The basic tenet of the principle of fairness, or fair play (these two terms will be used synonymously throughout this essay) is that a political or moral obligation can be generated through the receipt of certain benefits, instead of through active consensual action. It can be employed both as a moral principle, and as a political (or law abiding) principle. Although the principle is useful for theoretical discussions about the nature of political obligation, its soundness as a moral principle and as a principle for legal obligation are both deeply flawed and therefore, in my opinion ultimately redundant. In this essay I will explain why I maintain this opinion by examining the strengths and weaknesses of the fairness principle when applied to moral and political obligations.
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The principle is set out as follows: “When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission…but the moral obligation to obey the rules in such circumstances is due to the cooperating members of the society, and they have the correlative moral right to obedience”  In this general outline Hart puts forward a great many of the foundations of what is now commonly known of as the principle of fairness. He states that a “joint enterprise”  is needed that must be embarked upon in order for the principle to apply. He also points out the fact that individuals have a “moral obligation”  to follow “the rules”  when they themselves have “benefited”  from this joint enterprise, specifically when this involves the submission of others. It is important also to note how Hart insists that those who have already submitted have a “moral right”  to the other individuals’ submission. Hart’s outline is a useful first illustration of how the principle of fairness might be considered a moral principle, but admittedly it is far too vague to examine and dissect in any great depth.
AJ Simmons, in his book ‘Moral Principle and Political Obligations’ examined Hart’s initial attempt. Among many questions, Simmons raises two points against Hart that cause problems for fair play as a moral principle. The first being the ambiguous role of participants and beneficiaries, more importantly the moral justification of requiring individuals to submit to particular burdens in order to validate the principle. The second being the role of distribution within the moral concept of fair play.
When looking at the first problem, the supposed moral obligations of participants and beneficiaries in the fairness principle, it is clear that Hart’s account is not detailed enough to examine meaningfully. In 1964 John Rawls expanded on Hart’s concept with ‘Legal Obligation and the Duty of Fair Play’ in which he clarified and strengthened the principle. The main points of Hart’s code preserved, however in addition Rawls states that “our having accepted and our intention to continue accepting the benefits of a just scheme of cooperation”  is the basis for fair play. This differs from Hart’s mere ‘benefiting’ in the fact that it makes the individual morally active in his acceptance of the benefits, instead of his merely passively (or even worse forcefully) accepting them. Now the individual must accept the benefit offered before having to make the sacrifice that is required of the principle.
With this clarification complete, the role of the individual in the fair play principle seems quite specific: The individual’s acceptance of benefits from an active scheme of social cooperation (of which the individual is a member) requires a certain fair sacrifice if those benefits are the result of the fair sacrifice of other members  . However, does the principle in any way make the individual’s obligation morally sound? It is easy to see how the principle at its most fundamental, could be just as easily used to achieve immoral ends as moral ends. For example it could be employed in the constitution of a new criminal organisation The principle of fairness dictates that because every member apart from the individual has taken on the burden of killing a police officer, and this is evidently making it easier for the individual to deal his drugs, its only fair that that the individual kill a police officer as well.
Rawls tries to steer clear of these undesirable uses of fair play by including a stipulation that an individual’s obligation to the rules can only arise when the enterprise is just. However as Simmons points out, Rawls states that this is an “essential condition”  but offers nothing to back up his claim  . I will therefore examine the two arguments that Simmons provides in order to justify Rawl’s claim that the enterprise must be just and see if this clarifies the claim that fair play is a sound moral principle.
The first argument that Simmons offers is concerned with the ends of a scheme and/or its intent. For this argument Simmons offers the following reasoning: “We cannot have obligations to do the morally impermissible, or to support schemes whose purposes are immoral or which promote immoral ends. Since unjust schemes fall within this category, we cannot have an obligation to cooperate within unjust schemes.”  This argument is problematic when analysing fair play’s moral soundness, as although it may seem to save the principle of fairness from moral ambiguity, it does not tie in with Rawl’s “justice condition”  at all. As Simmons himself points out “why does Rawls only disqualify unjust schemes, rather than all schemes which promote or aim at immoral ends?”  The answer to this question is that if one disqualified schemes with immoral ends, one would not safeguard the moral soundness of the principle, nor improve on its original purpose. Simmon’s first argument is a flawed attempt at trying to pin objective morality on to the principle of fair play when clearly the two are not concerned with the same aims.
