristics, however, may be a legitimate basis for screening some people in and others out of a group beyond the workplace. Is it wrong to exclude non-Catholics from a Catholic singles mixer? It's hard to see why. If you never served in the armed forces, could you reasonably be denied membership in the local Veterans of Foreign Wars club? Of course. If a personal quality is relevant to the position to which someone aspires, it's acceptable to use that quality as the basis of discrimination. If a quality is irrelevant, it's wrong to use it.
In grappling with what kind of punishment is fitting for a child who misbehaves, an employee who uses a client's account for personal expenses, or a student who cheats on an exam, we must exclude all those considerations that shouldn't play a role in our decision-making. The following questions are right to consider in our efforts to come up with a fair response:
What was the nature of the offense?
How many times has the person committed the offense before?
What's the magnitude of the harm that resulted from the infraction?
Were the consequences of the offense reasonably foreseeable?
If the misconduct occurred in an institution, is there a policy that specifies what the punishment is to be? If so, is it fair?
If the misconduct involves a violation of the law, what does the law specify as a punishment? If so, is it fair? (Granted, the latter question applies only to those in the judicial system, but the men and women entrusted with the responsibility of applying the law should still take the notion of fairness into account.)
On the other hand:
The college president who responds to a student's violation of the honor code with merely a stern warning because that student's parents donate a lot of money to the school;
The CEO who responds to an employee's harassment of a coworker with indifference "because the guy is a friend of mine;" and
The parent who ignores her child's pot smoking "because it would be hypocritical of me to punish him for something I did myself as a teen"
are all guilty of using irrelevant criteria in meting out justice, which results in unfair outcomes—and the failure to honor Life Principle No. 4.
Fairness and Rectificatory Justice
Rectificatory justice is just a fancy way of saying "making things right again." When a person or a group of people have been the victim of injustice, he, she, or they are entitled to some sort of compensation. This might involve money, or goods and services, or a simple apology.
Where retributive justice is concerned with responding fairly to the perpetrator of wrongdoing, rectificatory justice focuses on how the good parent, employer, or society should care for the victim of another's wrongful conduct. As is the case with distributive and retributive justice, our efforts to "make things right again" don't come from a rigid formula or set-in-stone criteria. Rather, one seeks to combine knowledge of the facts with an application of the relevant rules (e.g., "give to others their due—no more, and no less") along with the wisdom that can come only from experience.
Next week we turn to the fifth and final Life Principle: Be Loving.
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