Procedural Justice: The Principle of Non-Discrimination

When discussing institutions Opens in new window such as the law, one may ask what content the institutions should have to ensure that the actions of individuals and governments are considered just.

Justice means that equal circumstances are treated equally by individuals and authorities and that restraints are placed on all in equal measure (and not according to personal standing or belonging to a particular).

In practical terms, Justice is that kings and beggars are subject to the same laws (a key aspect of the rule of law)—a concept that is far from universal and that is in practice widely violated around the world.

This is the concept of procedural (or formal) justice, which underlies the principle of equality before the law. It has to be distinguished from social justice Opens in new window, which is oriented towards the equality of outcomes of human endeavor (endeavour) irrespective of starting position, luck, and effort.

At least in the Judeo-Christian social tradition Opens in new window, which is based on the notion of the equality of individuals before God, justice in the procedural sense is tied to the concept of equality before the law.

Equity closely relates to justice, namely that all should have access to similar opportunities. It too, has to be distinguished from the equality of outcomes.

Some religions explicitly advocate inequality and the tolerance of it.

Procedural justice requires the guarantee of equal basic rights irrespective of gender, race, religion, wealth or connections.

It always relates to negative liberties, freedoms from unnecessary and unequal restraints—and not to positive liberties.

In economic life, justice in this sense means that all have, in principle, the same liberties to compete with their diverse sets and be treated as equals. It does not mean equal good luck or equal outcomes from that competition.

When discrimination is proscribed and individuals are not allowed the use of force, then people are compelled to rely on voluntary cooperation with others through contracts.

The aim of the (private) law is to ensure that all citizens enjoy equal opportunities to act out of their own free will without unnecessary legal constraints.

This is procedural justice. It is the only form of justice, which the state can guarantee — equal outcomes can, in any event, never be guaranteed since chance has a hand in a determining most outcomes and since different people have different levels of talent and commitment to achieve.

In this context, it is also important to recognize that high achievers enhance the life opportunities for less talented and less committed fellow citizens.

Pulling high achievers down thus may well have the unforeseen side effect that the less eager and fortunate also lose out (Sowell, 1990).

One of the major justifications for the existence of government is to ensure that all citizens are protected from coercion by powerful individuals and groups.

Where human interactions are determined by the violence potential of thuggish people or groups, ordinary people experience injustice.

Most communities therefore accept the exercise of collective force by certain officials (the violence professionals, such as police officers, judges and jailers) as legitimate, because experience has shown that the exercise of individual power by violent means lead to injustices and a brutish state of society — as British philosopher Thomas Hobbes (1588 – 1679) put it. Indeed, to prevent abuses of power is a central concern of collective action.

Justice may be measured by one of the following standards:
  1. Justice of individual behavior—namely that individuals and authorities should treat others equally in equal circumstances (no discrimination; procedural justice; de Jasay, 2002); or
  2. Justice as a social norm — namely that social positions and outcomes of interaction should be equal (social justice or equality of outcomes, which is at the basis of the welfare state).

Like positive freedom (claims), social justice Opens in new window is at loggerheads with the attainment of freedom Opens in new window and prosperity Opens in new window.