Every little counts

The common conception of fairness

(Image: public domain)

In a world where the word billion barely cuts any ice (you wait until they revert to the British definition of old: a million millions), it is sobering to think that there are things that are minuscule, tiny, easily overseen or barely noticeable, yet that count for a great deal.

Up to or as from?

A story in The Guardian newspaper brings this home graphically. Liz made a declaration to the Department for Work and Pensions (DWP) that she worked 16 hours per week (owing to a disability). Above a certain threshold, any remunerated work she does will reduce drastically her benefit entitlements. The threshold, she thought, was 16 hours per week, but it isn’t, in fact. It is as from 16 hours per week that the reductions kick in. The limit, therefore, is, somewhat crassly, 15 hours, 59 minutes and 59 seconds. That is how the DWP reads the legislation, applies it, and declares war on those it was constituted to assist.

The DWP is under a duty to safeguard the funds that are entrusted to it for performing its obligations under the social security legislation. If one accepts that there is a point between not earning at all and earning full-time like any other working individual, where the disabled can exercise a certain prerogative to work, without nonetheless qualifying as an FTE, that point requires to be defined. And, whilst the ability to work will vary from one individual to another in all events, governments simply are not equipped to determine where each person’s individual limits should lie: they need to cut no end of Gordian knots, and this one is cut with the figure 16.

Semantically, there is a difference between saying that work up to a certain limit will not disqualify an applicant for certain benefits and saying that, as from a certain limit, an applicant is so disqualified. I’ve seen no end of official tables and lists, and such like, where things get said like tax rate to 2,000 euros, tax rate from 2,000 euros, leaving one to wonder how income of 2,000 euros is taxed. Good practice would state a tax rate to 1,999.99 euros and the next rate as applying from and after 2,000. Yet, in tax rates, that’s rarely the case, for the simple reason that it makes calculations unnecessarily involved: where income is divided into tax bands, it’s easier to calculate a low tax band’s contribution to the overall tax bill by developing standard amounts of universal application, so that 25% on 2,000 euros is easily 500 euros and the next band begins with 2,000.01 euros; 25% on 1,999.99 euros is just complex for the sake of complexity. What’s more, what tax rates do is what most thresholds do: they state the point after which treatment changes. If you ask your doctor how long you need to take a tablet for your illness and he says “six days”, then it is only on the seventh day that your treatment changes. After the stated six-day deadline.

The DWP’s threshold works differently, however: it works from the DWP’s point of view, not the applicant’s, and that is fundamental to firms and organisations that only see the world from their own viewpoint. An anecdote.

At a bank where I once worked as a translator, one word I frequently needed to translate was medecontractant. It means “the other party”, or the “co-contractor”. The co-contractor, or other party, to a contract is the party who is not you. So, between a bank and its customer, the other parties are two in number: the customer’s is the bank; and the bank’s is the customer. But not at this bank: it describes all customers as being the other party. That makes no sense if you are the other party, because references to the other party will be construed as if they are references to the bank, rather than to the customer. How this came about I don’t know for sure, but here are a couple of guesses: (i) it is handy if the bank has a single, simple term to mean the other guy; the problem is that not all other guys are customers – some of them may be suppliers. It is pesky to have to go through a model contract with a fine-tooth comb in each case (although you would have thought that that is precisely what a legal department should be doing); (ii) imagine Jos is sitting at his desk just after the bank’s merger with its smaller competitor and high on the agenda is “making everything uniform”: “Hey, Jean, if we’re ‘the bank’, what do we call the other guy?” “Oh, Jos, they’re called ‘the other guy’.” “Oh, of course, Jean: could’ve guessed.” Whereby the standpoint of the customer doesn’t enter into consideration for an instant.

