Complacency: Fairness v Justice #thoughtpiece

One of my ‘not sure where this is going’ pieces.

As a Cub Scout, back in the 1960s we were taken to a Police Station, one of those educational trips that I recall with a mix of fascination and horror (the gas works visit is memorable only for the appalling smell and the fact the Troop leader slipped all the way down a metal staircase using words I’d not heard before). One of the things that I remember was the Sergeant taking our fingerprints and telling us that these were unique to each of us: ‘so you’re all individuals, you’re all different’.

Two statements that have  very different consequences.

It’s so easy to focus on the differences. Language, culture, social mores, skin pigmentation, dress, diet… And that’s why we need some sort of social controls, to make sure that those differences don’t become inequalities. It’s part of a civilised society that it permits individualism and doesn’t abhor differences. But some rules are needed. Guidance, to ensure a balance.

But man-made rules have a habit of entrenching anomalies. Certainty begets uniformity which is anathema to individualism. And the human condition comes in an almost infinite variety of alternates. Binary gender distinctions cause difficulties when the expectations of gender definition explode into an almost myriad of options as it has recently.

‘We want to be treated fairly. We need rules.’

Another two statements with very different impacts because if I learnt anything as a lawyer, it is that justice (in the sense of the proper application of the rules) does not always mean fairness (as in achieving a balance between two positions).

Caster Semenya is currently before the Court of Arbitration in Sport. If you don’t know the case then in summary Semenya is a woman who generates freakishly high levels – ‘male’ levels – of testosterone. She won the Olympic 800 metre title and the first three in that race had a similar characteristic. The next three didn’t and one of them said, with a certain force ‘there were two races going on out there’.

For a period Semenya could only compete by artificially reducing – with chemicals – her testosterone. That requirement was suspended for research to be done and since then she has raced without ‘correction’.

Men and women have undertaken different competitions since sport was codified because of the hormones men generate enabling greater musculature and endurance. But even so both men and women have a range of testosterone levels, as well as other features: height, muscle bulk, metabolisms etc. You take your opponent as you find them. You have to accept those who are ‘freakishly’ endowed. Michael Phelps wouldn’t have had his success as a swimmer without his unusual frame and feet.

The rules after the Semenya case will be ‘unfair’ to someone, when they are settled. They cannot avoid that. But justice will be served by certainty. And eventually you just have to accept that, where you impose rules, sometimes there will be an anomalous result which will be categorised as unfair.

Difficult cases make bad law.

Another cliche from my legal career. If you make exceptions for the exceptional then that can undermine the basic premise.

Which brings me to Shemima Begum and the question of her citizenship. Should someone who left England for the caliphate in Syria and ISIS be allowed back when it collapses, even if she expresses no regrets, justifies egregious terrorist acts against innocent concert goers and challenges the authorities to find evidence against her?

The rules, to me are clear. She’s a British Citizen. The Bangladeshi antecedents of her parents are irrelevant. So if she turns up at a British consulate they should do what they would do for any other citizen. Help them get back here. It is also an international obligation.

The fear, as expressed by the Home Secretary, who has sought to strip her of her citizenship is that the law is inadequate to deal with her ‘crimes’and her threat. We cannot gather the sort of evidence that is needed to succeed against her in a British Court, he warns. She is a danger to our security.

Maybe. Very possibly. But bend the rules at your peril, Mr Home Secretary. And if she’s a danger? There are plenty of laws to control her if proved. And if not, as with other home  grown potential terrorists, use the security services to monitor her.No, it’s far from foolproof; yes it will be devastating is she manages to carry out an atrocity. But deny her the rights of citizenship? We are on the slippery slope that led the US to set up their holding camp in Guantanamo Bay, to justify ‘extraordinary rendition’, to condone torture on the spurious grounds that the US does not carry out torture so by definition what it does cannot be torture. Let’s face it we were complicit in all this behaviours and we need to be better than that.

