Fair treatment is often identified with those procedures that generate relevant, unbiased, accurate, consistent, reliable, and valid information.
Rules or procedures must be consistently followed, and impartially applied.
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What Procedural Justice Is
The notion that fair procedures are the best guarantee for fair outcomes is a popular one. Procedural justice is concerned with making and implementing decisions according to fair processes. People feel affirmed if the procedures that are adopted treat them with respect and dignity, making it easier to accept even outcomes they do not like.[1]
But what makes procedures fair? First, there is an emphasis on consistency. Fair procedures should guarantee that like cases are treated alike. Any distinctions "should reflect genuine aspects of personal identity rather than extraneous features of the differentiating mechanism itself."[2]
Second, those carrying out the procedures must be impartial and neutral. Unbiased decision- makers must carry out the procedures to reach a fair and accurate conclusion. Those involved should believe that the intentions of third-party authorities are benevolent, that they want to treat people fairly and take the viewpoint and needs of interested parties into account.[3] If people trust the third party, they are more likely to view the decision-making process as fair.
Third, those directly affected by the decisions should have a voice and representation in the process. Having representation affirms the status of group members and inspires trust in the decision-making system. This is especially important for weaker parties whose voices often go unheard.
Finally, the processes that are implemented should be transparent. Decisions should be reached through open procedures, without secrecy or deception.
S.Y. Bowland talks about African American's lack of trust in the American justice system and its processes.
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Many believe that procedural justice is not enough. Reaching fair outcomes is far more important than implementing fair processes. Others maintain that insofar as fair procedures are likely to "translate" into fair outcomes, they are of central importance.[4]
The Many Realms of Procedural Justice
Fair procedures tend to inspire feelings of loyalty to one's group, legitimize the authority of leaders, and help to ensure voluntary compliance with the rules.[5] This is true in a variety of settings, from the work place, to political organizations, to legal contexts.
Issues of procedural justice thus arise in the making of many different types of decisions. For example, in the context of legal proceedings, procedural justice has to do with ensuring that a fair trial takes place. The application of law is supposed to ensure impartiality, consistency, and transparency. In order to ensure that retributive justice is served and that offenders receive fair punishments, judges, and juries must be unbiased and evenhanded in their sentencings.
In the realm of distributive justice, implementing fair procedures is a matter of setting down rules that everyone should follow in acquiring and transferring goods. Many believe that following certain rules of allocation will lead to the fairest distribution of wealth.
There is also an important relationship between justice-based principles and negotiation. Fair processes yield reliable information that can be used in the decision-making process. Participants must agree beforehand to the processes of dialogue or exchange that are being used, and be given an equal voice in any decisions that are made.
Fair rules of collaboration are central to successful mediation or negotiation processes, insofar as they are the best tools for reaching a decision acceptable to all parties.
Fair procedures of negotiation or legal proceedings are also central to the legitimacy of decisions reached. In those cases where parties feel forced to accept the results of a decision-making process they think was unfair, there may be a backlash effect.
The Importance of Fair Processes in an International Context
In any instance where nations come together to negotiate or make decisions about international policy, fair processes of collaboration are crucial. Fair procedures, ones that allow all parties to voice their interests, should be adopted in developing treaties, and other international agreements. Even the military must take care to follow standard procedures.
In those cases where standard military or arms-control procedures are not followed, a crisis situation may result. For example, nations who conduct military exercises without following agreed-upon notification procedures may escalate a conflict.
Even in war, there are standard procedures to be followed. Terror tactics, for example, do not qualify as a fair process of warfare. Innocent civilians cannot be military targets. The rules of jus in bello can thus be thought of as a special instance of procedural justice.
When fair procedures of warfare are not followed, and human-rights violations result, international tribunals often intervene to address these transgressions. Any war-crimes adjucation that takes place should, like legal proceedings at the local or national level, follow established procedural rules.
[1] Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution: Theory and Practice, ed. M. Deutsch and P.T. Coleman (San Francisco: Jossey-Bass Inc. Publishers, 2000), 45.
[2] Robert T. Buttram, Robert Folger, and B.H. Sheppard. "Equity, Equality and Need: Three Faces of Social Justice," in Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker and Morton Deutsch (San Francisco: Jossey-Bass Inc. Publishers, 1995), 272.
[3] Ibid., 273.
[4] William Nelson "The Very Idea of Pure Procedural Justice," Ethics, vol. 90, no. 4 (July 1980): 506.
[5] Tom R. Tyler and Maura A. Belliveau, "Tradeoffs in Justice Principles: Definitions of Fairness," in Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker and Morton Deutsch (San Francisco: Jossey-Bass Inc. Publishers, 1995), 297.
Use the following to cite this article:
Maiese, Michelle. "Procedural Justice." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: January 2004 <http://www.beyondintractability.org/essay/procedural_justice/>.
Sources of Additional, In-depth Information on this Topic
Additional Explanations of the Underlying Concepts:
Online (Web) Sources
Howieson, Jill. Perceptions of Procedural Justice and Legitimacy in Local Court Mediation.