The DWP’s viewpoint is that it is relieved of its obligations once the applicant works 16 hours a week. In the applicant’s eyes, they can work without affecting their entitlement for up to 16 hours a week. In other words, the applicant views the threshold as comprised within the entitlement, whereas the DWP looks upon it as the point at which its obligations cease. There is nothing fundamentally wrong with either viewpoint, not in terms of mathematical logic. However, one of the views is friendlier to applicants than the other, because it expresses the entitlement in a manner in which a typical applicant would likely see it: working up to 16 hours a week. The DWP can hardly contend that a working schedule of 15 hours 59 minutes and 59 seconds is in any way typical. Yet, what is typical is not even what is intuitive.

Play ball

In the game of association football, the lines that mark out the area of play are deemed within the rules of the game to form part of the field of play. If the ball travels onto the line without crossing it, it remains in play.^[1] In rugby union and rugby league football, the ball does not travel so much as is carried (following the inspiration that gave rise to the game, provided – apocryphally – by Rugby schoolboy William Webb Ellis in 1823), but he who carries the ball may not tread upon any part of the touchline, failing which the ball is signalled to be out of play, even if only his/her foot is on the line, and not the ball itself.^[2] Although linesmen/women in both soccer and rugby occasionally need to judge the passage of a ball over the touchline at some considerable height, the judgment is the less onerous given that the landing place for the ball will determine the final call (wind can blow a ball that looks in touch in the air back onto the field of play). The rules’ differences between soccer and rugby stem therefore from the ease of determining the position of a foot on the ground as opposed to determining the position of a ball that is carried, notwithstanding the position of the carrier’s foot. The rules differ in order to ease the tasks of the linesman/touch judge.

How many hats does everybody have?

Tout le monde is French for everyone and, in days gone by, as anyone who’s studied Molière will know, everyone wore headgear (Harpagon, the main character in L’avare, enters at one point sans chapeau, which would have been an indication to the audience of his extremely upset mind). As a mark of respect, or as a greeting, or as a demonstration of jubilation, hats would be doffed (taken off), raised or thrown into the air, and, in French, the act of raising the hat is se lever le chapeau (to raise to oneself the hat). Therefore, if everyone raises their hats, it is correct French to say: Tout le monde se lève le chapeau. Translated literally, this means everyone raises to himself or herself the hat. The logic applied in the French language is that, no matter how many people raise their hat, each of them wears only one hat. Now it starts to get interesting, because, in English, the expression becomes everyone raises their hats. In English, the logic that is applied is that, although each person wears only one hat, the sum total of hats that are raised is in the plural: as many hats as there are people. Isolated, it’s hard to see this at work, so a flowing text example:

Lorsque de Gaulle entra dans la salle, il y eut un grand cri de joie et tous levèrent leur chapeau.

As de Gaulle entered the hall, there was a great cry of joy and all raised their hats.

Unlike with the rules of rugby and football regarding the line’s qualification as being in or out of play, there is here no great argument either way for whether French or English takes the more or less logical approach. The French approach sounds, to the English ear, as if all in the room raised one large, gigantic hat. To the French ear, the English sounds as if everyone was wearing, not one, but several hats: they raised them all.

On the borderline

Time for an old, if illustrative, joke: after the Second World War, a couple of sappers get tasked with drawing on the terrain the actual new border between Poland and the Soviet Union. They progress well until, working their way through a forest, they discover a house that is slap-bang on the proposed new border. They cannot draw the line through the middle of the house, so one of them suggests to the other, “Let’s knock on the door and let the owner make a choice, between being in Poland or in the Soviet Union!” The other agrees and the two of them knock at the door.

A gentleman opens to their knock and they ask their question: would he sooner be placed in Poland or in the Soviet Union? The gentleman mulls the matter over for a few seconds, before answering, “Poland. I never liked the Russian winters.”

