This literature review aims to throw more light on the knowledge pertaining to the effects of race on the perceptions displayed in regard to the confidence and fairness in the state courts. The previous research available in this context has primarily focused on such perceptions in relation to the Supreme Court of the USA and very less has been said about the matter in regard to the state courts. A review of the information and data available will be examined to arrive at conclusions relating to the functioning of the state courts in this regard as also the extent of fairness and confidence they enjoy amongst the people, particularly amongst the Caucasians and Hispanics/Latinos. The literature review will first introduce the concept and the material that will be put before the reader in regard to the related issues. A detailed account will be given of how procedural justice is perceived amongst the public and what they expect from the procedures that are presently followed by the state courts. An important aspect to be examined will be the extent to which procedural justice is objective in implementing and adopting fair principles. An evaluation will be made of the extent of fair procedures which will be followed by an explanation of the definition of procedural justice in the context of the American justice system. The extent to which the public trusts the procedural justice system has an important bearing on the confidence levels that the system enjoys in fulfilling its role and duties towards citizens. Having observed all the shortcomings as also the strengths of the system, the paper will examine the relationship between procedural justice and interactional justice in meeting the objectives of the fair procedures as outlined by the existing system. Next, the various theories of procedural justice will be examined so as to give an idea of the different options available in carrying out fair procedures to meet the objectives of justice and judicial decisions. Before the paper can explain the different parameters in regard to the procedures, a detailed explanation will be given of the foundations of procedural justice over the years and how it has come to become an important means to resolve disputes and to enjoy the trust of citizens in addressing the adjudication of grievances and differences between individuals, families, corporations and other institutions. An important aspect that will be included in the paper to facilitate the understanding in the right context relates to the detailed scrutiny of the principles of procedural justice since everything has to be executed within their purview. Procedural justice in the context of the state courts will be examined so as to arrive at a conclusion about the extent to which the practices as used by them are perceived as fair amongst the public. Finally the role of procedural justice in the shaping of public support will be examined in the light of the prevailing practices amongst courts.
Procedural justice is indicative of the ideas of fairness used in the justice procedures for resolving disputes and in the allocation of resources for carrying out the procedures. It is primarily concerned with the discussions in legal proceedings and in administering justice. The concept of procedural justice is also used in contexts that are not entirely legal whereby processes are used in resolving conflicts where issues relating to the divisions of burdens and benefits may have to be resolved. Essentially, procedural justice is in the nature of concerning the transparency and fairness of the procedures which lead to appropriate decisions, unlike retributive justice and distributive justice, which relate to fairness and removal of wrong actions, and in the fairness of distribution rights respectively. A fair procedure necessarily requires that all parties must be heard before any decision is taken in the matter under consideration. There are some theories that suggest that fair procedures lead to outcomes that are equitable even though the conditions of corrective and distributive justice may not be complied with.
The ratification of decisions and policies is considered as the basis in bringing about the universal nature of principles of justice. The extent to which different procedures are used in making decisions that are considered to be fair are mostly related to the system of procedural justice. Research has suggested that the constituents of procedural justice are pertinent amongst all cultures and facets of justice in conceptualizing interactional and appeal mechanisms. Fair procedures are the best assurance for fair outcomes and procedural justice aims at implementing decisions in accordance with fair processes. People have a sense of affirmation if the adopted procedures are in the nature of treating them with dignity and respect, which makes the acceptance of outcomes easier even if they do not support them (Morton Deutsch 2000). Procedures become fair when there is strong element of consistency which is highlighted in the entire process and there is emphasis on the system operating in a way that all such cases will be treated in the same way. If there are any differences, they must replicate personal identities genuinely in all aspects instead of reflecting on the irrelevant aspects of the mechanisms that create differences (Robert T. Buttram 1995). It is very important that those involved in the carrying out of all procedures must exercise neutrality and impartiality. It is pertinent that procedures must be carried out by decision makers in an unbiased manner so that accurate and fair conclusions are arrived at. Such decision makers must give the impression that their intentions are to treat people in a fair manner and consider the opinions and viewpoints of all concerned parties in giving clear indication of their benevolence. If such third parties prove themselves to be trustworthy they will give an example of implementing fair procedures. It is also important that all who are directly impacted as a consequence of the decision must be given opportunity to represent and be heard in the process. The prevalence of such practices reaffirms the status of the members of the groups in addition to building trust in the decision taking authorities. This becomes all the more significant in cases where the concerned parties are weak whose pleas often do not get heard and is especially found to be widespread amongst the minority races such as Hispanics and Caucasians. All such processes have to be conducted transparently and there should be no deception or secrecy in reaching the decisions through open procedures. However it is widely believed that it is not enough to have procedural justice alone. It is more important to arrive at fair outcomes than the implementation of processes that are shown to have been conducted in a fair manner (William Nelson, 1980).
The existence of fair procedures has a tendency to bring about and encourage the feeling of loyalty within the group in question, legitimizes the authorities of leaders and helps considerably in regard to conducting the legal proceedings and in ensuring the voluntary compliance in accordance with the rules (Tom R. Tyler 1995). This is true in the legal context as also in matters relating to the work place and in regard to political contexts. Hence the question of procedural justice arises while making decisions in different circumstances. For example, during legal proceedings it has to be ensured that a fair trial takes place in the context of procedural justice and the appliance of law is aimed at ensuring that the process is impartial, consistent and transparent. It is essential that retributive justice is acted upon and the wrongdoers get proper punishment by the juries and judges who must adopt the practice of being even handed and without bias in their sentencing of such offenders. Distributive justice is the realm whereby fair procedures are implemented in setting rules to be followed by all in transferring and acquiring goods and services. It is widely believed that by following the allocation rules there will be fair wealth distribution. There is a strong relation between negotiations and justice based principles whereby fair procedures provide information that is reliable which is helpful in the process of making decisions. The parties involved have to be in agreement before the proceedings and be provided with just opportunities while making decisions during such processes. It is important to have rules of collaboration that are fair so that negotiation and mediation processes are successful as long as they are the best means for all parties to reach an amicable decision. It is central for legal proceedings and procedures of negotiations to result in decisions that are legitimate since there may be a backlash by the parties that may feel subsequent to such proceedings that the decision is being forced upon them.
