THE PURSUIT OF WORLDLINESS
 A blog by Barry Edelson


CRUEL JOKE 8:

Life's Not Fair,
But It Could Be



QUERIOUS
What do you think about that golfer with the bad leg who wants to be allowed to ride in a cart in tournaments?

ANTAGONĒ
It think it's horrible.

QUERIOUS
What's horrible about it? The fact that a court said he can use a cart, or the fact that professional golf doesn't want to let him?

ANTAGONĒ
Both.

QUERIOUS
How can they both be objectionable? They're mutually exclusive arguments.

ANTAGONĒ
Not at all. It's callous and ludicrous that the self-appointed golf police care more about their petty rules than about the people who play the game. But that doesn't make it any less absurd to pursue legal redress over such an insignificant issue.

QUERIOUS
It's not insignificant to a talented young man with a disease that prevents him from competing.

ANTAGONĒ
So what if he doesn't compete?

QUERIOUS
Is that right?

ANTAGONĒ
What does right and wrong have to do with it?

QUERIOUS
It seems to me that if someone is presented with an obstacle that others have the power to remove, then it is wrong for them to refuse to do so. I can't imagine anyone being hurt by enabling this one golfer to ride in a cart instead of walking the course. The only injured party that any of his opponents in this case can cite is "the game".

ANTAGONĒ
I agree with you completely, but that begs the question. Just because common sense would dictate a particular course of action, the law is not obligated to enforce it.

QUERIOUS
The law exists to protect people's rights.

ANTAGONĒ
I suppose that goes right to the heart of the matter: how do we define rights? Life, liberty and the pursuit of happiness have somehow ballooned into a veritable encyclopedia of group and individual rights, many of them in direct conflict with each other. We've gotten to a point where virtually every perceived injury, however slight, is followed by a call for legislation. For the Founding Fathers, one had the right under the law to live free of tyranny, period. That meant a life without fear of arbitrary government action, or without recourse in the law. Now, the law has been turned inside out to accommodate everyone's idiosyncratic notion of their personal rights. Where is my right to live without spilling hot coffee on myself, or falling off a ladder? Where, for that matter, is that golfer's right to play in the U.S. Open? As a society, we can no longer differentiate between injustice and simple unfairness.

QUERIOUS
For the most part, the difference between them is simply a matter of degree.

ANTAGONĒ
I never thought I would hear you argue in favor of moral relativism.

QUERIOUS
I do believe that some things are wrong and will always be wrong, no matter what the circumstances. But the law isn't strictly about the defense of morality. Exceeding the speed limit is against the law, and for obvious reasons of public safety, but who would argue that someone who speeds is guilty of moral depredation? On the other hand, someone who drives in a consistently reckless manner, with complete disregard for the lives of others, could be said to be exhibiting poor moral judgment and should be held accountable.

ANTAGONĒ
But the law, in principle, makes no distinction between the two, because once distinctions are made there is no way to continue to enforce it. The person driving 31 miles per hour is as guilty of speeding as the person going 75.

QUERIOUS
How can you say that? The severity of the penalties reflects the seriousness of the offense. They aren't assessed the same fine, any more than a murderer gets the same sentence as a burglar.

ANTAGONĒ
Even in the case of two different crimes, the punishment is largely the same. In fact, our courts hand out only two basic types of punishment: confinement and cash. The person who spends 10 years in jail for possession of a certain amount of cocaine suffers exactly the same fate as someone who is put away for the same amount of time for rape.

QUERIOUS
There are other sentences that you're overlooking. On one extreme there's the death penalty, and on the other there's community service.

ANTAGONĒ
You've just given two examples that demonstrate the justice system's limitations. Putting people to death makes no more sense to the public protection than sending criminals into the community to do volunteer work.

QUERIOUS
Let's not be ridiculous. Violent, hardened felons aren't given community service, and embezzlers aren't put on death row. The law clearly does make distinctions.