Tuition in intuition

Taking French and English rules of grammar, the touch rules for rugby and soccer, the choice of which side of a border to be on, and the rules on which side of a divide a threshold falls, one can but conclude that the most tempting solution is going to be that which is most intuitive. But to whom?

a) The touch line rules are intuitive for both the line judge and the players. That’s good: not only can the judge decide fairly, but the player is able to make their own judgment as to whether they believe the ball to be in play or not, whichever sport they’re playing.

b) The raising-of-hats grammar rule is intuitively in favour of French, for French-speakers, and intuitive for English, for English-speakers. Its logic depends on cultural factors. But, for those well-versed in both languages, it is rather to be suspected that, instead of always getting it right in both, they frequently get it wrong in either.

c) The Polish-Soviet Union border seems logical in its analysis: it poses a difficulty that the sappers are unable to resolve owing to a restriction on their remit; it gallantly offers the resolution to the proprietor of the house himself, who exercises a free choice, based on a factor that makes no sense whatsoever, thus making out of the story a joke.

d) The Department for Work and Pensions avails itself of a distinction that few outside its portals would consider fair (for instance, what if the statutory threshold were set at 16 hours and one minute: would the legislative draftsman countenance such an odd rule?). What others consider to be fair, is of course a matter for them, but the mark of reasonableness must demand that one operate under a system whose fairness stands up not only to logical analysis but also to common conceptions of what’s fair. After all, common conceptions are not entirely divorced from how the world, on the whole, functions.

What is fair in common parlance?

In a recent article (which you can read here), I examined a remark made by Judge Lewis Kaplan in an order of his court refusing the appellant Donald J. Trump leave to appeal the Carroll II matter, in which he said, “The finding that Ms Carroll failed to prove that she was raped within the meaning of the New York Penal Law does not mean that she failed to prove that Mr Trump raped her as many people commonly understand the word rape.” My article takes issue with Kaplan, on the basis that it is precisely the distinction between sexual abuse and rape as defined in New York law that induced the jury in Carroll II to reject a finding of rape against Mr Trump but to order damages of 2.02 million dollars on the finding of sexual abuse.

Howbeit, Kaplan’s order clarifies that what people elsewhere know as rape is called sexual abuse under the laws of the State of New York, the threshold question in that case being what is inserted into what else to constitute the offence. Had New York law known only its offence of rape, and no offence of sexual abuse, then Carroll would still have had a cogent case against Trump, because, call it by whatever name you wish, Trump had no business inserting anything anywhere on the plaintiff’s body. Kaplan is to that extent right: the 2.02 million dollars were awarded against Trump for what he did, whose criminal law classification was beside the point, since Carroll II was a civil, not a criminal, cause. As a result, the legalistic distinction (between (i) the criminal offence the jury found Trump to have fitted the criteria for committing and (ii) that whose criteria the jury found Trump’s actions did not satisfy) is relevant not to the figure of damages that the court awarded (not as far as I’m aware) but far more to whether newspapers could brazenly assert on the day following the judgment that Mr Trump is a “rapist” or that he is a “sexual abuser”.

Of course, the ostensible remedy sought by E. Jean Carroll in her two lawsuits against Donald J. Trump was damages, and these she has got in one of the cases (the other is still pending). She would not appear to have had any direct patrimonial interest in how the newspapers described Trump in the aftermath. But, and this is just guesswork on my part, it was far more the treatment of Mr Trump by the news media that intrigued the general public in that case than the sum awarded for his wrongs, though a sense of justice for putting right any wrong committed against Ms Carroll was no doubt present in many readers’ minds.

This may seem specious to some, but I believe it’s important: the threshold for the Carroll v. Trump cases differs radically according to viewpoint:

- Having stated up front that justice should take its course and the right of the accused to a presumption of innocence is vital to a functioning justice system (for I believe that the measure of a civilised justice system is the measure with which it approaches the matter of guilt and the presumption thereof, prior to conviction of the guilty), the threshold for me was placed firmly on the balance of probabilities: did Mr Trump do what Ms Carroll said he had done?

- For Ms Carroll, as for any party to litigation, the threshold lay in convincing the jury, by way of her parole and other evidence, of the truth behind her accusations: for her, in her own mind, the threshold lay not in the balance of probabilities but in proof beyond any doubt.

