Thinking and Feeling like an Ethical Person

Procedural Justice and Substantive Justice

This is a favorite game of the law professor: to bait an unsuspecting law student into explaining how a particular legal outcome is “just.” You should decline to attempt to defend that ground: the answer to the professor is that the legal outcome may well be unjust, at least in terms of substantive justice. Mere legal rules can never hope to achieve more than an approximation of substantive justice, and determining an outcome’s justice is not part of the legal profession. (It is the duty of each of us as citizens, but that is not the subject of this book.)

More importantly, in a liberal (democratic, rule-of-law-based) system that accepts a variety of visions of substantive justice, the actual law that is legislated can be seen as a compromise among these varying visions. In a liberal system, we each accept that individuals may have varying visions of substantive justice, but it is still valuable to be able to make laws even though they, by necessity, fulfill some individuals’ vision of substantive justice and deny others.

On the other hand, in a religious law system in which the religion purports to know the details of substantive justice, all the law needs to do is to follow the religious vision and it will comport with substantive justice. Law that does not accept the possibility of diversity of values is, by definition, illiberal.

Therefore, in liberal societies, law is understood to be separate from ethics and not necessarily congruent with justice.

Legal argument addresses the question of how we agreed earlier—in law or in contract—to address the problem that has now arisen. It addresses the question of how the law governs the matter at hand rather than how the law should have been formulated to do so. So, legal analysis is different from both public policy analysis and ethical analysis.

Some may observe that this focus on what was agreed, instead of what is right, is fundamentally unjust. However, in a liberal system, individuals have implicitly or explicitly agreed that no one has a clear and infallible vision of justice. There simply is no accepted Archimedean point from which to measure justice. Rather, individuals in a rule-of-law-based society have implicitly or explicitly agreed to accept the outcomes of the constitutional and legal process, because they have come to a belief that this system provides as well as possible a compromise among varying individual visions of justice.

This liberal perspective suggests that the procedural justice reflected in adherence to the system outweighs a particular vision of substantive justice. When U.S. Supreme Court nominees traditionally testify at their confirmation hearings that they will apply the law as written and will not engage in “judicial legislation,” they are pledging allegiance to these procedural justice values and foreswearing the application of their own vision of substantive justice.


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