Part of a symposium on John Rawls: Reticent Socialist by William Edmundson . In Edmundson’s account, pure procedural justice functions as a kind of limit to Rawls’s socialism, the point at which a socialist can find common ground with a critic of government and a defender of free markets like Hayek. Though I agree with much of what Edmundson says, I want to urge a reading of pure procedural justice that would bring Rawls more (...) in line with Marx and further from Hayek. (shrink)

In this paper I focus on the discussion between Rawls and Habermas on procedural justice. I use Rawls’s distinction between pure, perfect, and imperfect procedural justice to distinguish three possible readings of discourse ethics. Then I argue, against Habermas’s own recent claims, that only an interpretation of discourse ethics as imperfect procedural justice can make compatible its professed cognitivism with its proceduralism. Thus discourse ethics cannot be understood as a purely procedural account (...) of the notion of justice. Finally I draw the different consequences that follow from this reading. (shrink)

This paper aims to outline the essential structural traits that a procedural theory of justice for the management of conflicts about values should display in order to combine open-endedness and cogency. To this purpose, it offers an investigation into the characteristics of procedural justice through a critical assessment of John Rawls‟s taxonomy of proceduralism, in terms of perfect, imperfect and pure procedural justice. Given the concessions the two former kinds of proceduralism make to (...) substantive theories, and the potentially misleading characterisation Rawls gave of pure procedural theories of justice, it reformulates the latter category in terms of impure proceduralism. In this case, the theory is required not to pose substantive constraints on the qualities of just outcomes, but is, rather, expected to provide a trans-contextually applicable account of the qualities of just procedures on the basis of an independent criterion of justice. (shrink)

Health-care goods are goods with peculiar properties, and where they are scarce, societies face potentially explosive distributional conflicts. Animated public and academic debates on the necessity and possible justice of limit-setting in health care have taken place in the last decades and have recently taken a turn toward procedural rather than substantial criteria for justice. This article argues that the most influential account of procedural justice in health-care rationing, presented by Daniels and Sabin, is indeterminate (...) where concrete properties of rationing institutions are concerned. Such properties inscribe substantial norms into institutions. These norms can derive validity only from democratic majority decisions, which must be seen as an instance of pure procedural justice. We therefore have to move the discussion to a meta-level and ask how concrete properties of institutions are being chosen. I suggest four criteria for sufficiently democratic institutional design choice and conclude that as institutional properties are likely to have effects on the resulting distribution of health care, design choices should be empirically informed and taken both democratically and deliberately. (shrink)

There is widespread agreement among both supporters and opponents that affirmative action either must not violate any principle of equal opportunity or procedural justice, or if it does, it may do so only given current extenuating circumstances. Many believe that affirmative action is morally problematic, only justified to the extent that it brings us closer to the time when we will no longer need it. In other words, those that support affirmative action believe it is acceptable in nonideal (...) theory, but not ideal theory. This paper argues that affirmative action is entirely compatible with equal opportunity and procedural justice and would be even in an ideal world. I defend a new analysis of Rawlsian procedural justice according to which it is permissible to interfere in the outcomes of procedures, and thus I show that affirmative action is not morally problematic in the way that many have supposed. (shrink)

A challenge for the theorising of climate justice is that even when the agents whose actions are supposed to be regulated are cooperative and act in good faith, they may still disagree about how the burdens and benefits of dealing with climate change should be distributed. This article is a contribution to the formulation of a useful role for normative theorising in light of this bounded nature of climate justice. We outline a theory of pure procedural (...) climate justice; its content, function in relation to international climate diplomacy, and justification. The theory is ‘pure’ in the sense that it does not rely on an independent criterion of what are just outcomes in negotiations of climate responsibilities. Rather, it specifies procedural fairness norms, such as transparency, reciprocity and participation, which make the process of negotiation fair independently of which account of substantive climate justice happens to be correct. Such procedural fairness norms are justified in part by being expressions of an ideal of a reasonable negotiator, an ideal which itself commands respect. They are also justified as means to an effective coordinated response to dangerous climate change in virtue of their capacity to create trust, predictability and accountability. (shrink)

The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as (...) self-justifying but regard the process of agreement as reliable evidence that contracts are welfare-improving. This article demonstrates the limitations of pure and perfect views. It favours instead imperfect theories of contract, which would have judges self-consciously pursue the normative ends of contract law as they apply context-sensitive rules. (shrink)