- For the jury, the threshold lay in testing Trump’s actions as found to be committed against a criminal statute. Like it or not, this civil case wanted desperately to make a finding of criminal guilt, one that was not, qualitate qua, within its remit. Nonetheless, the jury made its finding and award of damages, declining, in so doing, to associate Mr Trump’s actions with the criminal offence of rape under New York law.

- And, thence, to threshold number four, Judge Kaplan’s, and his remark: when the jury say he isn’t a rapist, you can be sure he is a rapist by anyone else’s standards. And one of those standards, Your Honor, is proof beyond reasonable doubt for a criminal charge, and, if you didn’t notice, no criminal charge of rape was brought against Donald Trump.

If you’re of a mind to call this pedantry, sophistication, sophistry or hair-splitting, be sure it is none such. Many commentators on current affairs adhere to a view that we are living in the age of the barefaced lie (see Simon Tisdall’s article, here). The spirit that once lived vibrantly in the wake of apartheid, in the truth and reconciliation that was viewed as an essential cathartic process for South Africa, and, in a similar style, which is being embraced in Chile as it strives to lay to rest the ghosts of Pinochet’s coup d’état before those with lived recollection are themselves laid to rest, and the spirit of right for right’s sake as demonstrated recently in Ecuador’s banishment of further oil & gas exploration there (whose truth must be hoped for, regardless of how good it seems to be), all these tokens of openness and honesty have been walked back to the point where the distinctive clarity of a defined threshold no longer always convinces.

The law, like the cartographer, works with lines. On maps, they’re drawn with confidence, albeit some with hesitation, or with labels like disputed territory. When a line on a map is traversed, you can be sure of one thing: either a visa has been presented; or a war has been started. But lines in laws can be far more malleable than cartographic lines. For a start, a good number of them are open to interpretation. And some are even intended to be so, whether for good reason, such as the possibility of adaptation to future technological advancements, or for bad, to confuse and mislead, to aspire to ulterior agendas, to engage in trickery. I’m as good as convinced that loopholes contained in anti-money-laundering legislation are there by design. Not identified with flashing neon signs, to be sure, but salient enough to get noticed by those who look for such things. Sometimes the statute book is even filled out with laws whose writ ran for centuries and more without hinder, but which it was felt were needful of some sort of codification. And what codification does is render a law clear and unambiguous. Isn’t that so? Are not all written laws clear and unambiguous? Much more so than their common law predecessors?

What else codification can do is cause a hullabaloo, one might opine, a sideshow, by which a crowd’s attention (or the general public’s) is drawn to a generically identified group of misdoers whose misdoings are highlighted as being combatted by a new law – one that’s in fact already in existence – thus drawing attention away from organised criminal elements, whose misdoings then get passed over, if for no other reason than that there is no monopolies commission or antitrust authority for the organised crime sector. Well, there is, but it works with more drastic means than just fines. In circuses, there is a clear distinction between what is the big top and what constitutes a sideshow. Elsewhere, it’s not always clear that the sideshow even is a sideshow and that there even exists a big top.

Every little counts is obviously a recommendation to save by increments, to be thrifty and not to scorn the little things in life, even if we ourselves are such. Trouble is, little is large to some involved in a matter, and that is what counts. Whether your foot was on or behind the line; whether you worked 16 hours, over 16 hours or under 16 hours. How many hats were on your head and how harsh the Polish winter is. In a criminal case in which I was involved, a charge of culpable omission was levelled at three co-accused. They were all accused in connection with exactly the same set of facts, regarding the death of exactly the same individual. Each of them pleaded not guilty to the charge. The first was acquitted; the second and third were found guilty and bound over for six months, with a fine and civil liability. Of them, one appealed, and his sentence was doubled on appeal, whereupon he committed suicide. For each of these accused, every little counted. For one, it counted for his freedom from a criminal record; for another it counted for his life; whether, for the third, it counted for justice, I doubt it.