ANTAGONĒ
What you're talking about is rudimentary justice, but what I'm concerned about is how justice is being undermined by attempting to rule on fairness. Consider what's been lost in the struggle against racism since Martin Luther King was killed. He didn't argue that racism must be overcome because it's unfair. Of course it's unfair, but trying to eliminate unfairness is futile, and can lead us nowhere but down a path of endless recrimination, which is exactly the quagmire in which the civil rights movement has been stuck for years now. Everyone believes his life is more unfair than someone else's; how can the law ever effectively tackle such questions? No, Martin Luther King fought to end racism because it was immoral, because, as you say, it is wrong and will always be wrong. Even if the moral center shifts from one era to another — which it certainly does, your touching faith in moral absolutes notwithstanding — justice can only be effective when it is an expression of the moral convictions of a given time and place, because only then can it be deliberated and adjudicated. Fairness can only be quibbled over. If a man is convicted of a much-publicized crime, people may hold to their opinions about whether or not he is really guilty, but no one argues that, if he is in fact guilty, he deserves his punishment. On the other hand, in these muddled civil cases that are suffocating our courts, there is never a satisfactory outcome. No one can agree about whether there has even been any actual wrongdoing, let alone what the appropriate remedy would be if there were.

QUERIOUS
In the golfer's case the remedy is obvious: let the poor guy ride in his cart.

ANTAGONĒ
But his case is unusual in that respect. In most civil cases, the issue boils down to money, and how can anyone determine how much is fair? It just can't be done. How much is an accidental death worth? How much for an arm mangled on a factory floor? How much should someone be made to pay for calling a black man a nigger, or for making a pass at a subordinate? It's absurd even to try, and it just confuses the entire issue of justice in the public mind.

QUERIOUS
What does it matter what people think? If the law is based on morality, as you insist, then it must be consistent and objective and therefore immune from the whims of public opinion.

ANTAGONĒ
How can the law be objective where no objective law exists? The police and the courts can only enforce actual laws, not every individual's feeling that life has dealt him a bad hand. Who doesn't feel that way, at least some of the time? When the complaint is about unfairness rather than injustice, the courts should have no jurisdiction.

QUERIOUS
It seems to me you are simply describing the difference between civil and criminal cases. The law prescribes different burdens of proof and different rules of evidence, precisely because of the entirely different natures of civil and criminal prosecutions. Where would people go to settle their disputes if the courts couldn't hear them?

ANTAGONĒ
Where did they go in centuries past? Resorting to lawsuits is a very recent invention which Americans have turned into a national pastime.

QUERIOUS
Would you prefer to see a return to vigilante justice? Are you a fan of shootouts in the streets? The court system may have its flaws, but it's incomparably more civilized than the way disagreements were handled throughout most of history, when the men in charge were concerned with little but the preservation of their own power and the rest of the people were left to resolve their differences in any cruel manner they chose, as long as they didn't make trouble for the authorities. There's enough violence in the world as it is, thank you very much. I would just as soon seen our courts bogged down in lots of trivial civil trials than watch people club each other to death on every street corner.

ANTAGONĒ
These two extremes are not the only options. Why is it that whenever Americans need an example of anarchy, they invariably think of the semi-fictitious frontier society? There was surely confrontation and violence in that short-lived world, but not nearly as much as the Hollywood producers and deluded novelists who mythologized it have led us to believe. The poor living in today's inner cities almost certainly witness many more murders than anyone ever did living in the so-called Wild West. The reality of most of American life in the 19th century was that of ordinary town or rural existence, and the primary intellectual debate about the role of the state from the founding of the Republic to the Civil War centered on achieving a balance between the natural assertiveness of individuals and governments. That debate still rages on, but the creation of the monstrous, modern nation-state, whether democratic or totalitarian, has utterly shifted its terms. The legend of the self-made hero whose sense of moral justice was alone sufficient to conquer the chaos and random cruelty of life on the open prairie was little more than an entertaining release from the confinement and misery of urban life, and an expression of independence in response to the vastly expanding reach of the state. It also helped to gloss over our crimes of conquest, but that's another matter.

QUERIOUS
That romantic myth lives on in the minds of many. There are an awful lot of people still wandering the western states in search of some vague and undefined freedom they think is out there in the wild. Do you remember that story a few years ago about the young man from back East who was found dead in an abandoned bus on a trail in Alaska?

ANTAGONĒ
Yes, I do remember it.

QUERIOUS
He went out there determined to survive entirely on his own, with almost nothing in the way of modern supplies to help him. The strange part is that the accounts of his life make him sound like a rather normal and gregarious young man who just couldn't find a place for himself in the world. I suppose he wanted a life that was different from the one he had known, not that he knew what to look for. He obviously didn't, since he was thoroughly unprepared and it killed him.

ANTAGONĒ
Well, that's the danger, that people will continue to see the wild as an out, a place to escape from the rules to which all the rest of us manage to come to terms. How ironic that he camped out in that bus, when he was determined to get as far away from civilization as possible. His death symbolized exactly the opposite of his quest: that human society cannot be avoided entirely. It's sad and pathetic, though I find it difficult to find sympathy for such people.