Even Simmon’s proposed moral amendment is flawed in itself, as he claims that “we cannot have obligations to do the morally impermissible, or to support schemes whose purposes are immoral or which promote immoral ends”. But this does not guarantee fair play’s moral soundness. Of particular note is the fact that one could quite easily judge the “ends” and “purposes” of a scheme perfectly moral (and accept its benefits) only to find out that the means to achieving that cooperative’s ends are wholly immoral. For example a new neighbourhood watch is set up, that neighbours can voluntarily join and therefore receive the benefits of its protection. Its purpose is stated as “to protect our neighbours”. This does not seem particularly immoral, but when the neighbourhood watch starts tapping resident’s phones in order to “protect our neighbours”, the individual (who has voluntarily joined) is still obligated, by the fair play principle, to take his turn committing this immoral act. This shows how even Simmon’s amendment could not guarantee the principle’s moral soundness. The only moral soundness that the principle of fairness could stake a claim to, is that of its moral code that arises when an individual becomes a participant in a cooperative scheme, and this is what I shall be examining when I look at Simmon’s second argument for Rawl’s “justice condition”.
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Simmon’s second argument is concerned with the role of fair distribution within the cooperative scheme.  It argues that the individual is only bound to do his fair share in the enterprise if he himself has been receiving a fair share of the benefits. Simmons here is making a valid addition to Rawl’s stipulation that an individual is bound to do his fair share if he accepts benefits. It seems as though through adding this condition Simmons is ensuring that being bound to carry a fair burden is only acceptable if the individual is given a fair share of the the benefit (and accepts some). It guarantees “that the principle of fair play will apply only to individuals who have been fairly treated”.  By only being bound to the scheme when a fair share of the benefit is offered, this addition prevents individuals being bound to a scheme when only offered a fraction of their fair benefit. This is I think the closest that the principle of fairness gets to being a sound moral principle. It preserves the rights of individuals within cooperative enterprises, through relying on acceptance of benefits as a contract of obligation. It also prevents discrimination or exploitation, and it fairly distributes labour and reward. However this is only an internal morality that governs the behaviour of a group. Even if we accept this rule that ensures the moral soundness of the relationship inherent to the principle, there is still a strong case that entirely moral obligations of fair play (where the individual is receiving his fair benefit) can be used to persuade individuals to cooperate in schemes which involve either immoral ends or means.
The principle of fairness cannot be used to argue that one is obligated to obey the law. This becomes clear when looking at whether a modern day liberal democracy fits in with the “cooperative enterprise” that is essential for the principle to arise. Hart believed that political society is the most “complex example”  of a cooperative enterprise. Here the first problem arises: surely the majority of nations are either not democratic enough, or simply too large and too complex to be considered a voluntary or cooperative enterprise.
Simmons thinks this rules out fair play as a reason why people have an obligation to obey the law. He states that most citizens of a country “receive” benefits but very few could be said to “accept” them. This is certainly a valid point. The types of benefits that citizens of a country receive do not fit the standard model of what Hart and Rawls had in mind. They are not tangible items that can be weighed up and shared, they are benefits such as national security, mandatory education, and law enforcement. Simmons calls these “open benefits”  as they are very hard to avoid receiving (in fact it seems the only way to avoid these benefits would be to leave the country). Therefore, Simmons argues, open benefits do not apply to fair play as one never really accepts them. It is also hard to see how our model of a modern democracy could be classed as a cooperative scheme with a shared burden. It would be hard to find someone that would justify their law abiding because they are sharing a burden with their fellow citizens in order to reap the benefits that this entails. Simmons argues that people have other reasons for obeying the law, such as “blind habit” “fear of sanctions” and the belief that many crimes are immoral regardless of fair play.  I would have to agree with Simmons here, it does not seem feasible that the principle of fairness really is the reason why we have an obligation to obey the law, when those laws are handed down to us from a government and not agreed upon in an inclusive manner. Fair play could contribute to the fact that most people feel an obligation to obey the law, especially when disobedience would have a detrimental affect to other individuals in ones immediate society (for example noise pollution or fly tipping). But it does not obligate us to follow all laws set down by government, because we are not voluntary members of a huge cooperative and not all of us do accept a fair benefit for our shared burden. It is simply not a realistic model to employ when arguing the case for obedience to the law.
Word count: 1988
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