We live in a Society where the rule of law is a paramount but delicate construct. It has often failed us; the lack of control over global social media companies is a disgrace to many but be careful what you wish for in imposing wide controls. Censorship benefits dictators and warlords, not democracies. But yes, some control is probably essential but treat lightly and accept that too little is always better than too much.

And Ms Begum? Is she a terrorist? A naive youngster who’s been indoctrinated? Victim or criminal or something of both? Justice says she must be allowed back. Fairness says she shouldn’t be tried and found guilty in either the press or the Home Secretary’s Office or the Court of Public Opinion but in a  properly constituted and rigorously run Court of Law. Humanity says we should always be careful before we demonise any individual.

We cannot complacently take the things that make living in the UK worthwhile and ignore them because it suits an agenda. I’ll give you an historic example.

In 1974 two bombs went off in Birmingham pubs killing 21 and injuring 182. The Provisional IRA never  claimed responsibility though later it was found likely to have been them and the outcry was rightly huge. The hunt for the guilty consumed the national agenda. Six Irishmen were soon arrested, found guilty and imprisoned for life. 15 years later their convictions were quashed as unsafe; the police fabricated evidence.

Had we had the death penalty and public hanging it would have been a spectacle championed by many. And it would have been wrong, so wrong. It is too easy to assume, to ignore factors that fail to support a particular narrative, particularity when the atmosphere is raw and at its most febrile. And when that happens, not only are innocent people  damaged, but the rule of law also takes a knock. And that is the real tragedy.

It has taken us centuries to get to this point. We cannot – must not – let the seductive and reductive arguments of opinion-formers and politicians – especially short leash politicians intent on creating a persona; yes, Mr Javid, I mean you – to undermine this.

Sometimes Justice and Fairness are incompatible but mostly they make for comfortable bedfellows. Like any good marriage, there will be falling out and disagreements but they survive with understanding and compromise. But most of all they thrive if we fight complacency.

That way we might just get the society we desire even if, often times, we don’t deserve it.

Four years ago yesterday the first post for 1000 Voices Speak For Compassion was put up. While this is possibly slightly off point the anniversary inspired me to put this up. Maybe you might go and have a look at the FB group here and see what else has emerged. 

About TanGental

My name is Geoff Le Pard. Once I was a lawyer; now I am a writer. I've published four books - Dead Flies and Sherry Trifle, My Father and Other Liars, Salisbury Square and Buster & Moo. In addition I have published three anthologies of short stories and a memoir of my mother. More will appear soon. I will try and continue to blog regularly at geofflepard.com about whatever takes my fancy. I hope it does yours too. These are my thoughts and no one else is to blame. If you want to nab anything I post, please acknowledge where it came from.
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61 Responses to Complacency: Fairness v Justice #thoughtpiece

  1. Ritu says:

    Powerful piece!

    Liked by 1 person

  2. Sound sense, well argued, Geoff

    Liked by 1 person

  3. Mary Smith says:

    Excellent post, Geoff. I find Shemima Begum’s case very disturbing. I believe it is illegal to strip someone of their citizenship making them stateless. If I went off to Syria and married an IS fighter or worked as a nurse helping the injured and decided to come home what would happen to me? I also feel very uncomfortable about the way interviews with her are being done (or edited) to try to show she has no remorse for her actions. She’s very vulnerable, still living surrounded by IS people, so must surely feel she has to be careful of what she says. I just heard on the news twelve other British women have arrived in the camp so now what will Mr Javid do about them?

    Liked by 3 people

    • TanGental says:

      Looks like he’s backing down. No surprise there. To a large extent, like it or not, we must trust our government officials to do the right thing, even though we can all have a different view on ‘right’. But where it is apparent what he or she propose smells rotten, we do need to make a noise. This felt like one of them.

      Liked by 1 person

  4. Almost Iowa says:

    You get justice in the next world, here you get the law.

    Like

  5. Very interesting, Geoff. There is another case of a young woman, an American from Alabama, who joined ISIS in Syria and is back now, claiming to have been brainwashed. Tough decisions to be made there too. All a balance–finding compassion in justice and reconciliation.