Norman Daniels’ theory of justice and health faces a serious practical problem: his theory can ground the special moral importance of health and allows distinguishing just from unjust health inequalities, but it provides little practical guidance for allocating resources when they are especially scarce. Daniels’ solution to this problem is a fair process that he specifies as "accountability for reasonableness". Daniels claims that accountability for reasonableness makes limit-setting decisions in healthcare not only legitimate, but also fair. This paper assesses (...) the latter claim. Does accountability for reasonableness result in fair limit-setting decisions? It is argued that the answer to this question is not a clear yes. Daniels is remarkably unclear about the criterion of fairness that accountability for reasonableness satisfies. The paper discusses different options for resolving this lack of clarity and examines how they apply to Daniels’ accountability for reasonableness framework. It is concluded, first, that accountability for reasonableness is not a paradigm case of any of the classic notions of procedural justice; second, that what might be called "constrained pure procedural justice" best reflects how accountability for reasonableness results in fair limit-setting decisions; and third, that the procedural conditions of accountability for reasonableness must be further specified and amended to better achieve a fair process, and hence fair limit-setting decisions. (shrink)

The National Institute for Health and Care Excellence (NICE) is the UK’s primary healthcare priority-setting body, responsible for advising the National Health Service in England on which technologies to fund and which to reject. Until recently, the normative approach underlying this advice was described in a 2008 document entitled ‘Social value judgements: Principles for the development of NICE guidance’ (SVJ). In January 2020, however, NICE replaced SVJ with a new articulation of its guiding principles. Given the significant evolution of NICE’s (...) methods between 2008 and 2020, this study examines whether this new document (‘Principles’) offers a transparent account of NICE’s current normative approach. It finds that it does not, deriving much of its content directly from SVJ and failing to fully acknowledge or explain how and why NICE’s approach has since changed. In particular, Principles is found to offer a largely procedural account of NICE decision-making, despite evidence of the increasing reliance of NICE’s methods on substantive decision-rules and ‘modifiers’ that cannot be justified in purely procedural terms. Thus, while Principles tells NICE’s stakeholders much about how the organisation goes about the process of decision-making, it tells them little about the substantive grounds on which its decisions are now based. It is therefore argued that Principles does not offer a transparent account of NICE’s normative approach (either alone, or alongside other documents) and that, given NICE’s reliance on transparency as a requirement of procedural justice, NICE does not in this respect satisfy its own specification of a just decision-maker. (shrink)

I raise two critical points about Emanuela Ceva’s theory of interactive justice. First, I argue the value of individual dignity is insufficient in itself to establish principles of interactive justice, but that the lacuna can be filled by an account of democratic authority. Second, I argue that realising interactive justice in political conflict management is better understood as a form of quasi-pure proceduralism rather than intrinsic proceduralism. This is because the moral quality of a decision procedure (...) can be an essential part of the explanation for why political decisions can possess moral authority. (shrink)

The character of contemporary criminal law is changing. This article examines one aspect of that change: a type of criminal offence which, it is argued, effectively ousts the criminal courts. These ‘ouster offences’ are first distinguished from more conventional offences by virtue of their distinctive structure. The article then argues that to create an ouster offence is to oust the criminal courts by depriving them of the ability to adjudicate on whatever wrongdoing the offence-creator takes to justify prosecuting potential defendants. (...) The article further argues that creating such an ouster is objectionable on a number of grounds. It deprives the courts of the ability to adjudicate independently, and undermines their ability to deliver procedural justice in both pure and imperfect form. While the ouster in question is by no means express, the article argues that it is nonetheless of the first importance. (shrink)

This paper asks whether political justice can be encapsulated by procedures. It examines John Rawls’s tripartite distinction between perfect, pure and imperfect procedural justice, concluding that none gives a satisfactory account of procedural justice. Imperfect procedural justice assumes that there could be an authoritative source of justice other than procedures, while perfect procedural justice takes a double-minded view of procedure-independent standards of justice. That leaves pure procedural (...) justice as an apparently decisionistic mode of deciding which outcomes are just. This at least avoids the confusion between having authoritative procedures and procedure-independent standards that are also purportedly authoritative. However, it is argued that even a political procedure that defines the extension of a term such a ‘justice’ will lack authority over it once its reference is fixed. Since Rawls’s categories of procedural justice are jointly exhaustive, the problem of determining justice via political procedures appears insoluble. (shrink)

