Procedural justice


Procedural justice

Procedural justice refers to the idea of fairness in the processes that resolve disputes and allocate resources. One aspect of procedural justice is related to discussions of the administration of justice and legal proceedings. This sense of procedural justice is connected to due process (U.S.), fundamental justice (Canada), procedural fairness (Australia) and natural justice (other Common law jurisdictions), but the idea of procedural justice can also be applied to nonlegal contexts in which some process is employed to resolve conflict or divide benefits or burdens.

Procedural justice concerns the fairness and the transparency of the processes by which decisions are made, and may be contrasted with distributive justice (fairness in the distribution of rights or resources), and retributive justice (fairness in the rectification of wrongs). Hearing all parties before a decision is made is one step which would be considered appropriate to be taken in order that a process may then be characterised as procedurally fair. Some theories of procedural justice hold that fair procedure leads to equitable outcomes, even if the requirements of distributive or corrective justice are not met.

Perfect, Imperfect, and Pure Procedural Justice

In A Theory of Justice, the philosopher John Rawls distinguished three ideas of procedural justice:
#"Perfect procedural justice" has two characteristics: (1) an independent criterion for what constitutes a fair or just outcome of the procedure, and (2) a procedure that guarantees that the fair outcome will be achieved.
#"Imperfect procedural justice" shares the first characteristic of perfect procedural justice--there is an independent criterion for a fair outcome--but no method that guarantees that the fair outcome will be achieved.
#"Pure procedural justice" describes situations in which there are no criterion for what constitutes a just outome other than the procedure itself.

Three Models of Procedural Fairness

The theory of procedural justice is controversial, with a variety of views about what makes a procedure fair. These views tend to fall into three main families, which can be called the outcomes model, the balancing model, and the participation model.

The Outcomes Model

The idea of the outcomes model of procedural justice is that the fairness of process depends on the procedure producing correct outcomes. For example, if the procedure is a criminal trial, then the correct outcome would be conviction of the guilty and exonerating the innocent. If the procedure were a legislative process, then the procedure would be fair to the extent that it produced good legislation and unfair to the extent that it produced bad legislation.

This has many limitations. Principally, if two procedures produced equivalent outcomes, then they are equally just according to this model. However, as the next two sections explain, there are other features about a procedure that make it just or unjust. For example, many would argue that a benevolent dictatorship is not (as) just as a democratic state (even if they have similar outcomes).

The Balancing Model

Some procedures are costly. The idea of the balancing model is that a fair procedure is one which reflects a fair balance between the costs of the procedure and the benefits that it produces. Thus, the balancing approach to procedural fairness might in some circumstances be prepared to tolerate or accept erroneous verdicts in order to avoid unwanted costs associated with the administration of criminal process.

The Participation Model

The idea of the participation model is that a fair procedure is one that affords those who are affected an opportunity to participate in the making of the decision. In the context of a trial, for example, the participation model would require that the defendant be afforded an opportunity to be present at the trial, to put on evidence, cross examination witnesses, and so forth.

Due Process and Natural Justice

The idea of procedural justice is especially influential in the law. In the United States, for example, a concern for procedural justice is reflected in the Due Process clauses of the United States Constitution. In other common law countries, this same idea is sometimes called natural justice.

References

#Robert Bone, "Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness", 83 Boston University Law Review 485 (2003).
#Ronald Dworkin, "Principle, Policy, Procedure" in "A Matter of Principle" (1985).
#Louis Kaplow, "The Value of Accuracy in Adjudication: An Economic Analysis", 23 Journal of Legal Studies 307 (1994).
#Bruce Hay, "Procedural Justice--Ex Ante vs. Ex Post", 44 UCLA Law Review 1803 (1997).
#John Rawls, "A Theory of Justice" (1971).
#Lawrence Solum, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=508282 Procedural Justice] (2004).


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