QUERIOUS
Why doesn't that surprise me?

ANTAGONĒ
Why should I concern myself with the addled imaginations of maladjusted men who, for a variety of unhealthy reasons, fantasize about living beyond the reach of the state, and who believe that modern society is so inherently corrupt that they feel their very lives depend on abandoning it? The worst of the lot are the paranoid maniacs who arm themselves to the teeth to assert an allegedly God-given right to be left alone, a right that they somehow manage to find between the lines of the Bible and the Constitution.

QUERIOUS
Now you're the one arguing at the extremes and forsaking the middle. That confused kid wasn't some gun-toting fanatic who denounced all human interaction, any more than the average person spends his time hoping for an accident to happen so he can squeeze a few millions dollars out of some insurance company. Most people neither reject law and society nor abuse it.

ANTAGONĒ
I wish I could agree with you, but the fact of the matter is that the abuse of justice has become so commonplace that it is now the norm. I agree that the armageddonites in the Rocky Mountains with their arsenals of assault weapons represent a tiny minority of our nation's sociopaths, but the rest of our society is in fact sinking deeper and deeper into a warped dependency on the state. We expect the government — for which the people supposedly harbor a profound and traditional distrust — to shield us from every imaginable potential harm. We have forged an ironic marriage of two inherently contradictory notions of authority: we hate the government and continuously castigate it for its intrusiveness and incompetence, while we simultaneously demand that it eliminate all of life's unavoidable risks and serve as an instrument of our personal vengeance. Survivalists and plaintiffs have the same basic philosophy, namely, stay out of my way or somebody is going to have to pay. The only difference between them is that the one group looks to government to be its agent of justice, while the other sees the government as the agent they must seek justice against. I suppose they also differ in their choice of clothing and weaponry.

QUERIOUS
That brings us back to the same question. You can't easily separate justice and fairness, not if we're going to give people an outlet for their frustrations short of armed combat. If someone feels he's been wronged, however stupid and childish his complaint, I say let him go to court.

ANTAGONĒ
If judges could be trusted to throw out the truly bizarre cases, then I might agree with you. Unfortunately, our system of jurisprudence is based on precedent, and the more these nuisance cases pile up, the more opportunity there is for lawyers to win more and more of them, and the more incentive they have to round up clients who aren't exactly resistant to earning a tidy sum of cash in exchange for a few hours of testimony. The genie has long been out of the bottle.

QUERIOUS
I think a lot of this hand-wringing about lawsuits is exaggerated. Every day, thousands of very responsible judges see to it that dumb cases are thrown out of court, or at least handled in such a manner than juries can plainly see that they have little merit. Regrettably, only a handful of the most sensational outcomes makes it into the newspapers, leaving the mistaken impression that the system is collapsing around us. Ask the genuine victims of medical malpractice, workplace accidents or shoddily made products if they think it's easy to get justice in this world.

ANTAGONĒ
This may very well be true, but it's entirely beside the point. The problem is, and you can't deny it, that we have become a society that believes in entitlements. All these lawsuits actually make it harder, not easier, for anyone to get genuine justice. For example, there is hardly anyone working in America today, with the possible exception of white males between the ages of 21 and 50, who can't make a case for discrimination when they lose their job. It's still illegal to sue for the most common egregious behavior exhibited by bosses — that is, treating their employees like dirt — but almost everyone can claim that their race, ethnicity, gender, sexual orientation, age, hair color or taste in office furniture was the reason they were unjustly fired or denied a promotion. The prevalent attitude is that we're all entitled to whatever we want, and if we don't get it, it's somebody else's fault. We have made justice so cheap that it's almost worthless. If I had my choice, the words "I deserve it" would be stricken from the English language.

QUERIOUS
Maybe you can get Congress to pass a law, and then you could sue anyone who broke it. Could be worth some money.

ANTAGONĒ
You may laugh, but it's a very serious problem.

QUERIOUS
After centuries in which there was no justice for ordinary people, during which terrible discrimination and abuse were perpetrated by every imaginable kind of authority figure, it's only natural that the pendulum would now swing in favor of too much justice, rather than too little. This is the first era in which individual rights have even seen the light of day. The system will come to its senses again, have faith.

ANTAGONĒ
By the time that happens, our society will be a shambles, and for what? For the illusory pursuit of fairness. You may think this system helps people in distress, but I happen to believe that justice is usually served without resort either to the legal system or to personal acts of retaliation.

