What's Fair?

Are our judgments about fairness based on reason or emotions?

Posted Oct 09, 2019

Do we decide what’s fair based upon reason or emotions? Considering that our emotions are always on call, it could very well be a trick question. And yet, this question is central to the functioning of our legal system, our notions of responsibility, our appraisal of a person’s character, and many elements of social, communal interaction. It is a question that early political philosophers took on, albeit with diverging assumptions as to the nature of the emotions. Some felt that emotions were uncontrollable passions that distorted reasoning, or affects that weakened the flourishing of the will. Some separated emotions into a set of moral emotions that aided us to make ethical decisions, and some had trouble distinguishing emotions from instinctual drives, like lust or rage, that included the expression of emotions.

The question of the conditions by which we make judgments of fairness would seem, like any other psychological query, to require reflecting upon the evolutionary, developmental story of the emotions involved. When one judges whether another person or creature has been fair, the emotional state of empathy plays a crucial role.

Empathy has been studied extensively. Some robust findings are that the perception of another person’s emotional state tends to activate feelings and brain areas pertaining to one’s own feeling state. There are nuances in this data, for example when one engages in perspective-taking, i.e. putting oneself in someone else’s shoes, there are differences in areas of brain stimulation, which, along with other data from psychology and animal ethology, suggest that empathy is a set of evolved processes.

The earliest form of empathy might be attachment itself, and then ‘emotional contagion’, a type of affective resonance where an individual (unconsciously, and possibly through subtle nonverbal cues) picks up the emotional state of people around her, think for example of how infants are agile at taking on the emotions of their caregivers. The next step might be the ability to cognitively, usually consciously, empathize with the situation of another creature. And the most abstract may be the ability to take the perspective of another creature.

There are several models of empathy, from the theory that empathy is a type of simulation, where we imagine what it might be like to actually be in the situation another person is in, to perception-action models that emphasize the give and take relationship of the active mind engaging the world through its sensory equipment. One recent model of empathy by Decety and colleagues suggests four major components: a type of affective sharing based on perception-action coupling, a judgment of the distinction and relation between self and other, a type of mental flexibility which allows the ability to adopt the perspective of another, and finally, empathy as a form of regulating one’s own emotions in a social scenario.

If we get back to the question, how do we decide what is and is not fair, we must consider that this three-layered empathy complex probably evolved mostly for aiding the creature to interact with conspecifics in the same in-group. This would mean that we experience empathy more, or only when, considering members of our own in-group, which would suggest that making a decision regarding fairness feels different, i.e. generates the set of empathetic emotions, only in certain cases. If this were true, then making a judgment about fairness of deserved punishment concerning two individuals in the same situation, say your cousin who is being sentenced for drunk driving, and someone on the other side of town who is being sentenced for the same crime, will feel different for you.

Whether it is simply affective resonance of matching their emotional state, or consciously trying to understand what it is like to be them, feeling empathy for someone changes the reasoning process. Reasoning about fairness in the case of in-group members may be different, i.e. more empathetic, judgment than reasoning about non-group members.

Of course, being judged by a set of peers (i.e. other members of your in-group), as embedded in the legal system as the jury process is a fairly old and somewhat reliable cultural practice. Jury selection is a notoriously fraught process where the defense and prosecution teams carefully decide upon how individual jurors will view the defendant. Will they consider her a member of their in-group? Will it be possible for the lawyer to get the juror on ‘their side’?

Further questions arise as well, like how large can one’s in-group be? Is it more accurate to say there are concentric circles of in-groups, say from the brotherhood of man to ethnic groups, neighbors, and family? If so, is there a continuum of feelings of empathy, from a little blip for making a judgment of fairness for someone who went to the same high school to someone who likes the same hockey team, to surges of empathy for intimate friends? 

Even more complex questions arise about our empathetic capacity for non-human creatures, notice how the death of an animal in a movie elicits a more pronounced response than the death of several henchmen characters in action movies. Some claim that when we enter the realm of ethics, intellectual considerations of fairness we make are no longer reducible to empathy. According to others, there may be a fundamental difference between our knowledge of external objects, our self-knowledge and our knowledge of others.

Now that we have some clarity on the role played by emotions, at least empathy, how should we characterize reasoned judgments? These are judgments based on some critical comprehension of the issue at hand and subsequent logical contemplation of the matter that results in a decision. Such a judgment must be based on the facts of the case, for example, what are the reasons given for such action, what is the context, at what time did the act take place, etc. Beyond the facts of the case, which can be presented rhetorically in a multitude of ways, there are the implications of the judgment made. For example, the implications of gambling a hypothetical amount of ‘money’ in a psychology experiment are very different from those for gambling with real rupees in a casino.

The implications of a decision about fairness can come to frame the reasoned judgment, they become a factor, a part of the set of pertinent facts to be considered by rational processes. But this factor has embedded elements of prospective emotions and imagination. Maybe a more accurate question is: are emotions, like empathy, the same kind of facts to be taken into account as other kinds of facts, like the causes and consequences of a given act? Does a hint of empathy affect the reasoned judgment as much as a simple fact about the case, such as whether the crime being judged took place during the day or the night?

A reasoned judgment is always based upon the facts of the case, and some cases include more emotional facts than others. Therefore, a decision concerning fairness is always dependent upon the level and type of emotion that informs the reasoned judgment being made. So, I guess it was a trick question, the trick being that our colloquial descriptions of reason have yet to take in the psychological evidence that emotion is one of the rivers that flow into the lake of Reason. It is a river of swirling currents that brings the black soot down from the mountains, emotions are like a column of water that brings inordinate fertility to contemplative fields.

References

Damasio, Antonio R. (1994). Descartes' error : emotion, reason, and the human brain. New York :G.P. Putnam,

Decety, J. (2007), ‘A social cognitive neuroscience model of human empathy’, in Fundamentals of Social Neuroscience, ed. E. Harmon-Jones and P. Winkielman (New York: Guilford Press).

de Waal, F.B.M. (1996), Good Natured: The Origins of Right and Wrong in Humans and Other Animals (Cambridge, MA: Harvard University Press).

de Waal, F. B. M. (2007). The 'Russian doll' model of empathy and imitation. In S. Bråten (Ed.), Advances in consciousness research: Vol. 68. On being moved: From mirror neurons to empathy (pp. 49-69). Amsterdam, Netherlands: John Benjamins Publishing Company.

Preston, S.D. & de Waal, F.B.M. (2002), ‘Empathy: Its ultimate and proximate bases’, Behavioral & Brain Sciences, 25, pp. 1–72.

Singer, Peter. (ed.) (1977).  Animal Liberation. NY: Avon Books.

Thompson, E. (2005), ‘Empathy and human experience’, in Science, Religion, and the Human Experience, ed. J.D. Proctor (New York: Oxford University Press).

Zahavi, D. (2014). Empathy and Other-Directed Intentionality, Topoi 33:129–142