It's possible to be just, but not fair

Apparently my post the other day on Marc Brown's campaign signs ruffled quite a few feathers both here and over on my Facebook page. Now I don't want to get back into whether Mr. Brown is a decent, honest and reasonable man or not. I wanted to talk about our use of words: specifically, fair and just.

One comment on Facebook suggested the word "just" would have been a better choice than "fair."

it's not 'fair' that you need...it's 'just.' Sometimes the 'just' thing to do and the 'fair' thing to do are not the same. If you want a partial umpire in a factual dispute, then be prepared for justice not always being fair.

And, when I stopped to think about it, I thought she was right. Then my colleague, Houston criminal defense attorney Mark Bennett argued that one cannot be just without being fair.

From the beginning: "Just" and "fair" are synonyms. There's no such thing as "just, but not fair."

To the end: The law does not tell a judge what to do in every situation. Judges have tremendous discretion, within wide bounds, to do what they consider most fair. Examples? Sure: every time a judge decides a defendant's sentence, or sets conditions of probation, or decides whether evidence is admissible under Rule 403, he's making a fairness determination. 

One of the rights enshrined in the U.S. Constitution is the right to fairness—"due process." If judging weren't about fairness, a monkey or a computer could do it.

On this point I must disagree with my learned colleague. Although just and fair are synonyms, they do not mean, nor imply, the same idea. The very fact that they are two different words tells me that at some level, they do not refer to or embrace the same idea.

According to Merriam-Webster, if something is fair it is "marked by impartiality and honesty..." and it's free from bias. But fair also refers to an object or idea that is "superficially pleasing." It is that meaning that I think most of us associate with fair. We want a level playing field, we want to play by the same rules, we want a process that allows for honest and impartial competition.

Something is just, on the other hand, if it is based on or conforms to reason or fact or if it is "legally correct." In other words, while fair refers to the appearance of the thing, just refers to the underlying rules or laws. I think it is possible for something to be just, but not fair (or at least not have the appearance of fairness).

The right of a criminal defendant to confront the witnesses against him is an example of a rule that is just with at least the appearance of not being fair. If the prosecutor wants to introduce a report or records into evidence he must bring a person in to testify about those documents and the defendant has the right to cross examine that witness. The defendant, however, can introduce business records into evidence without bringing in an outside witness -- the state has no right of confrontation.

While the application of this right may not seem fair to the state, it is just. The state has the burden of proving beyond all reasonable doubt that the defendant committed a specific criminal act. The defendant has to prove nothing. Therefore the criminal defendant should have the right to question the witness as to the source of the records, the authenticity of the records, the methodology by which someone came to those conclusions and any other area that might tend to show bias, mistake or misconduct.

The rule is just, but not necessarily fair.