Markus Lanieux is an inmate at a Louisiana prison, and has been for 13 years. The offence for which he was committed to prison carries a nominal tariff of two years but Mr Lanieux had been in bits of trouble before and Louisiana applies a “three strikes and out” rule, by which a far higher tariff can be exacted and, in a development just on 8 September 2023, the Louisiana Supreme Court declared unconstitutional a statute that allows public prosecutors to review sentencing retrospectively in light of societal development and, in particular, the cost of incarceration to the people thereby protected. His story is told in detail by ProPublica here.

Markus is no angel but he’s not, in the view of Verite News reporter Richard A. Webster, a devil either. He’s been caught on the wrong side of a dividing line that has turned his two-year sentence into one for life. The gubernatorial hopeful and present district attorney, Jeff Landry, is concerned by the levels of crime, and violent crime in particular, in the state of Louisiana, and so he should be. It is, by any measure, a violent place. There are white people in prison in Louisiana, make no mistake: a whopping 21% of the prison population is white. Whites make up around 91% of the Louisianan population. Mr Landry’s opposition to the sentencing review legislation is based on his adamant conviction that the legislation would be soft on hardened criminals who make Louisiana a dangerous place to live, so he’s very much on the side of law and order. I don’t know if he’s very good at countering the violent crime that plagues his state, however. Perhaps Louisiana would be a much more violent place – perhaps even with more, violent whites as well as the highly violent black population – if his opposition to the sentencing law had failed. He looks set to win the governorship of the state later this year and, no doubt, all Louisianans, black and white, look forward to a drastic reduction in crime figures during his potential period of future tenure, especially a reduction in the crime committed by Louisiana’s police forces. As ProPublica puts it in its feature Unwatched – A Louisiana Law Department That Polices Itself: “The sheriff of Louisiana’s Jefferson Parish answers only to voters. In this conservative suburb, that translates to nearly unchecked power.”

What the deuce induces?

What was it, I sometimes muse to myself, that induced Henry Ford? Or Franklin Mars? Or John D. Rockefeller?

To do what? Well, that’s very much the question: what induced these people, and others, to do what? History, which Ford, you may recall, declared to be bunk, records that he was the first to set up a production line for the manufacture of motor cars, which brought the iconic Model T within the reach of average middle-class Americans. What induced him to do that was trying again. He’d already failed at a number of business ventures and his establishment of the Ford Motor Company in 1903 was far from being his first such venture. What induced him to tempt middle-class Americans with instalment loans to purchase the dream of mobile freedom, I cannot say: perhaps profit. I wonder if his desire for profit was greater or less than his dislike for Jews, but he didn’t question the religious beliefs of those he sold his cars to. Working out every last thing that induced Henry Ford to do every last thing that Henry Ford did is not easy. But, somewhere in the mix, every little will have counted; or was Henry Ford destined to become the great industrialist he became, by some configuration of the stars?

Franklin Mars founded two companies: one in Tacoma, Washington, which folded because it could not compete with an established local firm, which now no one has ever heard of; and one in Minneapolis, which ultimately became Mars, Inc., makers of chocolate bars. What induced Franklin was seeing his mother dip chocolate candy by hand whilst he was suffering a bout of polio. That’s a story to warm the heart, for mother’s love, transduced into mother’s care, becomes son’s industrial conglomerate. The eponymous Mars bar, along with its stable fellows M&M, Milky Way and the likes, has tended, on the whole, over the years of the 20th and 21st centuries, to reduce in size; its price has, by contrast, not. The size reductions have never been that noticeable, although Nestlé, which took over the company that makes the Toblerone chocolate bar at one time decided to drastically reduce the number of break-off “mountains” in the bar, and beat a hasty retreat when customers raised an outcry. The moral of this story is that every little counts only as far as you’re the supplier; because customers, it would appear, live by a mantra that only every big counts, so that reducing what’s supplied by contrast with what’s promised can almost be done with impunity. Almost.

