The Very Idea of Pure Procedural Justice

The Very Idea of Pure Procedural JusticeAuthor(s): William NelsonSource: Ethics, Vol. 90, No. 4 (Jul., 1980), pp. 502-511Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2380450 .

Accessed: 27/03/2014 21:20

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to Ethics.

http://www.jstor.org

This content downloaded from 143.167.194.192 on Thu, 27 Mar 2014 21:20:28 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=ucpress

http://www.jstor.org/stable/2380450?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


The Very Idea of Pure Procedural Justice*

William Nelson

Procedures are a source of puzzlement for moral theory. While we sometimes think it desirable that procedures be adopted or followed, or that their outcomes be accepted, we often find it difficult to explain why. Why must we comply with elaborate court procedures, and what makes these procedures the right ones? What counts as a good reason for preferring one set of legislative procedures to another, and why must we accept the legislation that results from such procedures even if it is wrong? If we know the right result independent of the procedure, why not ignore the procedure?

John Rawls has advanced our understanding of the function and importance of procedures with his discussion of different types of "procedural justice" in A Theory of Justice.1 His conception of "pure Pro- cedural Justice" (pure PJ), in particular, looks as if it might shed new light on a number of difficult issues. For example, it looks like at least a good starting point for discussions of due process in the law or discussions of the justification of democratic voting procedures. In addi- tion, the concept of pure PJ seems to play an important role in parts of Rawls's own theory. In my opinion, philosophers have paid insufficient attention to this concept itself. They have failed to notice how novel it is, and, as a result, they have failed to examine it critically. Accordingly, my aim in the first part of this paper is to subject the idea of pure PJ to critical analysis. In the second part, I shall look briefly at some attempts to use the idea of pure PJ to resolve specific problems, both in Rawls's theory and elsewhere, and I shall discuss these attempts critically in light of the analysis offered in Section I.

I

I have said that the idea of pure PJ is a novel idea. I want to stress this point, since the ready acceptance the idea of pure PJ has found with

*This is a revised version of a paper given at the Western Division APA meeting, April 1978. I am grateful to Robert Andelson for his commentary at the meeting, to David Lyons and John Wilcox for written comments, and to M. G. Yoes, Jr., for extensive discussion.

1. John Rawls,A Theory ofJustice (Cambridge, Mass.: Harvard University Press, 1971). Subsequent references in the text are to this volume.

Ethics 90 (July 1980): 502-511 ? 1980 by The University of Chicago. 0014-1704/80/9004-0002$1.00

502



Nelson Procedural Justice 503

some may derive from a tendency to confuse it with other, more familiar ideas.2 Not only is pure PJ distinct from perfect and imperfect procedural justice (to be discussed below), but it is also distinct from what Rawls calls "formal justice" (sec. 10). He thinks offormal justice as a kind of minimal justice that is secured whenever like cases are treated alike. Since it requires only this, it results whenever rules or procedures are consistently followed and impartially applied. The idea of pure PJ also involves the idea that, in some cases, following rules or procedures renders an outcome just. However, I think it clear that the two ideas are supposed to be distinct. Not only does Rawls discuss them in different places (secs. 10 and 14) but he also invokes the idea of pure PJ in support of the claim that the outcome of market exchange in ajust society is just, whatever it is (sec. 14, and pp. 304-5). Surely he does not mean merely that it is just in the minimal sense of formal justice.

If there is danger of confusing the idea of pure PJ with other ideas, we should look carefully at Rawls's definition of it. Unfortunately, he does not offer a fully fledged definition. He introduces the idea by contrasting it with two other notions, perfect PJ and imperfect PJ. We have a case of perfect PJ if we have some independent specification of what justice requires in a certain situation, and it is possible to devise a procedure that will automatically produce the independently defined just result. We have a case of imperfect PJ if, again, we know independently what results are required by justice, but we cannot devise a procedure that will automatically produce those results. The best we can do is to establish a procedure that will minimize the possibility of injustice. In a case of pure PJ, however, we have no independent specification of what justice requires, but justice is a matter of importance, and there are possible procedures or rules such that, if they are followed, the outcome will automatically be just, or not unjust (pp. 84-86). It is as if the procedure by itself makes the outcome just.