Highlighting a progression of exercises, this paper develops a pedagogical model aimed at giving students tools to deliberate about justice from within the Original Position and to debate the broader goals and limitations of justice as fairness. The approach focuses on the idea of a “distribution” of primary goods without relying on caricatures or being intimidated by the more technical features of the presentation. The series of exercises shows students how to move from more intuitive to less intuitive (...) deliberative situations—a move that depends on seeing a just distribution as a product of a pure procedure. In particular, the exercises show the importance of distinguishing carefully between a distribution and an allocation of goods. Finally, it suggests ways in which we may use the theory to engage with our own distributive practices in democratic societies by focusing on the moral significance of persons as equals. (shrink)

This paper explores the space of possibilities for public justification in morally diverse communities. Moral diversity is far more consequential than is typically appreciated, and as a result, we need to think more carefully about how our standard tools function in such environments. I argue that because of this diversity, public justification can be divorced from any claim of determinateness. Instead, we should focus our attention on procedures—in particular, what Rawls called cases of pure procedural justice. I (...) use a modified form of the procedure “I cut, you choose” to demonstrate how perspectival diversity can make what looks like a simple procedure quite complex in practice. I use this to reframe disputes between classical liberal and contemporary liberal approaches to questions of public morality, arguing that classically liberal procedures, such as a reliance on the harm principle, can generate rather illiberal-looking outcomes when used in a morally diverse community. A seemingly less-principled approach, which simply balances burdens, appears to generate outcomes that look closer to what we would expect from classical liberalism. However, since both approaches are based on pure procedures that we can justify without reference to outcomes, it remains indeterminate which we ought to choose. (shrink)

In this paper I respond to Robert Taylor's argument that a Rawlsian framework does not support strong affirmative action programs. The paper makes three main arguments. The first disputes Taylor's claim that strong AA would not be needed in ideal conditions. Private racial discrimination, I suggest, might still exist in such conditions, so strong AA might be needed there. The second challenges Taylor's claims that pure procedural justice constrains Rawlsian nonideal theory. I argue that this rests on (...) a fetishizing of pure procedural justice that is absent from Rawls's work. I also show that a revised formulation of Taylor's concern here also fails. My third argument makes a positive Rawlsian case for strong AA in nonideal conditions that builds on a Taylor concession. Taylor suggests that the goal of nonideal theory is to create a world in which ideal theory can be applied. My argument begins by showing that another permissible goal of Rawlsian nonideal theory is to ameliorate injustice. I then argue that Rawls's contractualist framework supports the strongest forms of AA when category 3 interventions are blocked. (shrink)

John Rawls was the most influential political philosopher of the 20th century. His magnum opus, A Theory of Justice, revolutionised moral and political philosophy by offering a deductive way out of the intellectually unsatisfying reliance on brute intuitionism while avoiding the pitfall of irrelevance by implausibility that had plagued other contract arguments. Rawls’s elegant, novel and innovative approach provided a parsimonious solution to the problem of distributive justice by using, mutatis mutandis, the familiar device of the social contract. (...) His was an ambitious project that attempted to “provide a deductive basis for the principles that account for [our considered] judgements” (1971: p. 185). Indeed, Rawls stated categorically that his argument was meant to be “strictly deductive,” going as far as to say “we should strive for a kind of moral geometry with all the rigor which this name connotes” (p. 121). Rawls’ grand ambitions, however, did not long survive: under intellectual pressure from several directions he retreated into a somewhat relativistic intuitionism, saying he no longer wanted to discover universal moral principles, but rather principles ‘appropriate’ to modern democracies. I will not attempt engage with or summarize the vast literature of responses to A Theory of Justice that led Rawls down this path. Instead, I will diverge from the later Rawls and defend his original conclusion – i.e. his principles of justice – while modifying parts of his argument. Specifically, I will argue that it is crucial to notice that the veil of ignorance screens out two different types of particular information: information about individuals and information about society. A veil that screens out only the first type of information is a “thin” veil, while one that screens out both the first and second types is a “thick” veil. I will conclude that Rawls’ own methodological commitments – particularly, pure procedural justice – are compatible only with a thin veil of ignorance but, despite this, that broadly Rawlsian principles still emerge from the original position. (shrink)