The number of court actions against chain suppliers of foodstuffs who fail to supply to the customer what they depict in their advertising is on the up. From something like 50 annually a few years ago, to around 200. One of the most recent cases involves Burger King, whose Whopper is alleged not to be so whopping in the flesh as it is on the billboard. Now, 200 actions a year, even if they were all directed at Burger King, would hardly make so much as a dent in its turnover. Interesting would be to consider whether Burger King regards repelling such claims as vital to its market standing or whether it would regard settling out of court as the better side of valour. It all depends on which they believe might give rise to a landslide of claims, because, even if every one of 200 claims is but little, the question is then how many claims become much for the restaurant chain.

British store Marks & Spencer has been embroiled in a discussion of its portion sizes. Its what? Yes, its portion sizes. It sells a pasta salad containing 100 grammes (that’s 3½ ounces in old money) and declares it to be adequate for two persons. Now, I don’t know if you’ve ever weighed out 1¾ ounces of pasta salad, but an average portion of pasta for spaghetti bolognaise is 200 grammes. (If you’re bilingual, as I am, you’ll have no difficulty following.) Spaghetti bolognaise has a good dollop of bolognaise on top of the spaghetti, so the 200 grammes is just what you start with. What you end with is a satisfied smile, some left-over pecorino and an empty bottle of chianti. What you end with after 50 grammes of Marks & Spencer pasta salad is an overwhelming sense of dedication to the cause of dieting. What the person you share your pasta salad with ends with is probably not printable.

Now, all this is very well, but I like to peek behind the scenes, and that means the board room. Because, somewhere down the line, in the years that ensued after Franklin set up Mar-O-Bar-Co (later, Mars – 1920), Burger King starting its flaming burger business (1959, from the ashes of Insta-Burger King), and Marks & Spencer founded their penny bazaar (seriously, the pasta salad hails from a stall in Leeds’s Kirkgate Market), someone went into their board rooms and persuaded the members that every little counts. That a few grammes of chocolate off a candy bar will bring more profit, and that a beefburger doesn’t need to live up to its pictorial representation, and that conning the purchasing public into believing that 50 grammes is lunch is all okay and that it in no way runs against the grain of the hopes and aspirations of those who founded these companies to, instead of competing with quality and openness, to compete instead with cute tactics that some might equate to shenanigans and cheating. Colman’s of Norwich is a mustard company whose founder, Jeremiah Colman, is said to have said, his fortune came not from the mustard that people ate, but from the mustard they left on the side of their plates. Yes, so it may be that everyone of these littles counts; but the mustard left on the side of the plate is left there by the plate’s owner – it is not removed from the jar by its manufacturer.

“You cannot be serious!” are words for ever associated with tennis player John McEnroe. He uttered them at the Wimbledon Tennis championships in 1981, in response to a line call that was maybe right, maybe wrong, but whatever it was, was so by millimetres. Every little counted and, as I argued in the linked article, we are here full circle at the fundaments of our existence and its allied precariousness: the rule of law.

If we want to argue that littles don’t count in any of the arenas I have mentioned in this essay, then we plead in effect for an aleatory existence whose uncertainty is imbued with deep-grained unreliability. Perhaps that’s what we want. But we shouldn’t feign surprise when it goes against our own grain.

John D. Rockefeller? There was nothing little about him that counted. He was just a standard oil man.

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^[1] The ball is out of play when:

- it has wholly passed over the goal line or touchline on the ground or in the air.

IFAB Laws of the Game 2023-24, Law 9, paragraph 1.

^[2] The ball is in touch when:

(a) it touches the ground on or over the touch line (the touch line itself being out of play);

(b) a player carrying it steps on or touches the touch line or the ground outside the touch line.

The ball is not in touch when a player standing in touch kicks a ball which has not crossed the touch line.

(Know the Game Rugby Union Football, p. 14 [East Ardsley:1974 – E.P. Publishing/Rugby Football Union].)