This is not a very helpful definition. It is like a definition by genus and differentia, but the genus is itself in need of explanation. Each of these three notions is supposed to be a type of procedural justice, but what is procedural justice in general? I suspect Rawls has in mind, at a minimum, something like this: A "case" of procedural justice is a situation in which (1) justice is a matter of importance and (2) it is desirable from the point of view of justice that we establish or comply with some procedure. What Rawls has offered is a classification of such situations into three categories, cases of perfect, imperfect, or pure procedural justice. If I am right, then, we do not have a special kind of justice,

2. To add to the confusion, when he introduces the idea of pure PJ, Rawls refers to Brian Barry's Political Argument (London: Routledge & Kegan Paul, 1965), chap. 6. Barry discusses procedural justice at length, but his classifications do not correspond to Rawls's. He does not use the term 'pure procedural justice,' and I can find no example which would clearly be classified by Rawls as a case of pure PJ.



504 Ethics July 1980

procedural justice, and then various subkinds. Instead, we simply have different types of situations in which procedures are important from the perspective of justice. Assuming I am correct on this point, what I now want to ask is whether there are any cases of pure PJ and, if there are, how we should understand them.

It seems clear enough that there are cases of imperfect PJ-that there are situations in which it is possible and desirable to devise procedures compliance with which will tend to minimize injustice. Rawls suggests the jury trial as an example (p. 85). It also seems likely that there are cases of perfect PJ, at least as a limiting case of imperfect PJ. Rawls suggests a problem of fair division where the aim is to share a cake equally. The procedure is to have one person divide the cake and let all others choose before the person who divides (p. 85). There is nothing novel or unusual about the idea of designing procedures to achieve independently specified outcomes. But are there cases of pure PJ? Are there situations in which procedures somehow make their outcomes just?

The two questions I have just raised are evidently distinct. One is the question whether there are cases of pure PJ, the other is a question about whether these cases can be explained in a certain way. It is important that we keep them distinct. I shall begin with the first. What we know so far is that, if there are any cases of pure PJ, the following holds: There are situations in which justice is an issue, in which there is no independently defined standard of justice, and in which there is some procedure or process such that, if the procedure is followed, the outcome is just.3

It seems clear that there are situations like these. When people gamble, to use one of Rawls's examples, or when they play tennis, so long as they do so voluntarily, we seem to have a situation of the relevant kind. So long as the rules are followed, the result is just. Those who lose have no ground for complaining. Those who win are entitled to their winnings. The same holds when people engage in an exchange. If you want my bicycle, we bargain, and I agree to sell it to you for $50, the result of the exchange is just. I am entitled to the $50, and you are entitled to the bicycle.

There do seem to be situations of the kind implied by the idea of pure PJ. How are they to be understood? What accounts for the justice of the outcomes in these examples? This is the second of the two questions mentioned above. The cases I have so far described can be understood perfectly well without invoking any new or distinctive moral ideas. All we need to understand these cases is the idea of entitlement and the free exercise of entitlement. What we have in the cases described is

3. Note that a procedure's being followed, in appropriate circumstances, is a sufficient condition for the justice of the outcome, not a necessary condition. This is the way Rawls defines pure PJ. Some who have invoked the idea of pure PJ in their own work, however, have treated compliance with procedures as a necessary condition (cf. David Resnick, "Due Process and Procedural Justice," in Nomos XVIII: Due Process, ed. J. Roland Pennock and John W. Chapman [New York: New York University Press, 1977]).




people voluntarily exercising their rights. If it is my bicycle, I have a certain range of discretionary authority over it. This discretionary authority includes the authority to transfer ownership to someone else on mutually agreeable terms. The same can be said of the case of gambling, only here I exchange my money not for a certain return but for a chance at some return. In each case, of course, I must really have the right in question: I cannot have stolen the bicycle and there must be no force or fraud. But if such conditions are met, the outcome is just.