In pluralistic societies with conflicting conceptions of the good, purely procedural justice looms as particularly attractive. Moreover, the social contract device, in at least some of its conceptual adaptations, appears capable of yielding purely procedural outcomes. Based on an assessment of the respective contractarian arguments of Hobbes and Rawls, the author asserts that contractarian proceduralism is either purely procedural but not just, or else just but only derivatively procedural. Finally, after proposing that Habermas' discourse ethics (...) and proceduralist paradigm of law can be regarded as the perfection and culmination of contractarianism, the author concludes that it also ultimately fails to produce purely procedural justice. (shrink)

This is a sustained attack on what the author termed "decido-phobia"—the fear of making fateful decisions. The book begins with an illuminating discussion of ten popular strategies of decido-phobia. Of particular interest to moral philosophy is the attack on "moral rationalism" which "claims that purely rational procedures can show what one ought to do or what would constitute a just society". "Moral irrationalism" is also criticized for ignoring the relevance of reasons "when one is confronted with fateful decision". An ethics (...) of autonomous men is proposed as an alternative to decido-phobia. This ethics involves four cardinal virtues of love, honesty, courage, and "humbition," the last a new coinage for "fusion of ambition and honesty." Both the concepts of justice and guilt are subjected to detailed criticism, since they constitute the chief obstacles on the road to autonomy. Unlike Kantian autonomy, Professor Kaufmann focuses on that which "consists of making with open eyes the decisions that give shape to one’s life". There is no need of Kantian maxims or categorical imperative. Autonomy involves a new integrity or high standards of honesty which consist in a sort of lived intellectual honesty that is characteristic of a mind that is open to alternatives and spirit of questions. Alienation is regarded as a price of autonomy. A searching critique of current conceptions of alienation is given in Chapter 6. The author recommends a creative autonomous way of life. In his concluding words "guilt is mired in the past, as is retributive justice. Distributive justice is struck in the present, but by the time it has figured out how to cope with that, it is dated. We must move beyond guilt and justice. We must give up the pleasant notion that we can have all good things at once. What is best is not things at all but creative autonomy". This is an important theme and requires closer scrutiny of its central arguments and its suggested alternative ethics of creative autonomy.—A.S.C. (shrink)

In contrast to the difficulties faced by the pursuit of equality, the protection for each individual of a sphere of personal autonomy is the object of a well‐developed and effective tradition of ethical and institutional design. Its main resource is the definition and protection of individual rights. The recognition of a system of rights is a moral and social practice that permits some of the relations between persons to be governed by pure procedural justice. Other values besides (...) autonomy or individuality itself influence the design of such practices, and some rights are, to an important extent, instrumental in their justification. (shrink)

Is it the case that the law, in order to be fully legitimate, must not only be adopted in a procedurally correct way but must also comply with certain substantive values? In the first part of the article I prepare the ground for the discussion of legitimacy of democratic laws by considering the relationship between law’s legitimacy, its justification and the obligation to obey the law. If legitimacy of law is seen as based on the law being justified (as in (...) Raz’s ‘service conception’), our duty to obey it does not follow automatically: it must be based on some additional arguments. Raz’s conception of legitimate authority does not presuppose, as many critics claim, any unduly deferential attitude towards authorities. Disconnection of the law’s legitimacy from the absolute duty to obey it leads to the second part of the article which consists in a critical scrutiny of the claim that the democratically adopted law is legitimate only insofar as it expresses the right moral values. This claim is shown to be, under one interpretation (‘motivational’), nearly meaningless or, under another interpretation (‘constitutional’), too strong to survive the pressure from moral pluralism. While we cannot hope for a design of ‘pure procedural democracy’ (by analogy to Rawlsian ‘pure procedural justice’), democratic procedures express the values which animate the adoption of a democratic system in the first place. (shrink)

