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If any group is to endure over time, individual frustrations, while inevitable, must be usually experienced as acceptable, or at least tolerable. Failing that, little would prevent the losers in these conflicts from leaving or revolting, which would be cumulatively debilitating to the group. As opposed to holding law’s job to impose order and police infringers, the second approach suggests that finding the balance between group and individual desires is the ‘major difficulty of all law—the problem of really getting a fresh start in relations between litigants after disposition of a trouble-case. This is the problem not only of keeping settled what has been legally settled, but of killing off the grievance tension’ . While an imposed order can be sufficient for the group itself, the fairness model goes further to consider the party that failed to achieve its goals. It is not merely losing that creates a lasting problem, but what the person feels and understands about why he lost. ‘[It] is not the fact of suffering, by itself, that human beings find intolerable (…). Rather, it is the threatened meaninglessness of suffering and good fortune alike that is unacceptable’ . Persons have demonstrated a willingness to accept inequalities and unfavourable outcomes if they can view the process resulting in those ends as having been fair. While fairness cannot guarantee a ‘win,’ the expectation is that the complaint will at some level have been heard, considered, and resolved according to known standards. When those standards are satisfied, the outcome is usually deemed ‘just’ by the rules operable within the group. Accordingly, Conley and O’Barr documented the power of this desire for fair treatment when observing that even winners in small claims court still felt cheated if they have not been allowed an opportunity to adequately voice their felt injuries. Should this acquiescence to outcomes not characterize the majority of disputants, the viability of the social group is much in question, whatever the amount of force exerted by authorities to quell dissatisfaction. In the aggregate, therefore, perceived fairness of social systems is critical. While actual equality of outcomes cannot be assured given the unevenness of both natural endowments and personal opportunities, structural inequality tracking legal inequities can be toxic to any group’s long-term viability. Even in environments where there are strict hierarchies in which one expects a higher ranked person to inevitably receive more benefits, one still expects a person similarly situated to oneself to have no undue advantages. No dispute resolution system, therefore, can entirely avoid the problem of perceived fairness, or for very long. After reviewing the evolutionary foundations for the felt experience of the fairness of situations, the theoretical productivity of this theory of law is explored through application to a confounding problem within law and society, how to properly model the relationship between law and custom.

Publication Date

2024

Book Title

Research Handbook on Legal Evolution

Book Author/Editor

Wojciech Załuski, Sacha Bourgeois-Gironde, Adam Dyrda

Publisher

Edward Elgar

ISBN

978-1803921815

Keywords

Fairness, Law, Custom

Disciplines

Law and Society | Social and Cultural Anthropology

The Fairness Model of Legal Institutions

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