    Liked by 2 people

    • TanGental says:

      Quite. I would like to think, when someone leaves at 15 As was the case here and spends four years with something like ISIS we would be rather more wary before condemning out of hand. The chances of brainwashing can’t just be ignored so cavalierly.

      Liked by 2 people

  6. Yvonne says:

    Interesting! I had vaguely heard of the Caster Semenya case, though I didn’t know her name or really what it’s about. On the other hand, it would be pretty much impossible not to have heard of the Shemima Begum case. It seems a complex case but you’ve done a great job of making it very clear that she should return here – whatever then happens.

    Liked by 1 person

    • TanGental says:

      Thanks Yvonne. Yes, I just sense the call of the soapbox has seduced Mr Javid to his proclamations. Maybe the government wants to distract us just now…? Hope you are well?

      Like

  7. willowdot21 says:

    A very difficult subject here ..I don’t claim to have any answers, in fact the more I think about it the more it confuses me. Before anything can happen she needs to get to a
    UK consulate or embassy. Sadly I don’t trust her as far as I could throw her…sorry I have to be honest. I just wish they would stop giving her so much air time. Next it will be the book and the movie.
    Such a tricky subject they say the law is an arse or is it ass… But that was makes us who we are, justice. I will say about you make your bed you have to lie in it.

    Liked by 1 person

    • TanGental says:

      The thing is though that through the prism of media who want a story that fits a certain narrative how far is this brainwashing and how far a zealot motivated by undiluted hatred of British values. If I’ve learnt one thing over 62 years mid becareful about rushing to judgement. It may well be – it certainly sounds like – she doesn’t deserve any sympathy – but I’ll wait and see for now.

      Like

  8. trifflepudling says:

    Two very different cases. You can understand the disquiet of those competing against Semenya – they see her as undermining their life goals. You have to admit that she is masculine to look at and that alone gives them ammo. The other one I’m in two minds about. I’ve decided not to judge but to take the long view, ie they should come back to their home country as it’s more dangerous to leave them festering out there, stateless and victims for a cause which is already worrying enough. Ken Clark (yes him!) gave a good measured view on Today just before 8am yesterday.

    Liked by 1 person

    • Re Semenya, because of the disquiet the governing body had to be seen to be doing something. I feel sorry for her. There was a picture about a year ago when she looked completely heartbroken. So hard.

      Like

      • TanGental says:

        I too feel she cannot win. Its awful that she is a cause not an individual. The same with Begum used as a totem of a traitor. The issue subsumes the individual and we fall back on strict rules not nuanced humanity.

        Like

    • TanGental says:

      I guess i see parallels at a theoretical level. As for the Begun case its one that has a way to unravel. Ah Ken Clarke the PM we should have had.. I’d even vote Tory for him.

      Like

      • I was trying to address the theoretical level but it’s important too to put oneself in the position of the other competitors to see what it’s all about.
        I do wonder why they are focusing on the other girl so much, and she’s wondering too. I guess it’s because it was high profile 4 years ago. It’s important we aren’t played for a fool, though.
        Thanks for the opportunity to consider these matters!

        Liked by 1 person

  9. What an excellent article Geoff. It woke me up rather forcibly over first coffee! You range widely and yet remain clear and focused on the bigger picture. I feel I should bookmark this article for future reference! Strangely the bit that most likely will stay with me and become quotable is ‘….. to condone torture on the spurious grounds that the US does not carry out torture so by definition what it does cannot be torture’ which is the best put example of political doublespeak and indoctrination of the masses I’ve come across in a while.

