"Procedural Justice" Is Not Procedural Justice

By Professor Eric Miller

This post originally appeared on Prawsblawg. 

"Procedural justice" has recently become a big deal in the politics of policing. It was a core recommendation of the President's Task Force on 21st Century Policing; and has spawned a whole literature of its own, both in North America and in the United Kingdom. The basic idea is that certain ways in which speakers interact with targets during face-to-face encounters have an important psychological effect on the target of the encounter. The target feels that the speaker is justified in making demands upon the target, so that the target under an obligation to comply with the speaker's directives. Importantly, the target feels that way whether or not the speaker is, normatively, justified in making those demands; that is, whether or not an obligation to comply exists.

While "procedural justice" may be a useful tool in inducing compliance, it is distinct from actual, normative procedural justice. Justice is a normative concept, not a psychological one. And so a way of treating a target may be normatively unjust even if it fits the psychological theory of "procedural justice." Here's why.

Justice is a multifaceted concept. At the very least, it comes in different forms: distributive, corrective, and procedural. All concern whether some individual or group receive correct allocation of some good. [John Gardner, Law as a Leap of Faith: Essays on Law in General 242 (2012)] Distributive justice concerns the division of goods within a given group or society. (The amount of goods need not be limited, though in the case of material goods, it often is.) Corrective justice requires transferring some good between individuals or groups, so that what we give to one group, we take from the other (id.) Procedural justice requires that individuals or groups are able to participate, in the right way and to the proper extent, in some decision-making process.

Consider the example of a parent with three children. Distributive justice requires that she love all three and not withhold her love from any (without good reason). Since the ability to love someone is ideally not a limited good, there is no material obstacle to her loving each to the full amount they are due. However, because parents have limited amounts of time to invest in each each child, some children may get more time and attention on occasion than the others. Corrective justice requires that if the parent spends more time with one child on one occasion, she spends less time with that child, and proportionately more with the others, on a subsequent occasion. Finally, if the children want some good, such as watching a movie on Saturday night or getting a smartphone for their birthday, then they should participate in the decision in proportion to their standing in the decision-making process. Everyone may have standing to select the movie, and so justice requires equal participation in the process; however, when it comes to purchasing a smartphone, a four-year-old may have less standing than a sixteen year old or a forty-five-year-old. And the parent may have more or less standing depending on the age of the child.

The decision-making process is normatively procedurally unjust when someone is excluded from participating in the process in the right way or to the right amount. The four-year-old may have an equal claim to have her voice heard in selecting a movie, but no claim to have her voice heard in purchasing a smart phone. Nonetheless, even though the four-year-old may have no right to have her input into the smartphone decision taken, or taken seriously, she does have a right for the decision-makers to consider her interests in having a smartphone. They ought to respond to the reasons she has for and against the purchase.

It is clear that a practice that is normatively procedurally just could be distributively and correctively unjust. A completely fair procedure, one that allows someone to participate to the full amount in the right way, is nonetheless compatible with great distributive or corrective injustice. Certain people may be denied the right to own property based on their race or gender, but be able to participate fully participate in a process to determine their rights under a will, for example. Or a normatively procedurally just process may go wrong, misallocating resources either distributively or correctively.

"Procedural justice" however, is also, compatible with normative procedural injustice. The point of procedural justice is to induce some target to comply with the demands of a speaker by psychologically internalizing a feeling obligation to the speaker. The idea is to induce a psychological affect by using certain psychological techniques: encouraging the target to speak her concerns, appearing neutral, and articulating that the speaker shares the target's values and has her interests at heart. These features are, however, techniques: the speaker need not take on board the target's concerns or have her interests at heart, or in fact be neutral, or share her values. Furthermore, the amount and type of participation in the psychological technique of "procedural justice" is calibrated towards those quantities and qualities that will produce compliance. They need not track the quantities and qualities that produce the right normative amount and style of participation. For example, to ensure the "procedural justice" goal of compliance, the four-year-old may be given too much consideration in the smart-phone purchase to keep her happy and quiescent. And this may be bad for her in the long run: she may develop an over-inflated sense of self.

But there is a deeper way in which the psychological technique of "procedural justice" in its core aspects, procedurally unjust. "Procedural justice" is procedurally unjust when the target's participation is irrelevant to the speaker's decision-making. The whole point of normative procedural justice is to participate in the decision-making process in the right way: to have an effect on the outcome. But the goal of "procedural justice" is quite often the opposite: to ensure compliance with directives issued in conformity with decisions that have already been made. The civilian's participation is both limited (to voicing and agreeing), and misrepresented (because presented as part of the decision-making process rather than the decision-execution process).

Limited participation does not afford the target her due. But misrepresented participation lead the target on, and allows her to think that she made a difference when she did not. The process was not a normatively procedurally just one at all. It could not have been, because it was not about participating in the decision-making process. The target is, through the psychological process, placed in a subordinate position, and treated as a means to the speakers ends. Such treatment is, in fact, a disguised form of authoritarianism: one that entrenches a hierarchical structure in which the target's goals do not matter, and in which she is treated well so long as she internalizes the speaker's authority and acts upon her directives. The targets interests, concerns, and values need not touch the speaker. The speaker can remain remote from, even contemptuous of, the targets she gets to do her bidding.

One of the core problems with contemporary American policing is authoritarianism. Authoritarian policing encourages the police to remain aloof and remote from the people they police. Since the early days of police sociology, this feature of policing—the contempt that the police develop for the people with whom they interact on the street—has been a core feature of the police personality. These authoritarian emotions are particularly pronounced when the police work in poor and segregated neighborhoods. An urgent goal of contemporary reform of the police, it strikes me, is the need to transform this remote and contemptuous strain of policing. A technique of policing that encourages the police to reify this attitude, while thinking of themselves as kind and beneficent (because turning away from harassment or beatings or worse) appears to me a quite conservative "reform" of policing.