My conjecture is that all apparent cases of pure PJ can be understood in terms of an ordinary notion of entitlement and its free exercise. Some will be ordinary transactions, others will be what I shall call "permissible games." Apparent cases not falling into one of these two categories will turn out to be cases of perfect PJ, like the cake-cutting example mentioned above. In offering this conjecture, I assume that there are rights-that people do have entitlements. This is not the place for a full-scale defense of the idea of entitlement, and I am committed to a particular account of what rights people have only to the extent that they must have rights which would account for the entitlements arising in the cases of pure PJ we have discussed. I do believe that any reason- able morality must grant people some entitlements of the relevant kind. It must grant people some range of discretionary authority over goods and over stretches of their lives.

If we accept the idea of pure PJ, we are committed to the existence of situations in which justice results from following procedures. How- ever, we are not committed to any new or original explanation for this phenomenon if it can be explained in terms of an ordinary notion of entitlement. Is it possible to find cases of the relevant kind which cannot be so explained? Consider spinning a racket to decide who serves first in a tennis match. Here we have a fair procedure, and we believe that the outcome will be fair no matter what it is. Can this be explained in terms of entitlement and its free exercise? Notice, first, that people can and do use other procedures. Sometimes they just decide, say, that the weaker player should serve first. Each has a right to play or not to play; and, within the limits of their rights, they can set up whatever ground rules they wish. Usually they use a random procedure to decide who serves. When they do so, the result is just, but simply because they are willing to use this procedure and because they have the authority to do as they wish. We have what I called a "permissible game." The justice of the outcome stems from their joint acquiescence together with their rights to acquiesce in the procedure.

Someone might reply that people lack the authority to choose just any procedure. The outcome is just only if the procedure gives each an equal chance, and this is why spinning a racket yields a just result. Perhaps the idea is that each person has an equal right to the (nondivisible) good of having the first serve. In the c-ase of a nondivisible good, equal rights to that good require a random procedure. To take this line,




however, is not to reject my main thesis. It is to treat the situation as a case of perfect PJ. We have an independent criterion for a correct result and we have a procedure that will produce this result automatically.4

When Rawls introduces the idea of pure PJ it is not clear whether he intends it merely as way of classifying certain situations or whether he intends to be offering an explanation for the justice of outcomes in such situations. I shall call the former interpretation of pure PJ the weak interpretation and the latter the strong interpretation. The fact that he does not argue for the idea beyond citing some examples suggests that he may regard it as merely a classificatory notion. On the other hand, when he discusses the gambling example, he stipulates that the bets must be fair (there must be a zero expectation of gain), and he also speaks of cases of pure PJ as situations in which "a fair procedure translates its fairness to the outcome . . ." (p. 86). These remarks suggest that Rawls has in mind the strong interpretation of pure PJ-that he means to be offering an explanation for the justice of outcomes in certain situations. What kind of explanation he might have in mind is not clear. Perhaps he would done a sense of the term just' so that, by definition, an outcome of a procedure is just if the procedure has certain properties, like intrinsic fairness. Alternatively, he might have in mind some substantive principle according to which procedures with property F, when followed in circumstances C, produce just results.

On either the strong or the weak interpretation of pure PJ, if we accept the idea, we accept the conclusion that there are situations of the sort we have discussed. On the weak interpretation, moreover, if there are actual cases, then the idea of pure PJ is vindicated. Since I believe that there are cases, I accept the idea on this weak interpretation. How- ever, I have so far claimed that all such cases are explicable by reference to an ordinary notion of entitlement and its free exercise. Hence, the existence of cases of pure PJ provides no evidence for any new, irreducible principle ofjustice or for any special sense of the term just.'5 Thus it provides no evidence for the validity of the idea of pure PJ on the strong interpretation.

