12. Forms of Justice: Procedural vs Substantive Theory of Justice

An allocation of rewards and punishment may be based on two principles of justice, i.e. ‘procedural conception of justice’ and ‘substantive conception of justice’. A conception of procedural justice will argue that principle of allocation of rewards and punishment in a society should be founded upon ‘fair procedure’. It further argues that ‘if procedures are fair, then whatever outcomes which emerge through the procedures will be acceptable to all. Proceduralists concerns with fairness and transparency of the processes through which allocation of rewards and punishment is sought. For example, in Indian legal system following procedural justice may imply to adopt ‘due process of law’. John Rawls distinguishes procedural justice into three forms- ‘perfect procedure’, ‘imperfect procedure’ and ‘pure procedure’. (Rawls, 2000: 85-86) Perfect procedural justice has two important criteria. First there is an independent criterion for what is a fair outcome prior to procedure. Second, procedures can also guarantee fair outcome. Let us discussion how a cake can fairly be divided amongst a group of individuals. One person can cut the cake and get the last piece. It may assume the division is fair and receives an equal share to all. Unlike, perfect procedure, imperfect procedures cannot guarantee just outcome even after following fair procedures. In criminal justice, we desire to punish only guilty persons. For the purpose, we follow procedures to establish the truth but such procedures often fail to deliver the truth. Hence, innocent persons are sometimes punished while guilty persons are set free. Procedures do not guarantee fair outcome. On the other hand, pure procedural principle argues that there cannot be any criteria for what constitutes a just outcome other than the procedure itself. For example, in gambling, everybody in the bait has an equal chance to win however their baiting cannot ensure a desire outcome. (Rawls, 2000: 85-86.) In other words, proceduralist would argue that whatever outcomes which are arrived at after following procedural norms of distribution will be acceptable to all and therefore will best serve the interests of society. On the contrary, substantive notion of justice gives due weight to the outcome. If outcomes are right, then whatever procedures which are adopted to maximise the probability of augmenting just outcome will be acceptable. Procedural and substantive principle of justice is not exclusionary to each other. At times they are complementary to each other. Rawls’ A Theory of Justice (1971) is a good case to discuss in this regard. Though Rawls’ theory of justice theory is procedural, it also contains thick notions of substantive justice. In the following section, we will discuss Rawls’ A Theory of Justice briefly.