Procedural Justice: Philosophical Perspectives

Types of Procedures

Among the first questions to be answered in the attempt to find a just outcome to some conflict is which of the available procedures ought to be employed. Even a cursory glance at the history of human conflict reveals a remarkable range of possible procedures by which matters of justice may be settled. This range runs from combat (in which the disputing parties fight for the winnings—justice belongs to the winner of the fight) to chance (in which parties agree to allow luck to determine the outcome—justice follows the flip of a coin). Between these lie a variety of possible procedures that are more morally justifiable because they draw on supporting values, such as equality, merit, or fairness, rather than relying on luck or violence.

A common procedure by which justice may be obtained is bargaining. Bargaining covers those situations in which one of the parties in the conflict offers the other some benefit in exchange for completing some action. The particular benefit offered may be an advantage that the other party seeks or the removal of some threat that the other party dreads. Bargaining is the procedure of choice for most of us when we seek commodities and services or when we contract for employment. In such cases, the offer of advantage comes in the form of an offer to pay a selling price or an offer of salary. Bargaining is also used to settle economic and social conflicts, such as when workers strike for better compensation or when social groups protest for the reformation of discriminatory laws. The threat of strike or of protest represents the disadvantage to be removed at the successful completion of the bargaining process.

An alternative to bargaining is what is often referred to as a “discussion on merit.” This procedure is devoid of threats or inducements from or against any party and involves the parties' willingness to deliberate the merits of each other's position. This procedure is noted for its tendency to allow parties to modify their positions in response to the merits of the other's argument. Ideally, even when no party gets all that it wanted or was entitled to, the outcome is such that all parties are satisfied. This last feature is important, since the [Page 1683]conflicting parties could use force, coercion, or threats to ensure that the outcome would be closer to their position in the dispute, but they opt not to employ such methods. Discussion on the merits emphasizes rational, reflective discussion by all parties on the respective merit of each position. In this procedure, each party asks itself, “What is the best outcome, even if that outcome is not maximally to my benefit?”

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