The Foundations of Fairness
It seems there is no other place in society associated with fairness more than the court. Or less if you’re an active social media user talking about the Ukrainian judiciary.
How many times do you think the word “fairness” is mentioned in the Constitution of Ukraine? The correct answer is once, in Article 95: “The budget system of Ukraine is based on the principles of a fair and impartial distribution of public wealth among citizens and territorial communities”.
And what about the section on the judiciary? Article 129 of the Constitution states: “A judge shall be independent in the administering justice and shall be guided by the rule of law”.
Wow! Maybe we’ve just found the problem? Let’s quickly amend Article 129 of the Constitution, add fairness, and that’s it — we have a fair court!
But let’s continue this thought experiment. How many times do you think the word “fairness” appears in the US Constitution? You won’t believe it — only once! The Fifth Amendment reads: “Private property shall not be taken for public use, without just [fair] compensation”.
Let’s continue to follow the logic of the Constitution. Instead of the word “fairness”, the Constitution says, “rule of law”. Maybe there is something there about fairness?
Let’s turn to the canonical text — the conclusion of the Venice Commission in 2011, which states that the rule of law consists of six elements:
1) legality; 2) legal certainty; 3) prohibition of arbitrariness; 4) access to justice, represented by independent and impartial courts; 5) respect for human rights; 6) prohibition of discrimination and equality before the law.
Did you notice the word “fairness”?
In other words, the rule of law, as an ideal of the legal state we want to become, does not contain the concept of fairness at all.
These six elements that make up the rule of law began to take shape as soon as the first sprouts of human civilisation appeared, and each word in these six elements has been literally honed over dozens of generations, from ancient Rome to the present day.
So why does neither the Ukrainian nor the American Constitution nor the European legal canon contain the word “fairness”?
Before providing my answer, I will turn to art.
What film is most often cited by American lawyers as the film that inspired them to choose their profession? It is the film To Kill a Mockingbird, based on Harper Lee’s autobiographical novel, which is considered one of the best films of the twentieth century.
The plot is quite simple: in a Southern US state, a white girl accuses an African American man of rape. The main character, a lawyer, Atticus Finch, a widower raising two children, defends him. The film culminates in Atticus’s closing speech. The director employs a clever technique, positioning the camera right in the middle of the jurors, creating a feeling that the verdict is being delivered by us.
What does Atticus speak about in his seven-minute closing speech? Perhaps about justice? Or about the rule of law?
No. He talks about how the woman was raped by a left-handed man, while the accused, Tom Robinson, has a poorly functioning left hand — he is right-handed. And all the evidence against him consists of the testimony of two witnesses — the girl herself and her father — who contradict each other and are inconsistent.
Remember 12 Angry Men, where one stubborn juror convinces the other eleven that an African American teenager is not guilty of his father’s death.
Juror #8 faces off against Juror #3, a stockbroker who is a very logical and confident member of the jury. Until the very end, he supports the prosecution, consistently substantiating each point, but is forced to agree that they are dubious gradually. And now, it’s time to play the trump card. The entire prosecution case is essentially based on the testimony of a neighbour who claimed to have witnessed the murder. She, like Juror #3, wears glasses and, in her testimony, stressed that she “saw the moment of the murder when she was going to bed”.
“No one goes to bed with glasses on”, says Juror #3, stunned. This is the culmination of the discussion, after which everyone votes for not guilty.
What do these two film stories tell us? Why do two of the most famous films about the court have climactic moments that focus on the left hand and glasses, while the constitution and the rule of law are not mentioned?
The court is looking for the truth, hard facts, and evidence. The question the court answers is: what happened? The Way it answers this question is called Justice.
Do you remember the verdicts of the jury in these two films? “12 Angry Men” — not guilty, “To Kill a Mockingbird” — guilty. Why do we call one verdict fair and the other not? Because in one case, the jury found the truth and acted on it; in the other, the truth was also before their eyes, but they ignored it.
For centuries, legal thought has been polishing the algorithm of how a court should work and how it seeks the truth, and society reasonably assumes that if you follow this algorithm, the result will be fair. That is why human rights, prohibition of discrimination, equality, legality, access to justice with independent and impartial courts, prohibition of arbitrariness and certainty are all about Fairness as a process, not a predetermined result.
The foundation of fairness is truth, and a fair trial is a trial in which truth prevails. Truth is not a philosophical category detached from life. The truth is like Tom Robinson’s left hand or a witness who took off her glasses before going to bed. Ultimately, this whole complex construct called “justice” is designed to answer these questions and, once answered, to give an honest interpretation.
Remember how the Stalinist courts worked. Their key task was to make a person confess. Think about this paradox — one of the most totalitarian countries still followed the process, but instead of seeking the truth, it created a surrogate for it — a confession. Then prosecutor Vyshynskyi would say: “Confession is the queen of evidence”. The whole Soviet judicial system was built on this concept, and that is why we call it unfair because no one was seeking the truth, instead replacing it with the search for confessions.
So, what are the foundations of fairness?
When I think of this, I think of Roma Ratushnyi. I think of his incredible ability to unite people in the search for and defence of the truth. I remember his stubborn persistence in forcing the authorities to follow procedures designed to find and protect the truth.
The foundation of fairness is the ability to call a spade a spade. Fighting for the truth with a smile on your face. To take responsibility. To form meanings. Do not hide behind formalities, but respect the processes designed to find the truth and apply them. Fight for your values and your country. Remember first about others and then about yourself.
Roma once tweeted: “The more Russians we kill now, the fewer Russians our children will have to kill”. I would like to see that, in addition to fewer Russians, we teach our children to live by the truth and the fairness that is built upon it. This is within our power because we are standing on the shoulders of the Titans.
This is the fact. It is the truth. This is the foundation.
