What is Fair?


Very often clients say “I just want what is fair.” That is a great thought, but the problem is that there can be big differences in what people view as fair. At a conference I attended last week, we discussed four different theories of fairness.

The first theory is Legal Fairness. This is what lawyers generally look to. It applies an outside objective standard, such as what would the court do. It may look to other standards than just the courts, such as what value did the appraiser give, or what is the rule. This is not as straight forward as it seems, however. Ask a question like “how much property should each party receive in a divorce?” and 100 attorneys are likely to give 100 different answers. Also, many people have very different measures of fairness.

The second theory is Equitable Fairness. This is a subjective rather than objective standard, which means it will vary even more from person to person. It attempts to take into account the unique background of the particular issue. It might look at things like how much a person invested in time, money, care, etc. A person using this approach might say “I deserve X because I worked so hard to create and maintain it.”

If we asked a question like how much spousal support is fair, the legal fairness approach might say, well, the court is likely to award $1000 per month, so that is a fair figure to agree to. Under an equitable approach, a person might say, I am the one making the money, so it should be mine. Or the spouse might say, I worked hard to support you in your career, so you owe me a certain lifestyle. Interestingly, the court in family law cases is directed to fashion an equitable solution, which is not well defined.

Another theory of fairness is Needs Based Fairness. This is probably the dominant standard worldwide, though less so in the United States. Under this approach, the fairest way to apportion scarce resources is to the one who needs them the most. A good example is the village where the returning hunter shares the catch with others in the village so that no one starves. This helps preserve the community as a whole. This is particularly common in cultures that value the group over the individual. In the US, we have a particularly strong tendency to value the individual over the group.

On the other hand, we do still employ needs based reasoning a great deal even here. One of the standards our local courts employ when deciding how to apportion legal fees in divorce cases is “need and ability to pay.” Need is also a significant factor in alimony decisions. Social Security, welfare, and unemployment compensation are all forms of apportioning resources to address need.

Finally, the last theory is Faith Based Fairness. This may be religious based (“what would my god want me to do”), or may be based on some other form of belief system. A person who believes that the automobile is ruining the environment may feel that it is fair for bicycles to be apportioned more of the road.

Therefore when two people both have a commitment to doing what is “fair”, that is only the start. Before they can come to agreement on what to do, they have to find a definition of fairness that both can support.