Procedural Justice

Klaus F Röhl, Stefan Machura, Klaus F Röhl, Stefan Machura

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9780367000981
• eBook ISBN: 9780429815331
• Edition: 1
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

First published in 1997, this volume explores how procedural justice, the fairness of the way decisions are reached, is an important factor in human behaviour. In this book we see the ways that it is important for the legitimacy of a political rule as well as for the acceptance of administrative decisions. The volume also deals with the interrelation between procedural and distributive justice and helps to identify criteria of procedural justice.

This book provides a long-desired overview of the multidisciplinary and international discussion of procedural justice. It deals with social psychological insight and empirical studies as well as with the contributions of discourse and systems theories. The books contributors also trace the roots of the present discussion to philosophical predecessors as well as formulate consequences for politics.

1 Procedural Justice : Introduction and Overview

KLAUS E RÖHL

From Substantive to Procedural Justice

At first glance, procedures seem only a means to bring about the just allocation of rewards and punishments, of benefits and burdens. Thus, in a discussion of procedural justice, we might first expect an analysis of how procedures should be be shaped in order to achieve the most just distribution possible. In this sense, a distribution is just if it is made as accurately as possible according to a measure outside of the procedure. We usually call this kind of justice distributive justice, substantive justice, or outcome justice.

The question, however, of the objective suitability of procedures for the establishment of distributive justice is only the starting point. For, on the one hand, it has proven to be the case that participants and observers evaluate procedures as more or less just or fair independent of their outcome, and that this estimation is quite relevant to whether the distribution resulting from a procedure is accepted as just. On the other hand, modern societies lack objective or generally agreed-upon standards for the just distribution of life’s chances and risks. In many cases, it seems easier to agree on a procedure than on the distribution itself. As a result, material distribution standards are replaced by procedures.

What Is a Procedure?

The answer to the question, What is a procedure? is not at all obvious. If we try to identify the essence of the concept of procedure, we could get lost within an endless philosophical discussion of form and substance. But we cannot totally refuse to draw a line. There exists a danger that the notion of procedure could lose its contours, for in a broad sense all social institutions are ‘procedures’ (Peters 1991).

As we work within a legal context, different kinds of resolution and decision procedures come to mind. The most prominent are court and administrative procedures. Arbitration is a procedure, too. Mediation and negotiation, however, may be considered procedures only if they develop in a preordered framework, not spontaneously.

Thibaut and Walker (1975) used to argue that procedures are necessary only when allocation is in dispute, because only then does the question of procedure arise. Sociologists no longer accept this limitation. The field of research has been considerably extended by including procedures which are not aimed at dispute resolution but oriented toward shaping the future; procedures, in other words, which are not reactive but proactive. In this manner, administrative procedures and the procedure of parliamentary legislation also come under scrutiny. The same is true for many allocation proceedings both inside and outside organizations. These need not even entail allocation by a third party or a higher authority. Rule-governed negotiations, such as collective bargaining, also constitute procedures in this sense.

On the other hand, I would exclude from our field technical procedures, symbolic operations, and discourses (discussions). I am not so sure about investigations and inquiries (see Peters 1991). A scholarly investigation is probably not a procedure. A legally regulated investigation, however (as done, for instance, by a parliamentary commission), would certainly draw our attention.

I doubt, however, that processes which do not aim at a decision should be considered procedures. Lind and Tyler (1988) contend that excluding such processes places artificial restrictions on procedural justice phenomena. They argue that recent studies have shown ‘that judgements of procedural justice arise in contexts in which no real decision is made and that procedural judgements are stimulated by factors such as respect or politeness, which have nothing really to do with decision making’.

It seems to me that sociologists tend to use a much narrower concept of procedure than do psychologists. Also holding a narrower concept is Luhmann (1969), who limits his concept of procedure to a social system which has the specific function to work out a single binding decision and is therefore only a short-term phenomenon. He points to the prestructured framework and to differentiation from a social environment as preconditions for a procedure. Only by these features does a procedure become to some extent independent from its environment and autonomous.

