One of my favorite classes to teach is Justice and the Judicial Process. In that class, we examine in some depth the tension between the Law and Justice. Even the text we use is entitled Law and Justice by Howard Abadinsky.
The threshold question is whether equal treatment requires that everyone be treated the same? The Law seems to want people to be treated as equals. Equal treatment is fair treatment according to the Law. Justice demands that the right thing be done. Justice asserts that treating everyone the same does not always mean that you are treating everyone fairly. Sometimes equal treatment is unfair treatment, according to Justice.
I use two personal examples to clarify. When my father died in 1983, he left everything to the middle brother. My oldest brother and I received nothing except a half share of his funeral bill. I ask my students whether they think this was just. While most of them say that it was not because children should inherit equally, some say that they need to know more facts. Why did my father treat us differently? When I explain that my father was an invalid who lived the last decade of his life wheel-chair bound in a mobile home next to my middle brother’s house, a light bulb flashes on in their minds.
When I further explain that my brother helped my father get out of bed every morning and go to bed every night for more than a decade – which Dad could not do on his own – and that he ran almost all of my father’s errands, they then understand the daily sacrifice my brother undertook. Because my older brother and I were indebted to my middle brother, we urged our father to leave all of his estate to him and we volunteered to pay the funeral bill because we could afford to do that. We can debate whether justice was done, but certainly my older brother and I were not the ones who received the short end of the justice stick.
My other example involves my three children. One night on the way home from work, I stopped by a Cumberland Farms store and bought each of them a package of Reece’s Pieces – my favorite candy. I thought that this was certainly fair treatment. My youngest was delighted with the gift because it’s also her favorite candy. The middle child told me that he much preferred gum and gave the candy to my youngest. The oldest child said that she was on a diet and would prefer fruit in the future. She gave her candy to the youngest as well. Had I been just? Had I been fair by treating them all the same? I had thought so at the time. My youngest child certainly thought that I was very fair. The older children would have had a different answer.
So let’s return to our initial inquiry. Is equal treatment necessarily fair treatment? The answer is that it depends. It depends on the facts. Understand the facts and you can determine whether or not equal treatment is fair treatment.