fairness and the law
1st January 2016
The father of sociobiology, Edwin O Wilson a little while ago published a paper showing a change in his view on the importance of groups in evolutionary terms. From the 1960's there had been a consensus amongst socio-biologists that significant evolutionary pressure came only through the individual and his genes. Wilson and his co-author have now however concluded that although the individual is important, the group to which the individual belongs can actually be equally important - as Darwin originally proposed. One group can outdo another by reason of its members' willingness to co-operate and thus favour the quality of life of its members and therefore their reproductive prospects.
In support, Wilson quotes a study about lions. Female lions of the same pride share a territory, but only some of them actively defend it. If there are too few, the territory will be lost. If enough cooperate in its defence, their territory is maintained. Surprisingly, according to the study, the defenders do not gain any special benefits from their activity, except for those of being a part of a successful group but then, so do their less active companions, the free-loaders of the pride. There is no penalty for not taking part in the defence of the territory. We see in this the paradox that the best strategy for the individual is selfishness, a free-loader in a co-operative society where most of the others act in a way which promotes the greater good.
So are we like the lions? Well, I'm not sure about the motivation of lions, but in human society, there are those who voluntarily put themselves out for the benefit of others. We call it altruism. However, just like the lions, although there are people who do things which benefit society, sometimes at significant cost to themselves, there are many others who let them do it. In contrast to the actions of packs of lions, however, in human society (and in groups of some other primates) there is another important factor, which redresses the balance in favour of the altruists. It is a wish for fairness, for fair play. And my guess is that it developed as a means of improving the success of society, by encouraging altruism amongst its members. Of course, in the human context, by altruism I mean doing things for the benefit of others in the general expectation that others will do things for you at some time in the future. Fairness means that if someone acts altruistically towards me, I will feel some pressure to act in a similar way towards them.
Clearly, however, the tendency to act altruistically in the first place or to return the favour is not the same in everyone. Of course, very often it does not really matter. If I receive no response to my altruism, then I will simply cease to act altruistically towards that person. But on the wider stage, we are willing, altruistically, to vote for governments which will levy redistributive taxes to support those less well-off than ourselves. We get very upset though if we find that people are playing the system. It’s not fair. Neither will we vote for governments which want to go too far in redistribution. As we discovered at the last election, we see it as fair that those who work should benefit from doing so and that those who are too lazy to work should not be the beneficiaries of our largesse.
But if fairness evolved to support the working of altruism, it has now taken on a life of its own for good or ill. Amongst primates in zoos, the keepers have to be very careful - feeding one animal in a troupe more than others, e.g. because it has been ill, can result in retaliatory action against the beneficiary. A perceived lack of fairness can produce a violent reaction. We see this in human society as well. A desire for vengeance, for example between gangs, is based on the perceived lack of fairness which would result from letting the other person “get away with it”, following an insult or an actual injury from a physical attack. So then fairness, although capable of promoting altruism and thus the survival of the group, can also weaken the group when it turns into a reason for a vendetta. It is for that reason, I would suggest, that the human race has gone one step further, by evolving legal systems. In Western democracies at least, they are based on fairness but are designed to put judgement regarding its application and enforcement into the hands of independent third parties.
obviously, we do not apply the law to
every part of our lives: for
example, a promise to do something
without requiring anything in
return cannot be enforced through the
courts, but an exchange of
promises, i.e. a contract can. So
then, the law of contract is based
on the premise that it would be unjust
i.e. unfair for someone to
take advantage of a bargain entered
into without doing
what he had undertaken to do in
return. One might say that the
altruists are getting even - they are
fed up with being taken for
granted and have brought the lawyers
in. And the criminal law has
been taken out of the hands of the
individual wronged. Instead, the
Courts now judge what is a fair
sentence to pass for the commission
of a criminal act. And so whilst
certainly not applying to all our
actions, it seems that those aspects
of fairness which we judge to be
essential to our lives are a part of
our legal system. As a society,
we enforce fairness, but do so fairly.
However, we now have a major international problem to solve - the problem of the greenhouse effect - something which is placing a considerable strain on our altruistic tendencies as well as what underpins it, our sense of fairness. We are asked to work for the advantage not of our group, but for mankind as a whole. We are asked to give up advantages we already have so that other societies can develop, whilst at the same time preventing too great an increase in total carbon emissions. It will take a lot of persuasion. It goes against the grain. Unsurprisingly, the 2015 Paris conference has only managed to produce a set of legally unenforceable 'commitments'. It has taken us millennia to bring different tribes together to form nations, with citizens who work together reasonably co-operatively. So the question is, in the small amount of time left to make a difference, can we take that one step further for the benefit of us all? I'm not convinced.