The Gap Between Fairness and Law

This chapter explores the gap between the abstract ideal of fairness and the bodily materiality of retribution. The aim is to suggest how embodied versions of current cognitive science afford a helpful way of talking about the breach between abstractions, or thoughts of fairness, on one hand, and the judgments and punishments produced by actual legal systems on the other. It turns out to be remarkably easy for creatures with brains like ours to leap over the gap, to close the rift produced by evolved brain physiology between abstractions and their physical manifestations. The cognitive theory engaged here is the hypothesis that the grounds of morality and social decision-making—both the feeling of fairness and the institutionalized court systems—can be understood as produced by the structures and processes of human brains in their bodies. My inquiry rests on the co-occurrence of the highly popular revenge tragedies of late sixteenth and early seventeenth century (such as Hamlet) and the conflicts and arguments over the authority of the Chancery, or Equity Courts in London. Was equity, as John Selden later called it, “a roguish thing” that simply reflected the chancellor’s own feelings, in which case the judgments of the court were “above the law,” or was it, as Saint German claimed, grounded in sinderesis, the human mind’s natural understanding of right? The performances of revenge on stage, it is hypothesized, may have helped their audiences understand the direction of change that was needed.