G.A. Cohen accuses Rawls of illicitly tailoring basic principles of justice to the ‘crooked wood’ of human nature. We are naturally self-interested, for example, so justice must entice us to conform to requirements that cannot be too demanding, whereas Cohen thinks we should distinguish more clearly between pure justice and its pragmatic implementation. My suggestion is that, strictly speaking, Rawls does not rely on facts of any kind to define his constructive procedure or to argue that (...) his principles of justice would be its result – facts only come in to determine whether actual people satisfy the moral conceptions he defines and to determine whether his principles of justice can be stable for the right reasons. A distinguishing feature of normative constructivism, I claim, is that it begins with stipulated models that can include normative and descriptive elements; we then proceed to engage in a priori reflection about what these models presuppose and how they relate to one another. Rawls appeals to commonsense morality to partially define a citizen as someone who is engaged in social cooperation with others and a society as a fair system of cooperation; he then draws from these organizing ideas to characterize the original position for choosing principles of social regulation for societies and citizens so defined. Whether or not there are any actual people or societies that match Rawls’ models is a different matter, and irrelevant to the internal structure of his theory, but if the models do apply to people and societies in the real world then Rawls has given a powerful argument that his principles of justice are the most reasonable for them. Rather than watering down principles of justice to suit human nature, Rawls argues for principles of justice on a priori grounds and hopes that we can live up to the moral self-conceptions that underlie them. (shrink)

Do the demands of egalitarian justice extend to the international realm? Some believe that a positive answer follows from a simple line of reasoning: where a child happens to be born is a morally arbitrary fact; accordingly, it shouldn’t unduly influence her life prospects, as will inevitably be the case unless economic inequalities between countries are ironed out. I argue that this style of argument overlooks an important problem concerning the extent to which a person can unilaterally impose enforceable (...) obligations on others by choosing to have a child. I maintain that properly egalitarian duties of distributive justice only arise when this problem of unilateral imposition has been solved. I further argue that solving the problem requires robust political institutions that do not exist in the international context—institutions instantiating a version of what John Rawls calls pure procedural justice, to ensure that the aggregate result of individual reproductive choices is acceptable to all. (shrink)

The issue of how to justify right and wrong is a recurring methodological problem in ethics. We can, somewhat simplified, distinguish between people who argue that right and wrong must be confirmed by our moral convictions and people who maintain that morality must be justified by principles independent from these convictions. The issue hinges on arriving at a standard or criterion for when something is right or wrong. The author discusses this issue in light of the distinction between perfect (...) class='Hi'>procedural justice and pure procedural justice, drawing on the works of John Rawls and Peter Singer. One shortcoming affecting both these approaches is how they are unable to account for our basic beliefs. Using Ludwig Wittgenstein’s On Certainty as a point of departure, the author attempts to demonstrate that some of our basic beliefs cannot be formulated in propositions, but rather are expressed by our actions. The author concludes that we, in light of this, must distinguish between our ethical propositions and our basic beliefs. The former may be subject to doubt and may, consequently, be expressed in the form of propositions, whereas the latter is only expressed by what we say and what we do. (shrink)