The distinction between distributive justice and procedural justice always makes good sense in those cases where more or less rule-governed procedures have developed which precede any allocation. To me it seems important, as it does to Luhmann, to stress the difference between an actual procedure which is conducted over time and the general framework within which procedures of the same kind can be repeated. Even the encounters between citizens and police which have been studied by Tyler and Folger (1980) can be procedurally structured. Encounters of this kind may lead to a decision by a police officer to issue a ticket or to file a formal charge. I doubt, however, whether informal processes within an organization which do not aim at a decision belong to our topic, although there may be concerns about ‘fairness’. After all, Greenberg and Tyler (1987) concede that within an organizational context, fairness may mean something different from what it means in dispute processing or in allocation. I would also exclude from our field a study by Tyler and Caine (Tyler and Caine 1981; Tyler, Rasinski, and Spodick 1985) on the evaluation of group leaders and political authorities, or research on voting behaviour as dependent upon the perceived fairness of politicians, or the interviews (mentioned by Wasserman 1992) with venture capitalists and entrepreneurs who referred to procedural justice criteria to explain their level of satisfaction. I am afraid that an unrestricted notion of procedure leads to the conclusion that every interaction is a procedure, so there would be no difference between procedural justice research and general communication analysis.

Dimensions of Procedural Justice

In the context of research in the fields of sociology and social psychology, the notions of ‘justice’ or ‘fairness’ with regard to procedures do not refer to a normatively binding judgement of the sort that moral philosophers have in mind. Instead, they focus on a factual phenomenon that can be empirically observed.

According to Thibaut and Walker, we have to distinguish between objective and subjective procedural justice. Lind and Tyler (1988, 3) define objective procedural justice as ‘the capacity of a procedure to conform to normative standards of justice, to make either the decisions themselves or the decision-making process more fair, by, for example, reducing some clearly unacceptable bias or prejudice’. I only want to add that the ‘normative standards of justice’ need not be objective themselves. Sometimes they may be ‘clearly unacceptable’, but often they are highly disputable.

Lawyers are mainly interested in questions of objective procedural justice. They want to know what kind of evidence is appropriate to find the truth, and how procedure should be structured in order to lead judge and jury to an unbiased and substantively justified decision. However, it is not common to count studies on the quality of evidence or jury studies as procedural justice research. The field is dominated by social psychologists who are mainly interested in subjective procedural justice, i.e., with the response of participants and observers to particular procedures (Lind and Tyler 1988).

There exists, however, one exception. I think of the numerous studies appearing during the last decade, which spoke of ‘quality of justice’ and dealt with alternative dispute resolution as compared to court proceedings. Studies of this kind offer a strange mixture of objective and subjective aspects. Vidmar gives a comprehensive overview in this volume.

Distributive and Procedural Justice

The goal of a procedure is to distribute benefits and burdens. At the end of the procedure, one party is the winner, another the loser. If we assumed that people are primarily motivated by self-interest, we would conclude that the winner is always content and the loser always dissatisfied. For the winner a positive outcome would always be just, and for the loser a negative outcome would always be unjust (the principle of absolute outcome). However, things are not so simple. Usually the people involved do not look only at the last event in time; they take a longer chain of events into account, and eventually they strike a balance. Research on distributive justice deals with how the relevant situation is defined and what principles are used in evaluation.

Such research has long been a tradition among social psychologists. A very prominent line of thought which developed during the 1960s was so-called equity research (Adams 1963; Berkowitz and Walster 1976). Equity theory assumes that people continually strive to maximize the difference between the rewards they receive and the costs they incur. This leads to the assumption that every individual who is involved in, or merely observes, an exchange, draws a balance more or less consciously by judging this exchange as just or unjust. Accordingly, the individual strives to repeat or continue an exchange judged to be just, to discontinue an exchange judged to be unjust, or to take actions aimed at re-establishing justice.

The systematization of the justice judgements observed in numerous studies has led to distinctions between three principles of orientation for the evaluations. These are

the principle of proportional equity,

the equality principle, and

the needs principle.

These principles of substantive justice are old acquaintances. However, unlike philosophers, social psychologists don’t ask for the normative justification of these principles. Social psychologists’ studies deal with determining which variables affecting an individual or a situation are responsible for the choice of a particular principle of justice. In addition, social psychologists have investigated what impact a particular principle of justice may have upon relations within a social group. Numerous studies have provided many interesting details, but, of course, they have not been able to answer all questions. Two prominent points of debate remain open: whether the three material principles of distribution can be reduced to the one principle of proportional equity, and what the respective effects of the proportional equity principle and the equality principle are upon the performance and solidarity of a social group.

