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Sunday, January 20 , 2019, 6:14 pm | Fair 60º


Brian Burke: About Your Divorce (Letter 18)

Monkey business sheds light on the principle of fairness

Dear Nick and Nora:

If “fairness” is something other than a subjective reaction, it probably began with empirically demonstrated first principles or first principles that are self-evident.

This is how 10th-grade geometry worked. There were definitions (“a point is a position in space without size”), common notions (“if two quantities are both equal to a third quantity, they are equal to each other”) and axioms (“through any two points there is only one line”). Euclidian geometry begins with 23 definitions, five common notions and five axioms, and then builds on them to reach conclusions about the world that otherwise would be unascertainable.

The Euclidian approach has been a gold standard for philosophical systems. Start with something that can be empirically demonstrated or that is self-evident. For René Descartes, “I think, therefore I am,” and he’s off to the races. American Revolutionaries justified severing ties with their mother country by citing violation of “self-evident” truths.

Utilitarian philosophy is based on the notion that whatever maximizes pleasure over pain is good. Ludwig Wittgenstein’s Tractatus Logico-Philosophicus builds on seven propositions. The first is, “The world is everything that is the case.” (I don’t get it either, but there it is.)

The problem with “fairness” is with first premises. Is there general agreement on any aspect of “fairness,” or does it all depend on whether your school played games with rackets, balls or horses?

For philosopher John Rawls, a proposition was “fair” if you could accept it as fair without knowing how it would actually operate. A system for the distribution and redistribution of wealth that seems “fair” whether you will be among the least wealthy 10 percent or the most wealthy 10 percent is “fair.” Rawls needs 500 pages of dense text to make his argument, suggesting that it’s anything but self-evident.

During the 40 years I knew him, Judge Lodge and I talked about the problem of “fairness” and consistently concluded that there didn’t seem to be a way to deduce what it was from first principles — and it couldn’t be induced from situations that were always fair or always unfair.

Then came the monkey business at the primatology lab at Emory University. If humans and non-human primates shared the same principle of “fairness,” that principle would have a claim transcending human subjectivity — and it could be the basis of a system of “natural law” not dependent on a shared notion of the divine.

According to a 2003 article in the prestigious journal Nature, Emory primatologists trained capuchin monkeys to trade a plastic token for food. The reward was usually a piece of cucumber, which the monkeys liked well enough to exert the effort to make the trade. While cucumber OK okay, it was grapes they really liked. The experiment involved placing two capuchin monkeys in positions from which they could see each other trading a token for a reward.

In 80 percent of the cases where one monkey observed that she was getting a cucumber for her tokens while the other monkey got grapes for her identical tokens, the cucumber-monkey either refused to trade her token for cucumber, rejected her reward, or threw either the token or the cucumber out of her cage. Is this the principle of “equal pay for equal work,” or even more generally, “like cases should be treated in the same way”?

Here is empirical evidence that can support some sort of a “first principle,” but what is it? If it has to do with equality, can it be used as the foundation for a system of “fairness”?

You are both convinced that there is such a thing as “fairness.” You think you know what it is, and you think “the judge” will agree with you. Obviously, one or the other is wrong, but if you could prove your argument on the basis of this monkey business, you will, at the very least, be listened to with interest.

(You may have noted that my description of the Emory monkeys was gender specific. That wasn’t an accident. While 80 percent of the female capuchins reacted to the inequality of the exchange for their tokens, the male monkeys considered the disparity inconsequential. According to the article, female capuchins are concerned about food. Male capuchins are worried about sex! If you don’t believe it, read the article: Brosnan, S.F. & de Waal, F.B.M. (2003). Monkeys Reject Unequal Pay. Nature, 425, 297-299.)

Your friend,


— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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