A basic question for
society is, "How does it balance the interests, needs, wants, and rights
of the individual member with those of the group, or society?
Further, "How does the
society transfer its knowledge and solutions from generation to
generation?"
For thousands of years,
humanity has evolved solutions to these questions. Each have been specific to
the time and circumstance and have proven to be successfully passed on
generation to generation. In the process, there have emerged thousands upon
thousands of individual and distinct societies with their own distinct culture.
And in each of these, the same questions are asked and answered. "How does
the individual relate to the group, and how does the group relate to the
individual? From a broad perspective, it has been through addressing the basic
question of individual fairness versus the collective benefit or interests that
we recognize the role Law plays in the evolution of culture.
What is a "fair
share" and "how do we determine it?"
As anthropologists, we have
found that there are a number of recurring solutions to the human questions of
fairness. These solutions exhibit a similarity over time and space. In
addition, they also reveal an underlying pattern of growth and focus. By
growth, I am referring to the inclusion of situations that show a particular
bias that favors the individual or the group. By focus, I am referring to the
process of resolution -- fairness or law. The goal of any society is to create
a method that the group, as a whole, will ues to create a sense of
"fairness" among its members.
Fairness comes in two forms
-- situational and cultural.
Situational fairness is the "deal" where
two parties negotiate the costs and benefits of resolving certain points of
conflict that prevent them from mutually benefiting from the situation. Each
openly lays out its list of costs and benefits as its sees the situation. Then
they begin a process of weighing their individual cost or benefit to accepting
or rejecting the other's claims. Through this process, the parties arrive at a
conclusion. That conclusion maybe either a deal, that each agrees satisfies
their individual need, or no deal that may result in a simple agreement to
disagree, or elevating the conflict into a violent confrontation using force to
achieve "personal" objectives despite the objections of the other
party.
It is the latter outcome,
passed on from situation to situation, from generation to generation, that
leads from an individual to collective feeling of fairness and unfairness. Fair
deals become routine. The beheavors become almost ritualistic. Like the Kula
ring described by Malinowski, the Potlatch described by , or the Church
offering described by , these acts are based on a culturally defined TRUST
between the parties.
Unfair deals are seen as
threats or rights, Threats or rights depend on what outcome one might expect if
the deal is not made. A threat is a potential loss of the status quo, property,
identity or life. In modern society, the lose in a game may be seen by the parties
to the game as a threat to status. The purchase of a house may be seen as a
threat to the buyer and seller unless guaranteed by the bank writing the
mortgage. The loss of a driver's license can be a threat to one's identity
where such a license from the state is used to guarantee one's identity. And,
the warning label on the dangers of a given product tells of the threat of
misuse of the product can lead to death.
A right, on the other hand,
is the anticipated privilege or standing that one finds in the situation. When
these expectations are passed on, generation to generation, they become
normative expectations or cultural rules of fairness and unfairness. The right
to own a house is guaranteed by the ability to get a mortgage, to buy liquor or
board a plane is guaranteed by a driver's license, And the manufacturer's
warranty or seal of approval is a guarantee of the safety of the product.
Laws are the social and
cultural counterparts to fairness. These are the elements of a deal that have
been reached and accepted by the parties involved, who find themselves in a
similar situation time after time. They are the solutions to situations that
group members have resolved in the past. The most significant feature of the
Law is how group authority is acquired and the degree to which it is
legitimized. It is the individual granting authority to precedent. It is
permission by the parties to a deal to accept past decisions as the solution to
similar future problems or situations.
Laws, if democratically
debated and approved, is the compromise of a civil society. It is a
compromise over a complex set of issues that otherwise could or would
divide the public. It is the Art of the Deal that leads to shared actions
and collective order. It is not the BIG LIE that "personal fairness"
sometimes pretends to be.
That is the point. Fairness
is an individual and small group value and relates to a more personal
interaction such as "a fair price" or "fair exchange".
Lawful is a political term referring to a formal agreement that socially
and culturally defines the Context and circumstances in which it is
"FAIR" to do and act in a communal way. Fairness is more
emotional, more personal, more immediate, and more idiosyncratic than the LAW.
Fairness rest upon TRUST based on personal or family experience.
The LAW is more abstract,
more cultural, more dependent on literacy and most of all, on authority. It is
abstract in the sense that it requires an analysis of the facts measured
against some principle of fairness, shared or in conflict. It is cultural in
the sense that it is historical built on group experience. It requires literacy
since it is based on written rules of evidence and histories. And most of all,
has the authority of the social order to determine priority the relative rights
of the parties involved.
On a personal level,
fairness and lawful are the same. But on the social level there can be a wide
difference between the two. Lawful justice weighs the claims of
"fairness" of both sides in order to render a decision that should "always"
be applied to such an issue. It does this to the determine and weigh the facts
in the situation, i.e. the evidence. The question that the LAW must answer is,
Who or What will administer the process?
This is the challenge
facing the professional applied anthropologist both morally and ethically.
1. Should the
anthropologist working on a principle of fairness? And if so, "fair"
to whom?
2. Should the
anthropologist work as an expert witness, adding clarity to authority of the
LAW.
3. Should the anthropologist
serve as advocate, and if so for whom or what?
The anthropologist can
never separate his or herself from the fact they are human, cultural beings,
and actors in the situations they seek to study. They are in many ways their
own subjects.
Like the society that they
are a part of, anthropologists find themselves tools of the authority structure
they live in as human beings. Among western applied anthropologist, there is a
bias toward "fairness" embodied in the idea of "do no harm."
The conflict between what
is "fair" and what is "legal" is the challenge
of Democracy. A democracy is "fairness" under law. All other
social orders are "law" under what is "fair" to those
who are in power and with the power.
We live in a binary world
of reality. What is personal is only half of the equation. What is professional
is another part of the equation.