    Liked by 2 people

  10. Excellent point of view, Geoff. I think when the emotion goes away the rule of law will prevail.

    Liked by 1 person

  11. What an intelligent, thought-provoking post. I’ve read it all, and I tend to absolutely agree with you; we have laws to keep our civilization intact. Doesn’t mean that justice will always be fair. But in many ways I would think that common sense would help a court interpret the law so that fairness wins. And I know that many times that is not the case. 😞

    Liked by 1 person

  12. Jackie says:

    Geoff, the outcome (so far) of Omar Khadr’s case here in Canada might be an interesting one for you in the UK to think about, since we’ve had years to watch it play out. After many twists and turns in the story our government decided to treat him as a Canadian citizen, something that turned out to be very expensive (to the tune of 10 m in compensation). It’s still very contentious here. My stance on it, is that the Canadian government should have carried out it’s responsibility to it’s citizen in the first place. Which, like you’re saying meant to taking him and letting our law take its course. In the end we all want the same thing. To live in a safe world. I don’t think creating pockets of stateless people is going to achieve that.

    Liked by 1 person

  13. arlingwoman says:

    I agree with you on both of these. Justice is different from fairness. As mentioned above, we have on of these cases here in the US. The youth of these women has to be considered (How stupid were we as teenagers?). Ours is saying she’s happy to go through the courts and serve time for terrorism, which means if we don’t let her back, it’s a denial of due process. Ugh…

    Liked by 2 people

  14. JT Twissel says:

    If they are allowed back in the US or UK there will be people who will vilify them and people who make them into martyrs. Neither option is good for public safety. And that’s what I think.

    Liked by 1 person

    • TanGental says:

      No doubt they are going to be vilified by the majority and used as pawns by others but I don’t make the leap that a public safety issue that follows is a reason for them to be denied citizenship.

      Like

      • JT Twissel says:

        I would disagree as the government’s first responsibility is public safety. I would hate to see these two women continue to be interviewed, go on speaking tours or write books which is my bet they will do. Profit from an association with a known enemy.

        Liked by 1 person

      • TanGental says:

        I don’t disagree that that is offensive but it isn’t illegal. My point is she is a British citizen and is therefore entitled to return to face due process. If she is found guilty of a crime, punish her. If not and she is considered a threat, monitor her. But don’t deny her these rights because her involvement in this disgusting and disgraceful operation. And certainly don’t do it because some politician says so. We have courts, we have laws and most importantly we have the rule of law. Don’t deny it because you fear it might not get you the result you’d like.

        Like

  15. Rowena says:

    Hi Geoff,
    I’m going to keep my reply simple and call them case 1 and case 2. In case 1, I think she should be able to run with her natural testosterone level because that’s a natural advantage perhaps a bit more controversial than any other but still natural.
    Case two. I haven’t been following it closely, but I do feel that people need to take responsibility for their actions and that if you for example run off and join a terrorist group of have a relationship with a terrorist, you might be going down a path of no return. People need to consider their choices carefully.
    Happy 1000 Voices Anniversary. If I wasn’t caught up with organizing a slumber party for Miss and pulling a rabbit out of a hat in terms of a tidy, organized house, I’d write a post.
    I’ve also been researching and starting to write up about a collision between two ships in Port Phillip Bay, Melbourne in 1924. My Great Grandfather (Father of the concert pianist) was Second Mate onboard the Dilkera when the Wyrallah steered across its bow and was essentially torn in two. Six men drowned and while the Dilkera did save some survivors, it made no effort to save the last of them and went to save itself. Junior Legal counsel for the Wyrallah was Robert Menzies who is Australia’s longest serving Prime Minister. I have got stuck into the inquiry yet but it’s really turning to be quite a story with great potential. Here’s the link: https://beyondtheflow.wordpress.com/2019/02/20/when-two-ships-collide-stumbling-across-the-wyrallah-disaster-1924/
    Hope you have a great weekend.
    Best wishes,
    Ro

    Liked by 1 person

    • TanGental says:

      Both valid views. I’d only maybe ask you to consider the age of the woman – 15 – when she left – and the possibility of being brainwashed or similar. Maybe she’s a hardened zealot who is fully aware of her actions but before leaping to judgement I’d want to know more. The main point though was that while as individuals were can and should be able to hold a range of opinions the politicians should be carful before they utilise a human story for political ends.