The distinction between the strong and weak interpretations of the idea of pure PJ is important. Some versions of the strong interpretation, after all, involve principles or definitions the consequences of which are hardly trivial. Once we recognize that there is a difference between believing that there are situations in which following procedures pro-

4. Several people have suggested cases like this as counterexamples to my main thesis. Barry (pp. 104-5) discusses a case like this, but he says " . . . the distributive value is the randomness." That makes it clear, I think, that this is a case of perfect PJ. We have an independent criterion for ajust result and a procedure that automatically yields it. It is like Rawls's cake-cutting example again.

5. I do, of course, accept the principle that, if people exercise their entitlements freely, in legitimate ways, etc., the outcome is just. This is not a new or irreducible principle.




ducesjust outcomes and believing in some particular explanation for this phenomenon, we can evaluate our commitments on these two points independently. To make the distinction I have made is to shift the bur- den of proof to the person who wants to defend the idea of pure PJ on the strong interpretation.

So far, I have argued against the strong interpretation on the ground that it is superfluous. No new principle or definition is needed to make sense of the clear cases of pure PJ. We can understand them in terms of an ordinary notion of entitlement and its free exercise. There are additional reasons for being suspicious of the idea behind the strong interpretation. Consider the case of gambling. On the weak interpretation, it is sufficient for the outcome's being just that we are entitled to play, that we play voluntarily, and that we follow mutually agreeable rules. It is not necessary that the game have any specific character-that there be zero expectation of gain for each, for example. We are free to play a less than fair game if we choose. Also, it is not sufficient for the outcome to be just that the game have some intrinsic property. If we attempt to explain the justice of outcomes, as some versions of the strong interpretation might, by reference to intrinsic features of the game or process, there is a danger that we will ignore crucial questions, such as whether the players play voluntarily, whether they are entitled to play, and whether they are entitled to risk or alienate the goods they might give us. No matter how fair the game, the winners would not be entitled to their winnings if the losers had stolen them! (These points are relevant to the pure PJ argument for democracy I shall discuss in Sec. II.)

These examples suggest that cases of pure PJ are to be explained in terms of the idea of entitlement and its free exercise, and that the strong interpretation has counterintuitive results. But it might be objected that I am attacking a straw man. After all, to accept the strong interpretation is not necessarily to accept any particular account of the property, possession of which by a procedure guarantees the justice of its outcome. Granted. But this just brings out the point that the defender of the strong interpretation owes us an account of this property. When I ask myself what it might be, I find that I have no intuitions on the matter. Either I find myself asking whether the persons involved are partici- pating freely and are entitled to the goods they are trading or risking, or I find myself wondering whether the outcome of a procedure with the property in question will be just by some independent criterion. On the first alternative, I am introducing no new or irreducible principle at all, and on the second I am clearly confusing the idea of pure PJ with either perfect or imperfect PJ.

In the absence of an independent argument for the idea of pure PJ on the strong interpretation, and in the absence of cases of procedural justice which cannot otherwise be explained, I have rejected the idea of pure PJ on the strong interpretation. On the weak interpretation, however, I see no objection to the idea, so long as we realize that it is merely a




classificatory concept and refrain from making too much of it. It is true that it is theoretically dispensable. It does have some utility, however, since it allows us to talk in a general way about situations in which the justice of an outcome derives from the free exercise of entitlements, without commiting ourselves to any particular conception of what entitlements people have and without even assuming that there is a unique correct conception. For theorists like Rawls or Hume, who believe that systems of rights depend for their justification on the way in which the whole system of rights works together, it is natural to want a notion like pure PJ.

II

The idea of pure PJ is worth examining because of the possibility that it can be used to solve specific problems in moral or political philosophy. In this section I shall discuss the application of this idea, first, to the problem of justifying political democracy, and second, to two aspects of Rawls's theory of justice. In two of the three cases, I shall argue, the idea of pure PJ is helpful only if we adopt the strong interpretation which I rejected in Section I.

