Hover Through Fog and Filthy Air


I’ve long mistrusted the argumentum ad lexicon. English-language dictionaries are descriptive, not prescriptive, so any argument that relies on a dictionary definition is showing a weak hand to begin with. Then, a good dictionary will show enough different definitions for a word that the arguer can base a sophistical argument on the one that he thinks applies. Like this, from my colleague, Houston DWI attorney Paul B. Kennedy:

According to Merriam-Webster, if something is fair it is “marked by impartiality and honesty…” and it’s free from bias. But fair also refers to an object or idea that is “superficially pleasing.” It is that meaning that I think most of us associate with fair.

This particular discussion started with Paul’s critique of prosecutor Marc Brown’s campaign signs, which bill Marc as “Integrity * Tough * Conservative” (could nobody in that campaign think up, for the sake of grammatical agreement, an adjective conveying “integrity”? Honest—upright—righteous—ethical—principled?). On Facebook Paul commented, “We don’t need a judge who’s ‘tough,’ we need judges who are ‘fair.’” This is reasonable.

At the moment Marc is a politician trying to win an election. He’s not disclaiming fairness—I know Marc, and he might make a very fair judge, but he’s using a Scared White Republican trigger word—”tough.” It’s silly, but I don’t fault Marc for using it. “Tough” and “fair” are not mutually exclusive, but if there is one trait that everyone should agree a judge needs, it would be fairness.

Then the discussion turned just plain silly. One of Paul’s Facebook friends responded:

it’s not ‘fair’ that you need…it’s ‘just.’ Sometimes the ‘just’ thing to do and the ‘fair’ thing to do are not the same. If you want a partial umpire in a factual dispute, then be prepared for justice not always being fair. To me, ‘tough’ and conservative.’ portray the ideas that he will not allow his heart to make decisions from the bench. Since that is how the legal system was meant to be, then I think he is using the right words.

This is nonsense. (More of the discussion, if you care, here on Facebook. Facebook is gonna kill the blog comment section.)

Somehow Paul’s commenter has got the idea that “just” and “fair” have different meanings. It’s not at all clear how she thinks they differ (“If you want a partial umpire . . .”? Hell, yeah, I want a partial umpire. But then I’m not looking for justice or fairness; I’m looking for a larger edge). It’s a little clearer how Paul thinks they differ:

You can be just without being fair, but you can’t be fair without being just.

“Fair” is to “just” as the “sizzle” is to the “steak.” Our job is to seek what is just – and that’s different than fair.

This is the argumentum ad lexicon: Paul’s dictionary says that “just” means “having a basis in or conforming to fact or reason . . . reasonable” and that “fair” means “superficially pleasing.” So just=steak, fair=sizzle.

My OED can beat up your dictionary: its definitions of just take a full page, and its definitions of fair (adj) take up three pages. But I don’t need to crack it to know that when we say that a decision is just we don’t mean that it’s reasonable, and when we talk about a judge being fair we don’t mean that he’s superficially pleasing.

“Just” and “fair” are wildly subjective terms. There is no consensus on what constitutes justice. But only a SWR would argue with a straight face that, as long as he’s tough, it’s okay if a judge is unfair; and only a lawyer would take eight paragraphs to argue with a straight face that an unfair result might be just or an unjust result might be fair.

Fair is just and just is fair.


0 responses to “Hover Through Fog and Filthy Air”

  1. I think a lot of people are fond of using dictionaries for two reasons. First, Justice Scalia loves his dictionary. Second, the Code Construction Act basically tells us we have to:

    § 311.011. Common and Technical Usage of Words

    (a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.

    Now, I understand that a legal argument is different from a Facebook argument, and I agree with you that just and fair are synonymous (or should be… maybe we have a perverted sense of justice in today’s society… but that wouldn’t be consistent with anything any of us have ever seen in real life, would it?). But, I think a lot of legal thinkers are predisposed to using a dictionary because language is such an important part of argument, and I, for one, cannot think of any other place where there is even a semblance of agreement on the common usage of ordinary words.

    • Judge Scalia loves Noah Webster’s 1828 dictionary, because it gives us an insight into what the words meant then.

      Problems with using the dictionary as the key to “common usage”: There are lots of dictionaries, and most of them basically suck; even if we all agreed on which dictionary to use (the American Heritage or the OED), there might be three pages of definitions of an important word. Which allows the person arguing from the dictionary to pick a definition (“superficially attractive”) that has no relation to how the word is commonly used in the context.

  2. One of the few things I remember from law school was Prof. Russell Weintraub referring to the American Heritage Dictionary as a Compendium of Common Error.

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