Recognizing the contingent entanglement between historiography's social and political roles and the conception of the discipline as purely factual, this essay provides a detailed analysis of "revision" and its connection to "revisionism." This analysis uses a philosophical approach that begins with the commonplaces of our understanding as expressed in dictionaries, which are compared and contrasted to display relevant confusions. The essay then turns to examining the questions posed by History and Theory's Call for Papers announcing its Theme Issue on Revision (...) in History, and, where philosophically relevant, answers them. The issue of paradigm change proved to be quite significant and required particular attention. A "paradigm" is analyzed in terms of Quine's "web of belief," and that web is itself explained as an ongoing process of revision, in analogy with Rawls's concept of pure procedural justice. Adopting this approach helps clarify the entanglement between politics and historiographical revision. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Interpreting from the IntersticesThe Role of Justice in a Liberal Democracy—Lessons from Michael Walzer and Emmanuel LevinasNicholas R. Brown (bio)1As anyone who is familiar with more recent theological debate can attest, the appraisal of the liberal democratic tradition has undergone a radical reevaluation in the wake of Stanley Hauerwas’s and Alasdair MacIntyre’s scathing critiques. As a result of their blistering assault, religious ethicists and philosophers now find themselves (...) operating within a discursive milieu that is almost the photo negative of the one they previously inhabited. For what has followed After Virtue and After Christendom is a situation in which compliance with liberal democratic norms is now perceived as actively inveighing against justice rather than as an integral prerequisite to its pursuit.There are cracks, however, beginning to emerge in the MacIntyre/Hauerwas edifice. For what is becoming disputed and increasingly so among a growing chorus of religious ethicists and philosophers is whether their critical reading of liberal democracy offers the most [End Page 155] helpful or even the most biblical way to think through its own moral dimensions as well as those undergirding its relationship with justice.It is the emergence of these criticisms that forms the basis for this essay. For the thesis that I wish to advance below is that liberal democracy offers religious ethicists and philosophers alike a moral framework and vocabulary from which it is possible to comprehend and enact the normative precepts encapsulated within a biblical understanding of justice. Accordingly, some aspects of my argument will build upon the rhetorical trajectories that have been already charted by the ethicists and philosophers I mention above.What distinguishes my approach, however, is that I will proceed from a more focused examination of some of the ethical and political undercurrents found within contemporary Jewish thought. More specifically, I want to probe the ethical philosophy of Emmanuel Levinas and the political philosophy of Michael Walzer, for I believe the juxtapositional methodology of interpretation which informs each of their perspectives is illustrative of an interstitial hermeneutic that helps further illuminate the moral compatibility between biblical and democratic accounts of justice.2By now, MacIntyre’s and Hauerwas’s critiques of the liberal democratic tradition have been so thoroughly documented, discussed, and dissected that a review of their perspectives cannot help but have a certain pleonastic quality.Probably the most significant and disturbing problem that MacIntyre and Hauerwas see belying the liberal democratic tradition stems from its conception of time and space, or more precisely, its lack thereof. For what they discover upon a more careful probing of its moral and epistemological underpinnings is a pursuit of transcendence not dissimilar to Gnostic metaphysics. In the case of liberalism, however, the existential encumbrances to be excised are not corporeal and carnal in nature, but historical and social. [End Page 156]Such conditionalities, surmise liberal theorists, are so shot through with conceptual prejudices that they comprise an interpretative straight-jacket that vitiates against the kind of objectivity necessary to engage in a nonparochial process of moral and political discernment. For it is precisely this ability “to be able to stand back from any and every situation in which one is involved, from any and every characteristic that one may possess, and to pass judgment on it from a purely universal and abstract point of view that is totally detached from all social particularity” which MacIntyre sees as constituting “the essence of moral agency” of modern liberalism (AV 31–32). Therefore, “liberalism is successful,” maintains Hauerwas, “exactly because... [it] provide[s] that philosophical account of society designed to deal with” the moral and political implications such a social and historical denuding portends, namely “a system of rules that will constitute procedures for resolving disputes as they pursue their various interests.”1However, what liberalism defines as success MacIntyre and Hauerwas see as anything but. Instead, both judge its “system of rules” to be an insidious prescription for a particularly virulent form of moral nihilism and political bankruptcy. For by stripping moral and political discourse of their historical and social referents, liberalism, ironically and tragically, eviscerates itself of the very heuristic and discursive practices necessary to make those... (shrink)

In this paper I argue that resource allocation in publicly funded medical systems cannot be done using a purely substantive theory of justice, but must also involve procedural justice. I argue further that procedural justice requires institutions and that these must be “local” in a specific sense which I define. The argument rests on the informational constraints on any non-market method for allocating scarce resources among competing claims of need. However, I resist the identification of (...) this normative account of local justice with the actual approach to local decision-making taken within the UK National Health Service. I illustrate my argument with reference to the case of provision of In Vitro Fertilisation within the UK NHS. (shrink)

« Real politics » : Some remarks on justice and politics The focus of the article is on the foreclosure of justice from the constellation of modern political concepts, that is, the erosion which modernity operates concerning the conditions which would enable us to pose the question of justice. The failure of all modern attempts to formulate the right of resistance shows the collapse of the idea of justice, henceforth reduced to being either a purely formal (...) procedure or the will of majority. From this point of view, justice is merely the advantage of the stronger, as we can see in the position of Thrasymachus, already criticised by Plato. The essence of the crisis we are facing today involves more than just economics. It also involves law and politics. The moment is thus an opportunity to re-open the question of justice. To do so, we must go beyond the principle of majority decision. True politics, an idea which traverses Kant and Walter Benjamin, envisages the question of justice beyond the doxastic horizon. It re-opens the Socratic conflict between truth and opinion. The core of the problem hinges on the possibility of a real political change in this political form, the form of a modern democracy which represents itself as absolute and un-transcendable. (shrink)

Workplace procedural justice is an important motivator for employee work attitude and performance. This research examines how procedural justice affects employee engagement. We developed three propositions. First, based on the group engagement model, we hypothesized that procedural justice enhances employee engagement through employee organizational identification. Second, employees with stronger moral identity centrality are more likely to be engaged in their jobs. Third, procedural justice compensates for the effect of moral identity centrality on (...) employee engagement. Specifically, when procedural justice is higher, employee moral identity centrality plays a less significant role in employee engagement; whilst when procedural justice is lower, the effect of moral identity centrality on employee engagement is stronger. Research findings based on an employee survey in a leading financial service organization provide support for the above propositions. (shrink)