Pure PJ and Democracy

Some versions of a strong interpretation of pure PJ would explain cases of pure PJ by reference to some property of the procedures or processes that are said to yield just results. The acceptability of a game's outcome, for example, might be explained by reference to the fairness of its rules. A principle according to which procedures with certain properties yield just results immediately suggests ajustification for a variety of political or legal procedures. In particular, it suggests an argument both for the claim that democratically chosen policies ought to be accepted and for the claim that such procedures ought to be adopted in the first place: Suppose situations in which political decisions must be made are cases of pure PJ. Under that assumption, there are procedures for making the decisions such that, if the procedures are followed, the decisions are just whatever they are. If democratic procedures are procedures of the appropriate kind, we then have a reason for adopting such procedures. Moreover, if we do so, the resulting policies will be just.6

This argument for democracy is a good example of the potentially far-reaching consequences of some strong interpretations of the idea of

6. Norman Care has used the idea of pure PJ in defending participatory democracy in "Participation and Policy," Ethics 88 (1978): 316-37. He suggests that democratic decision making is an example of pure PJ, and he argues for greater participation on the ground, roughly, that participation is necessary if democratic procedures are to produce automatically just results (see esp. pp. 320 ff.). To carry out this project completely, of course, we would need a general account of the property, possession of which by a procedure renders the procedure's outcomes just. We would need a statement of the principle underlying the strong interpretation of pure PJ.




pure PJ. It also has a kind of appeal for the frustrated defender of democracy, since it provides a defense that does not rest on complex, hard-to-verify assumptions about the dynamics and likely consequences of democratic politics. Of course, a strong interpretation of pure PJ does not automatically yield a justification for democracy. Much will depend on just what the principle of pure PJ is and on the intrinsic features of democratic procedures. On the latter point, though, the theorist who offers this kind of argument for democracy does have at least some relevant research to fall back upon.7

If cases of pure PJ are to be explained, as I have argued, by reference to some system of entitlement rules, the leap from specific instances in which procedures or processes yield just results to a general justification for political or legal procedures seems much less plausible. Again, everything will depend on the form that justifiable rules of entitlement take. But, if we begin with the assumption that people have rights to various goods (whether the initial distribution is determined by historical factors or by a Rawlsian principle of distribution), and if we assume that they have, within limits, the right to exchange, risk, or retain these goods as they wish, there seems to be no direct argument for any particular political system. No matter how fair or otherwise desirable the system, if it redistributes goods or rights, and if people are not given the choice whether to "play the game," there is no basis in the idea of pure PJ for the conclusion that the outcome is just. Moreover, if the initial distribution does not correspond to legitimate entitlements, then even if people do voluntarily acquiesce in the procedure, the resulting redistribution (or lack of redistribution) may not be just. It would be as if people were freely gambling, but one of them was gambling with stolen money.

Pure PJ in Rawls's Theory

The notion of pure PJ figures in at least two parts of Rawls's theory of justice. Rawls sometimes suggests (pp. 120, 136) that the original position is a case of pure PJ, and at least one commentator has taken this suggestion seriously.8 Decision making in the original position is supposed to constitute a process of the kind whose outcome is correct, whatever it is. On this interpretation, there is supposed to be no independent criterion for a correct solution to the problem of choosing principles of justice, but it is assumed that the process of choice in the

7. A. K. Sen has shown that majority rule has a kind of intrinsic fairness (see Collective Choice and Social Welfare [San Francisco: Holden-Day, Inc., 1970], chap. 5*). A result like Sen's becomes relevant to the justification of democracy, I think, only if we assume something like the pure PJ defense and assume that the relevant property for a procedure is some kind of fairness.

8. See David Lyons, "The Nature and Soundness of the Contract and Coherence Arguments," in Reading Rawls, ed. Norman Daniels (New York: Basic Books, 1975), pp. 155 ff.




original position will lead to an acceptable solution. (This idea actually involves a slight alteration of the idea of pure PJ. In this case, the idea is not that some outcome isjust, whatever it is, since what is being chosen is the principles ofjustice. The idea here must be something like "given the nature of the process, the outcome is correct, whatever it is.")