QUERIOUS How so?

ANTAGONĒ
Because people tend to get the lives they deserve. I came to this realization a few years ago, when I worked in an office where there was a manager who was universally detested by the staff. She was a vain, insensitive, self-involved person who didn't seem to notice that she wasn't the only human being on the planet. Everyone made the same predictable, mundane comments about her, such as, "I could do her job with my eyes closed," or, "Can you believe what they're paying her?" After a while it occurred to me that while all of the complaints against her were expressed in terms of money and position, this woman had a miserable life despite her nominally successful career. She had an abrasive personality, she wasn't particularly attractive, she lived alone, had never been married and had no children. She went home every night to an empty house. I realized that the only thing in the world that this woman had that all the people below her in the company didn't have was her title and her salary. Every one of us was better off than she was in every imaginable way, except that she made a lot more money than we did and could boss us around for a few hours a day.

QUERIOUS
Most people would say that that's the most important thing, that the essence of the injustice is her success and her power in spite of her lousy personality.

ANTAGONĒ
But is it really? She was a horrible person, who lived a lonely, horrible life. What kind of success is that? Don't get me wrong; I didn't pity this woman. She treated her staff terribly, and sympathy must end at the point where victimization begins. But did anyone consider for a moment that she didn't have to be fired, humiliated and stripped of everything in her life in order to get what she had coming to her? Of course not, because we're not satisfied unless people suffer official consequences for their actions. We demand that someone be disgraced, or incarcerated, or forced to pay large damages or else we're convinced that she's won and we've lost. This blindness even creeps into the way we raise our children. We say to them in one breath, "There are more important things than money," but the next moment we say of some Wall Street huckster, "He's laughing all the way to the bank." Well, which of those two statements do we really believe? What exactly does the rich crook have that you or I should want, except his money? Why don't we tell our kids instead, "You wouldn't want to live with his conscience."

QUERIOUS
I think what bothers people is that such a user generally doesn't have a conscience and is incapable of remorse.

ANTAGONĒ
Then if he doesn't, he is an empty shell of a man, which should make him even less of an object of envy. What really bothers most people is that the guy who "gets away with it" has what we're all supposed to want — mainly, lots of material possessions and the means to get more of them — and we don't. Seeing the bad guy get his comeuppance has nothing whatsoever to do with justice; it merely satisfies the thirst for vengeance of the powerless against the powerful, which is utterly irrational because it profits them not one penny.

QUERIOUS
Unless they have a lawsuit against him.

ANTAGONĒ
Exactly. Since the French Revolution it's been said that the poor don't really want liberty, equality and fraternity, they want the rich's money. Nevertheless, notwithstanding the undeserved suffering of innocents brought on by war, repression and various other catastrophes, people in a free society generally do suffer consequences for their wrongdoings, even if no one knows what they've done. At the very least, they have to live within the hollowness of their miserable selves, which, if you believe in the soul as you claim you do, is surely a punishment as terrible as any that could possibly be meted out by the courts. I'm not suggesting that society can get along without a system of justice, because we need to protect ourselves from the vile behavior of others, but where we go wrong is in assuming that all of life is predicated upon the objective delineations of crime and punishment, and that we cannot get our due unless subjective, human judgment is decided in our favor.

QUERIOUS
So what would you have our young golfer do? Suffer in silence?

ANTAGONĒ
I expect him to have a sense of honor and pride which would prevent him from making a public spectacle out of his private misfortune.

QUERIOUS
In other words, you would expect him to forgo any chance of pursuing a dream that he has had his heart set on since childhood? Your standards are unrealistically high, because few people are that decent or self-effacing.

ANTAGONĒ
You and I and everyone else alive have dreams that we have been unable to fulfill for reasons beyond our control. Whom do we sue? Does the government owe each and every one of us a law to support our claim that we have been treated unfairly?

QUERIOUS
The government owes us the protection of the laws that exist.

ANTAGONĒ
Even if many of those laws ought not to exist in the first place? Even if the law, as Dickens so gracefully expressed it, is an arse?

QUERIOUS
You said yourself that we have to live within the rules of society, that there's no place left to run and hide.

ANTAGONĒ
Except within ourselves, secure in the knowledge that no one really gets away with anything, because the wicked truly suffer from the inevitable worthlessness of their lives.

QUERIOUS
Few would accept that as a satisfactory kind of justice.

ANTAGONĒ
Ask a political prisoner if there is any other kind.

posted October 2007




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