This article considers procedural justice in the law, with specific reference to the adjudicative context of governmental officials applying legal standards to particular cases. We critically survey the three main accounts of procedural justice in the literature: utilitarian, outcome‐based, and dignitarian. Utilitarian and outcome‐based theories share the instrumental view that the only purpose of procedures is to lead to accurate legal outcomes. However, the former are willing to trade off the benefits of accuracy against its costs, (...) whereas the latter hold that procedural rights are necessary to guard against the injustice caused when individuals' legal rights are mistakenly denied. Dignitarian theories maintain that process matters apart from outcomes, because procedures should show respect for individuals' dignity in the Kantian sense of rational agency. We present a new perspective, drawing on relational theory. Relational theory holds that we are social creatures whose self‐identities and sense of self‐respect are bound up with the quality of our relationships with other individuals, groups, and institutions. Our relational account is informed by empirical research in social psychology which has found that people's evaluation of procedures is substantially influenced by relational concerns. (shrink)

We dedicate this book to John Thibaut. He was mentor and personal friend to one of us, and his work had a profound intellectual influence on both of us. We were both strongly influenced by Thibaut's insightful articulation of the importance to psychology of the concept of pro cedural justice and by his empirical work with Laurens Walker in reactions to legal institu demonstrating the role of procedural justice tions. The great importance we accord the Thibaut and (...) Walker work is evident throughout this volume. If anyone person can be said to have created an entire field of inquiry, John Thibaut created the psychological study of procedural justice. (To honor Thibaut thus in no sense reduces our recognition of the contributions of his co-worker, Laurens Walker, in the creation of the field. We are as certain that Walker would endorse our statement as we are that Thibaut, with characteristic modesty, would demur from it. ) Even to praise Thibaut in this fashion falls short of recognizing all of his contributions to procedural justice. Not only did he initiate the psy chological study of the topic, he also built much of the intellectual foun dation upon which the study of procedural justice rests. Thibaut's work with Harold Kelley (1959; Kelley & Thibaut, 1978) created a social psy chological theory of interdependence that, among many other applica tions, serves as the basis for one of the major models of the psychology of procedural justice. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins (...) in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

Climate change governance is extremely challenging because of both the intrinsic difficulty of the issues at stake and the plurality of values and world-views. For these reasons, the ethical concerns that characterise climate change should also be meaningfully addressed through a specific version of procedural justice. Accordingly, in this article we adopt an impure notion of procedural justice. On this theoretical basis, we define relevant fairness criteria and contextualise them for climate governance systems. Then, we empirically (...) justify fairness criteria against a critical and divisive element for the future governance of the Green Climate Fund, i.e., the no-objection procedure. The article concludes with some considerations prompted by the analysis. (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a (...) manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)

It is a well-established fact that we tend to underestimate our susceptibility to cognitive bias on account of overconfidence, and thereby often fail to listen to intellectual advice aimed at reducing such bias. This is the problem of intellectual deference. The present paper considers this problem in contexts where educators attempt to teach students how to avoid bias for purposes of instilling epistemic virtues. It is argued that recent research in social psychology suggests that we can come to terms with (...) this problem in two steps, the second of which involves educators communicating their intellectual advice in a procedurally just manner. The components of the relevant form of procedural justice are specified and related to Miranda Fricker and David Coady’s notions of epistemic justice. Finally, a series of objections are considered and responded to. (shrink)

In her book _Inclusion and Democracy_, Iris Marion Young offers a defense of a certain model of deliberative democracy and argues that political institutions that conform to this model are just. I argue that Young gives two contradictory accounts of why such institutions are just, and I weigh the relative merits of two ways in which this contradiction can be resolved.

This collection of essays brings together the very best philosophical and legal writings on procedural justice over the last half century. The articles are written by experts from legal and philosophical backgrounds and analyze values such as transparency, predictability, and even-handedness in law-making, law-enforcement and adjudication; discuss core concepts in Anglo-American jurisprudence such as equal protection, due process and the rule of law; and deal with the distinctive branch of justice that involves norms and processes of applying (...) law to citizens. (shrink)

Notions of procedural justice alone are sufficient to support evidentiary exclusions in a wide variety of legal and law-like institutions that focus on conflict resolution, including courts. Special attention is paid to the relevance and need for exclusion of parties’ own assessments of the value of their claims.

