Volume 14, Issue 1

This issue contains six contributions for the Procedural Justic Workshop which is going on at the International Institute for the Sociology of Law at Oñati. The first contribution which follows gives a general introduction to the field.

The author discusses empirial research on subjective procedural justice in alternative dispute resolution in the U.S. He arrives at the conclusion that the disputants do not generally prefer alternative dispute resolution over formal adjudication or arbitration.

Using the example of the acceptance of U.S. Supreme Court decisions on abortion, Tyler discusses whether legitimacy influences the acceptance of morally controversial decisions, and whether procedural justice influences legitimacy. The legitimacy of the court explains more of the acceptance of decisions than personal views of morality or other factors. Legitimacy itself is determined by perceived procedural justice. For procedural justice, neutrality, trust, and respect for citizens’ rights are decisive.

Data about a participatory model of technology assessment are taken as an example in order to analyze the function and structure of this type of conflict resolution. The main argument is based on the concept of differentiation. From this point of view technology assessment procedures are being described as mechanisms of structural coupling between social subsystems. The following hypothesis states that procedural justice has to be conceived as a twofold analytical concept. On one side it is an essential part of the institutional nucleus of any conflict solving process. And as a consequence it should be taken into account when organization and program of the procedure are to be modelled. On the other side procedural justice is an aspect of different types of social semantics. From these semantics result a number of conflicting expectations regarding the justice of the technology assessment procedure. Empirical evidence showed that it was not possible to „proceduralize“ the integration of such antagonistic positions, i.e. to develop procedural rules for the production of Consensus on procedural justice. On the contrary, a solution could be found in asymmetric arrangements such as hierarchical relations on the material, social, and temporal dimension.

Two premises guide the understanding of the relation between distributive and procedural justice in the pertinent literature: first, that distributive and procedural justice are radically distinct concepts which cannot be reasonably related to one another, and second, that procedural justice is empirically and normatively prior to distributive justice. Both of these claims are challenged and relativized in this paper. It is argued that resorting to procedures in the event of disputes about substantive standards of just distribution is only seemingly a solution, because whatever procedure is chosen to resolve the conflict and to reach a decision, it will inevitably shape the way substantive questions are treated and hence have important implications for the quality and acceptability of the respective decisions. It is an error to believe that the procedural correctness of decisions suffices to achieve the requisite compliance. Therefore, procedures must themselves be devised in such a way that their outcomes are able to meet at least minimal standards of substantive adequacy. Against the background of this assumption, six acceptability criteria for procedures are suggested.

Niklas Luhmann’s book „Legitimation durch Verfahren“ („legitimation by procedure“) is of central interest for the evaluation of the performance of the social institution „procedure“. The book contributes a lot to the explanation of procedures. But Luhmann’s intention to show how the political system promotes self-legitimation without reference to contents fails. The critics of this book conveyed further insight into legitimacy, legitimation, and procedural justice.

German prosecutors increasingly not only dismiss cases on grounds of lack of evidence (principle of „legality“), but also use their discretional powers to divert cases from the Courts on grounds of little guilt of the defendant (principle of „opportunity“), thus assuming more and more the role of the judge. Our research, using data from 17 youth prosecutors’ offices in North Rhine-Westphalia, shows that both types of decisions follow different sets of rules. Decisions to dismiss cases are based on criteria such as denial of guilt on part of the defendant or lack of witnesses, while decisions to divert cases are more likely in cases of small damage, not more than one offence committed, or no prior record. However, in applying diversionary decisions, prosecutors also use „extra-legal“ criteria such as defendants’ nationality or unemployment. Further analyses reveal differences between the prosecutors’ offices with respect to the frequency of dismissals and diversionary decisions, all else being equal, as well as similarities between the decisions of single prosecutors and those of their colleagues within their own office. Thus, prosecutorial decisions are influenced by the organizational context. Both the use of „extra-legal“ criteria as well as the differences between prosecutors’ offices call for different and more just measures of de-criminalization.