Available at: http://www.murdoch.edu.au/elaw/issues/v9n2/howieson92.html.
The author discusses procedural justice and legitimacy in the context of a court mediation process, the pre-trial conference. A great deal of the promise of mediation centers on its processes being perceived as fair and the third-party actors being perceived as legitimate. She outlines the various components of procedural justice and legitimacy.
Barsoux, Jean-Louis and Jean Francois Manzoni. What Procedural Justice Theory Tells Managers. The Set-up-to-Fail Syndrome: How Good Managers Cause Great People to Fail.
Available at: http://www.set-up-to-fail.org/pdf/justice.pdf.
The authors suggest that perceptions of fairness in organizations are driven not only by outcomes, but also by the processes used to reach those outcomes. They then explore the components and consequences of fair procedures and argue that procedural justice has a direct impact on performance level.
Offline (Print) Sources
Morgan, William R. and Jack Sawyer. "Equality, Equity, and Procedual Justice in Social Exchange." Social Psychology Quarterly 42:1, 1979.
The authors examine the operation of equity and equality as separate procedural norms. Their findings suggest that exchange norms affect decisions about procedure, not just decisions about allocation. While equity-oriented strangers increase their competition in response to a perceived inequality, equality-oriented friends do not.
Buttram, Robert T., Robert Folger and Blair H. Sheppard. "Equity, Equality, and Need: The Three Faces of Social Justice." In Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch. Edited by Deutsch, Morton, Jeffrey Z. Rubin and Barbara Benedict Bunker, eds. San Francisco: Jossey-Bass Inc. Publishers, May 1995.
The authors suggest that the distributive justice principles of equity, equality, and need each advance distinct social goals. They examine these principles from the perspective of societies, individuals, and interpersonal relations, and argue that personal identity and interpersonal relations serve as the underpinnings of justice notions operating at the level of organizations or societies. Parallel foundations for procedural justice are discussed.
Deutsch, Morton. "Justice and Conflict." In The Handbook of Conflict Resolution: Theory and Practice. Edited by Coleman, Peter T. and Morton Deutsch, eds. San Francisco: Jossey-Bass, 2000.
This chapter examines justice and conflict. It looks at distributive, procedural, retributive and reparative justice, the sense and scope of justice, and the implications injustice has on the course of conflict.
Warfield, Wallace P. . "Public-Policy Conflict Resolution: The nexus between culture and process ." In Conflict Resolution Theory and Practice. Edited by Sandole, Dennis J.D. and Hugo van der Merwe, eds. Manchester, U.K.: Manchester University Press, 1993.
The author investigates the impact of organizational culture on public-policy disputes. He argues that differences in culture between policy-making organizations and stakeholder groups complicate policy conflicts and awareness of this cultural element is necessary for a more adequate understanding of policy conflict. Click here for more info.
Lind, E. Allan and Tom R. Tyler. The Social Psychology of Procedural Justice. Plenum Pub Corp, April 1988.
The authors suggest that in the workplace, procedural justice leads to higher job satisfaction and job performance. If employees view the procedures as fair, they are less resistant to outcomes. According to the authors, "voice" is the main component of procedural justice.
Nelson, William. "The Very Idea of Pure Procedural Justice." Ethics 90:4, July 1980.
The author examines John Rawls' notion of "pure procedural justice" and discusses the function and importance of fair procedures in the context of law. He theorizes that all cases of pure procedural justice can be understood in terms of the notion of entitlement and its free exercise in "permissible games."
Tyler, Tom R. and Maura A Belliveau. "Tradeoffs in Justice Principles: Definitions of Fairness." Conflict, Cooperation and Justice: Essays Inspired by the Work of Morton Deutsch , May 1995.
The authors discuss Morton Deutsch's suggestion that parties' goals shape the importance accorded to different principles of justice. Rather than a social justice model based on a single principle of justice, we need one that focuses on the relationship among different interaction goals and different principles of justice. The authors look at the relationship between equity and equality principles, and between distributive and procedural justice principles.
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Examples Illustrating this Topic:
Online (Web) Sources
Australian Law Reform Commission: Rethinking Family Law Proceedings.
Available at: Click here for more info.
The Commission has been asked to review the adversarial system of conducting civil, administrative review and family law proceedings before courts and tribunals exercising federal jurisdiction.
This paper focuses on issues and options for reform of family law proceedings, including alternative dispute resolution procedures. The various sections of this paper may be accessed by the links presented on the page reached through the above URL.
Lind, E. Allan and Lynn A. Maguire. "Public Participation in Environmental Decisions: Stakeholders, Authorities, and Procedural Justice." ,
Available at: http://www.law.duke.edu/news/papers/envinstpap.pdf.
This paper uses the framework of procedural justice to evaluate a case of environmental rule-making. The results suggest that government authorities engaged in decision making for which public support is needed must implement decision-processes that satisfy perceptions of fairness.
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