The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of dispute resolution—in other words, a system of procedure. A theory of procedural justice is a theory about the fairness of the institutions that do the job of particularization.
A theory of procedural justice must answer to two problems. The easy problem of procedural justice is to produce accurate outcomes at a reasonable cost. Of course, what is easy in theory may be difficult in practice. A very high order of art and science may be required to design actual systems of civil adjudication that achieve accuracy at a reasonable cost while minimizing collateral violations of substantive rights. But the practical problems of procedural architecture should not obscure the obvious: procedural justice aims at accuracy and efficiency. In the abstract, these goals are shared by both the theorists and practitioners of procedural design.
The hard problem of procedural justice marks the point at which consensus about shared goals gives way to controversy. The hard problem of procedural justice goes deep. Procedural justice is necessarily imperfect, because perfect accuracy is unattainable and approaching the unattainable would be unjustifiably costly. The fact of irreducible procedural error is that even the best system of civil procedure that human ingenuity can design will make mistakes. This fact gives rise to the hard problem of procedural justice. How can litigants who will be finally bound by a mistaken judgment regard themselves as under an obligation to comply with the judgment? Framing the hard question of procedural justice suggests the key to the answer. The participatory legitimacy thesis makes clear what outcome reductionism obscures: because a right of participation must be afforded to those to be bound by judicial proceedings in order for those proceedings to serve as a legitimate source of authority, the value of participation cannot be reduced to a function of the effect of participation on outcomes; nor can the value of participation be reduced to a subjective preference or feeling of satisfaction.
Solving the hard problem of procedural justice clears the way to the formulation of principles of procedural justice. The Participation Principle requires that the arrangements for the resolution of civil disputes be structured to provide each interested party with a right to adequate participation. The Accuracy Principle requires that the arrangements for the resolution of civil disputes should be structured so as to maximize the chances of achieving the legally correct outcome in each proceeding. Together, the two principles provide guidance where guidance is needed, both for the architects of procedural design and reform and for judges who apply general procedural rules to particular cases.
Administrative Law | Constitutional Law | Dispute Resolution and Arbitration | Jurisprudence | Litigation
Date of this Version
Lawrence B. Solum, "Procedural Justice" (February 22, 2004). bepress Legal Series. bepress Legal Series.Working Paper 141.