Now, if we interpet the original position as a case of pure PJ, I believe it will provide us with a justification of Rawls's principles only if we accept something like what I have called the strong version of pure PJ. On my weak interpretation, it is true that compliance with a procedure sometimes gives rise to just outcomes, but only because such processes sometimes constitute legitimate means of transferring rights that the participants have. In terms of this weak conception of pure PJ, only those who actually participated in some choice process like the original position would be subject to the rules chosen therein (and then only if they had the right to acquiesce in such rules). On the strong conception of pure PJ, what makes the outcome just or correct is not that resulting entitlements derive from prior entitlements by legitimate transfers but rather that some kind of fairness or correctness embedded in the rules of the bargaining situation transfers itself to the outcome. It is this notion that seems to underlie the pure PJ interpretation of the original position, although, when we look at it that way, we are still left with the very thorny problem of trying to come up with a specification of the property of a procedure such that, when a procedure has that property, its outcome is consequently just or correct. Stated as a problem about pure PJ, this is just the familiar problem of explaining why we have any reason to accept principles chosen in the original position. In any case, if I am correct that we have reason to accept only the weak version of pure PJ, we cannot vindicate the argument from the original position by reference to this notion. (This does not mean, of course, that there is no other way to vindicate the argument.)

The notion of pure PJ also enters into Rawls's substantive theory of distribution. Rawls's principles of distributive justice are principles for institutions-for systems of rules-not for specific distributions among particular persons. What, then, does he require of particular persons in their dealings with one another? When is a distribution among them just? Rawls responds to questions like these by invoking the concept of pure PJ. The idea is that there is no independent criterion for a just distribution among specific individuals, but, given that the "basic structure" of laws and institutions is just, whatever results from its operation is just. By treating distributions among individuals in this way, Rawls avoids a serious problem that plagues other "patterned" or "end state" theories of distributive justice.9 Does Rawls's position here presuppose

9. See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), chap. 7, pp. 160-64, esp. 162n.




the strong version of pure PJ? The strong version is sufficient to give him the result he wants, provided that the sense in which the system as a whole is fair is the sense relevant to pure PJ. It is sufficient, that is, provided that the property specified in the principle underlying the strong version of pure PJ is possessed by any system that is just in the sense spelled out by Rawls's principles. However, Rawls, or a Rawlsian, could treat distributions as he does without invoking the strong version of pure PJ at all. He could say that the distributions resulting from the operation of a just basic structure are just simply because they result from the free and legitimate exercise of individuals' entitlements. They are just as a result of pure procedural justice in its weak version. Looking at matters in this way, what Rawls regards as the basic problem of distributive justice, namely, finding a criterion for ajust system of basic laws and institutions, could equally well be regarded as the problem of devis- ing a criterion for a justifiable system of entitlements.

An interesting consequence of looking at Rawls's theory in this way is that the disagreement between him and an entitlement theorist like Nozick is not a fundamental disagreement about the nature of justice. Both are "process" or "entitlement" theorists. Rawls begins at a more fundamental level by trying to offer an account of the conditions a system of entitlements must satisfy in order to be justifiable; and he concludes that a fairly large class of different systems of entitlement may satisfy these conditions. Moreover, it is clear that acceptable systems of entitlement on Rawls's theory will differ from systems Nozick would accept. In particular, Rawls would disagree about the extent to which individuals are free to dispose of their holdings simply as they wish. In Rawls's view, it is mandatory that some holdings, under some conditions, be redistributed from some persons to others. But that does not affect the fundamental point. If Nozick's theory is a theory of entitlements as side constraints, Rawls's theory is a constrained entitlement theory.



The Very Idea of Pure Procedural Justice

Documents

Transcript of The Very Idea of Pure Procedural Justice