This book bridges a scholarly divide between empirical and normative theorizing about procedural justice in the context of relations of power between citizens and the state. It will be of interest to a wide academic readership in philosophy, law, psychology and criminology.

Attitudes toward repository projects cannot be explained merely on the basis of perceived risks, trust, or technical information. Issues of justice and fairness frequently arise when burdens and benefits are to be allocated. A fair distribution across the various parts of a given territory of the waste to be stored is unlikely to be accomplished as it is contingent on appropriate geological formations and other factors. The process by which the specific distribution is determined and accomplished needs to be (...) taken into account as well. Thus, justice evaluations of both the distributive outcome and the process itself, by which the outcome is accomplished, are likely to affect people’s attitudes toward and acceptance of siting decisions. Data from a number of methodically different studies conducted over the last eight years on site selection in Switzerland suggest that a fair procedure is more essential than a fair distribution to a consensus about the decisions made. As a consequence, even normative assessments of the fairness of a distribution of nuclear waste must consider procedural justice as a valuable indicator, independently of the particular shape of the distribution. However, contextual factors, such as the wider nuclear energy strategy of a country, may compete with procedural fairness in terms of importance. Even though fairness is a requirement it does not guarantee acceptance. It may, however, enhance acceptability from a moral standpoint. (shrink)

This paper offers a novel situational approach to study organizational justice in which the proposed unit of analysis is managerial behavior manifested in argumentation rather than employee justice perceptions. The currently dominant theoretical framework in justice research, which is built on justice perceptions, neglects the unique features of organizational order and vulnerability of procedural justice perceptions. As the procedural justice concept belongs chiefly to a spontaneous market order under which the rule of (...) law is made possible, it is inappropriate to transfer this concept to an organization in which the rule of authority is dominant. Therefore, except the limited legal domain in which managerial freedom is restrained by laws, procedural justice in organizations represents a mirage that can give rise to hypocritical managerial actions that can legitimate morally controversial outcomes via eristic tactics. In contrast, interactional justice is of great importance to organizations in that employees and organizations can ensure their rational economic exchanges without deception. However, current formulations of interactional justice often regard interactions as a palliative recipe designed to alleviate reactions to outcomes and not as a constituent of distributive justice. Perelman’s argumentation theory can offer a new conceptualization of interactional justice that addresses this gap. (shrink)

Issues of methodology are central to the philosophy of moral progress. However, the idea that effective moral methodology, as well as being instrumental to progress, might also constitute progress has not been adequately explored. This paper will critically assess the merits of this idea – what I call ‘pure proceduralism about moral progress’ – taking Philip Kitcher's recent theory of ‘democratic contractualism’ (2021) as a test case. An epistemology of pure procedural moral progress will be sketched: namely, (...) a naturalised epistemology of paradigmatic instances of moral progress. Assuming an ideal procedure exists and has been at least approximately instantiated (an empirical claim), we learn about its form by studying paradigms of historical moral progress. From this epistemological method will be derived theoretical constraints on what can count as a theory of moral progress per se: it must capture the core semantic constraints on the term ‘moral progress,’ those features without which we would not recognise a change as moral progress. While this poses a tougher challenge for pure proceduralism than for more traditional approaches to moral methodology, it will be concluded that the potential of pure proceduralism as a viable metaethics of moral progress remains an exciting open question. (shrink)

In the intellectual confusion prevailing since the demise of Marxism and “marxism”, the attempt is made to define democracy as a matter of pure procedure, explicitly avoiding and condemning any reference to substantive objectives. It can easily be shown, however, that the idea of a purely procedural “democracy” is incoherent and self-contradictory. No legal system whatsoever and no government can exist in the absence of substantive conditions which cannot be left to chance or to the workings of the (...) “market” but must be posited as objectives of political activity. The confusion results from a deficient understanding of what makes a society and an empty idea of “freedom”. The objective of politics is not happiness, an affair to be left to the individuals, but it certainly is liberty understood as participation in the governance of the polity; it is also the pursuit of the common good, defined as the sum of the prerequisites and facilitations of individual autonomy depending on collective action, and as the realization of commonly agreed collective goals. (shrink)