      Liked by 1 person

      • Rowena says:

        Ouch 15. I’m not sure whether all should be forgiven but that’s very young and teenagers aren’t rational beings most of the time. There is also the story of the prodigal son, which is all very well when it’s you or your own kid who has made a big turn around and wants a second chance. People are quite edgy about being so forgiving when it comes to someone they don’t know. I definitely don’t like politicians capitalizing on a personal situation but there is at least a perceived security concern about some of these 1st generation people. I don’t know. I saw an ad for a news segment here which talking about immigration and immigrants basically swarming certain areas and and are they coming your way? Such fear mongering! Our Fedral Liberal politicians can’t talk about anything except stopping the boats. I’m more concerned about education, health and making sure families can afford to feed and clothe their kids and pay for excursions. Some people are doing it very tough and are in survival mode.
        I have noticed that I’ve retreated into the past and I am wondering about that. I'[m playing Bach on my Violin largely because I’m following my way through the Suzuki series and move from one piece to the next. I do all this historic research and have read more from the newspapers of 1924 this year that 2019. Our State election is coming up and Federal might not be too faraway. It seems the pollies are rabbitting on more than usual on TV and it sends me back to my research pretty quickly.
        Best wishes,
        Ro

        Like

      • TanGental says:

        I try and take a step back and depersonalise things but I really find it hard st times to be objective. Still like life we’re all works in progress…

        Like

  16. Mick Canning says:

    Like most people here in the UK, I guess, I’ve discussed the Shemima Begum case quite a bit over the last week. And I have to say my thoughts are absolutely identical to yours. One of my maxims, I like to remind myself when things get heated, is ‘we’re better than that’.

    Liked by 1 person

  17. Well said, Geoff. In the end, it is very true that justice & fairness do not always coexist peacefully – most times they do, but at others it’s a difficult balancing act.

    Liked by 1 person

  18. I completely agree about Begum. She cannot be made stateless, and I think Javid just has his eye on the top job so wants to appear the hard man. I don’t like what I hear Begum is reported as saying, but given the state of some of our media “reported as saying” is not necessarily the same as “saying”. Let her come back and be tried, or monitored, and rehabilitated if possible. And her child has done nothing wrong and is definitely a British citizen.

    Liked by 1 person

  19. A very long discussion topic has been uncovered. This one will require several tall glasses each. Can we at least agree to pursue it as friends?.

    Liked by 1 person

    • TanGental says:

      Yes of course. I understand how many opinions there are on such a topic, sincerely held. And it’s only by listening to all shades do you understand better. I may be wrong in many eyes, or have missed something important.

      Like

  20. Thanks for writing about Shemima Begum, Geoff. I was going to, as her case links today’s two book reviews, but I think I’ll link to this post instead.
    I so agree this is the slippery slope (and also arrogant in assuming Bangladesh can take the UK’s cast-offs) but many won’t care because they have no sympathy for her case. But the great thing about the law is that it’s distinct from emotion and I’m very concerned when politicians break it.
    Surely it’s not too complicated to condemn her actions but recognise her rights (and our duty to clean up our own mess). You see I’m rambling, which is why it’s as well I didn’t try to blog about it!

    Liked by 1 person

    • TanGental says:

      You’re spot on. Only when emotion also spills into court does justice become strained. I recall reading Lord Denning – a hero of mine as a law student for pushing the boundaries of the law – who led the first appeal for the Birmingham six and frankly it was an appalling piece of press fuelled propaganda… some little something of my legal zealotry died that day…

      Liked by 1 person

  21. Norah says:

    I’ve popped over here from Anne’s piece, Geoff, and I’m pleased she included the link because your notification is still buried in my over-full inbox. You raise some interesting points about which I have no valid opinion to offer. However, I agree with your concluding paragraph, especially that we need to battle complacency and use understanding and compromise to survive.

    Liked by 1 person

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