Procedural justice

Procedural justice concerns the fairness of the processes by which decisions are made--as contrasted with the distributive justice (fairness in the distribution of rights or resources) and corrective justice (fairness in the rectification of wrongs). Some theories of procedural justice hold that a fair procedure can render the outcomes it produces just, even if they do not satisfy the requirements of distributive or corrective justice.

Contents

1 Perfect, Imperfect, and Pure Procedural Justice 2 Three Models of Procedural Fairness 2.1 The Outcomes Model 2.2 The Balancing Model 2.3 The Participation Model 3 Due Process and Natural Justice 4 References

Perfect, Imperfect, and Pure Procedural Justice

In A Theory of Justice, the philosopher John Rawls distinguished three ideas of procedural justice:

1. 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.
2. 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.
3. Pure procedural justice describes situations in which there is no criterion for what constitutes a just outcome 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 accuracy 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.

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, a balancing approach to procedural fairness might accept erroneous verdicts in order to reduce the costs 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 conxtext 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

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