We need not go into the details of distributive justice here. I only want to mention that, with regard to our topic, the equality principle has an interesting feature; namely, it is very close to procedural justice. Once this principle has been chosen, its application is not difficult: If one wants to distribute the cake, one just counts the number of people who sit around the table and cut the cake into that many pieces.

The application of the proportional equity and needs principles is much more difficult. Both principles confront us with the problem of measurement. What price is adequate? How should the damage be assessed? Does the crime call for prison or is a fine sufficient? Who is needy? What kinds of needs shall be compensated? Questions of this sort very often lead to discussions.

The people who are involved in an exchange do not encounter a measurement problem at the beginning. The parties agree on a voluntary exchange only because they measure differently, with each valuing the other’s contribution more highly than his own. The interest of both parties in making an exchange is motivated by this very difference. It makes the interaction a bargaining game. If the parties agree on an exchange, this means that they have come to view their respective contributions as equivalent. They take the outcome of their negotiation as just unless the bargaining process has been distorted by a striking difference in bargaining competence or by the greater power of one party to threaten the other.

Evaluation of the respective contributions by the parties themselves depends primarily on their needs and on their capabilities to offer a good in exchange. Whether the buyer sees the price as just depends above all upon the urgency of his needs and upon his means. In addition, however, the buyer also compares how much others must pay for a similar item. Where a going rate is known, it may become the primary measurement. In this case, the equivalence of input and output is, at least to some extent, replaced by the principle of equal treatment.

In a more highly organized group, a second supporting principle applies; namely, the principle of entitlement and obligation. Lawyers tend to consider this principle not as supplementary but as the basic principle of justice. From a psychological point of view, however, the principle’s supporting character becomes apparent: every entitlement can be evaluated against the basic principles of distributive justice. Equality, entitlement, and obligation can usually be assessed more easily than proportional equity. Nevertheless, the judgement is not obvious. At this point, one understands procedural justice as a principle of the second order, as a supporting principle.

Procedural justice scholars consider different variables to be of potential relevance for the acceptance of a decision (Tyler 1984):

— the outcome as such, i.e., the quality of the outcome as reward or punishment (absolute outcome)

— the outcome expected or hoped for by the participants (relative outcome)

— the outcome which is expected from the observation of similar cases (equal treatment)

— the outcome which the participants deem just according to their own standards (distributive justice)

— the evaluation of the authority which is conducting the procedure (legitimacy)

— the fairness of the procedure leading to the outcome.

These variables are not independent but interconnected. For example, the expected outcome depends, among other things, on what is considered just. In general, legal and equal treatment should coincide. The evaluation of a procedure may be influenced by the legitimacy of the institution which is responsible. Many studies, however, claim to have demonstrated that both participants and observers evaluate distributive and procedural justice more or less independently, so that the acceptance of a decision depends not only on the outcome but also on whether the procedure as such is considered fair. The more the adversaries involved—according to the basic hypothesis—evaluate a procedure as fair or just, the sooner they will accept the distribution resulting from the procedure as ‘just’, even in those cases where the outcome of the procedure represents an objective disadvantage for them. That is the so-called procedural justice effect. The most comprehensive explanation for this phenomenon is offered by Lind and Tyler: They argue that an adequate judgement of outcome fairness is a much too difficult task even for professionals. Therefore procedural justice judgements work as a kind of shortcut, as a heuristic for the overall justice evaluation (Lind 1994a). Schmidt in this volume gives a more detailed explanation of how procedural and dis...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures and Tables
• Preface
• 1 Procedural Justice: Introduction and Overview
• 2 The Procedural Turn: Social Heuristics and Neutral Values
• 3 The Procedural Justice Approach in the Context of Systems Theory: The Theoretical Impact of Law As a Symbolic Generalized Medium of Communication
• 4 Procedural Justice As a Contested Concept: Sociological Remarks on the Group Value Model
• 5 The Function of Procedural Justice in Theories of Justice
• 6 Procedural Justice and Alternative Dispute Resolution
• 7 Features of Procedural Fairness: Communication in Decision-Making About Diversion and Victim-Offender Mediation
• 8 Procedural Aspects of Distributive Justice
• 9 The Individual in the Shadow of Powerful Institutions: Niklas Luhmann’s Legitimation by Procedure As Seen by Critics
• 10 Subjective Procedural Justice and Civil Procedure
• Index