Fair procedures of collaboration are very essential in instances when different countries collect to make decisions or to negotiate in regard to international policies. It is always better to adopt fair processes that permit all concerned parties to convey their interest on different perspectives in regard to the development of international agreements and treaties. It is equally important for the military to adopt and follow the given procedure in this regard. In cases where such arms control and standard military processes are not adopted, situations of crisis may develop leading to further complications. A typical example in this regard is the escalation of tensions between nations when predetermined agreements are not complied with by either of the parties in the conducting of military exercises. In war situations also there is a code of conduct whereby all standard procedures must be followed and it is in this regard that tactics of terror are not considered as fair procedures of war since innocent civilians are not to be made military targets. It is exactly in this context that the principle of “jus in bello”, meaning justice in war, provides guidelines in regard to conducting warfare on the basis of a moral code of conduct after the commencement of war. Hence the principle of “jus in bello” can be taken to mean a specific case in point for procedural justice. In adopting unfair practices of warfare there is always a strong backlash by way of charges against the offending party for violation of human rights, and such situations warrant the intervention of international tribunals to address the wrongdoings. All adjudication processes for war crimes are expected to follow the same established procedures and rules at all levels as in the case of procedural justice.
Definition of Procedural Justice
Procedural justice is defined as the ideas of fairness that are used in the justice procedures to resolve disputes and it is primarily concerned with the discussions in legal proceedings and in administration of fair justice. The procedure is in fact a connection to the processes of law and is defined differently in different countries. It is due process of law in USA, procedural fairness in Australia, procedure of fundamental justice in Canada and procedure of natural justice in some other jurisdictions of common law. The concept of procedural justice is also used in contexts that are not entirely legal whereby certain processes are used to resolve conflicts and in situations where issues relating to the divisions of burdens and benefits have to be resolved. Essentially, procedural justice is in the nature of concerning the transparency and fairness of the procedures which lead to appropriate decisions, unlike retributive justice and distributive justice, which relate to fairness and removal of wrong actions, and in the fairness of distribution rights respectively. A fair procedure necessarily requires that all parties must be heard before any decision is taken in the matter under consideration. There are some theories in this regard that suggest that fair procedures lead to outcomes that are equitable even though the conditions of corrective and distributive justice may not be complied with.
John Rawls (1999) has propagated three ideas relating to procedural justice. According to him “perfect procedural justice” is characterized by independent criterion in regard to the constituents of fair and just procedures in arriving at outcomes and in assuring the achievement of fair outcomes. “Imperfect procedural justice” relates to the first characteristic of “perfect procedural justice” in there being an independent criterion in regard to the constituents of fair and just procedures while arriving at outcomes, but he says that there is no method which will guarantee the achievement of fair outcomes. “Pure procedural justice” is in the nature of describing a situation whereby there is no specific criteria in regard to the constituents of just outcomes and that it is the procedure itself which can guarantee the fair outcome.
Public Trust and Procedural Justice
The fact that there has always been discontentment in regard to the administration of justice is evident from the fact that even a hundred years ago the famous Roscoe Pound had conveyed in his landmark address to the American Bar Association in 1906 “The Causes of Popular Dissatisfaction with the
Administration of Justice is as old as law” (Roger K Warren 2000). Unlike in the old days, we now have at our disposal several ways to express our opinion by way of refined research based on public opinion surveys that help a great deal in clarifying the reasons for popular discontentment in regard to procedural justice. The present public opinion in regard to the performance of the courts and the fairness with which they work can be gauged from the extent of public concern in the main areas that effect the embodiment of the fundamental values of the courts. There are key issues that impact the confidence of the public in the courts and there are several actions that need to be initiated at the national level to bring about remedies for the shortcomings and grievances. In this context it is vital to examine the relationships amongst procedural justice and public trust as also the implication of such relationships.
In a survey conducted by the National Center in 1999 it was found that people were fairly satisfied with the performance of the courts in that 79% agreed that judges were in general honest, 74% were of the opinion that most court officials were courteous and helpful and 85% were in agreement about the courts doing a good job in protecting the constitutional rights of the defendants. However the same survey also indicated clearly some areas in which there was lot of dissatisfaction in regard to the values and fundamental goals of the judicial systems. In America the Trial Court performance Standards have established basic standards to measure the levels of performance in regard to the courts of general jurisdiction trials and twenty two such standards are provided which fall into five basic areas relating to access to justice, timeliness and expeditiousness, integrity, fairness and equality, accountability and independence and public trust and confidence. Amongst these, the area of public trust and confidence is given lot of importance. In regard to access to justice over two-third of the people surveyed were of the opinion that it was very costly to initiate a case in the courts and 87% gave the indication that the high cost of lawyers was an important deterrent in coming to court for solving their grievances. Many respondents opined that the complex nature of the law and the slow pace of litigation contributed a great deal in dissuading them to approach the courts. 47% were feeling out of touch with the courts due to community based ignorant attitudes by them. Half of the respondents were of the opinion that the courts were not considerate in monitoring adequately the progress of the individual cases and that they are not decided upon within reasonable time. The people have, in all their responses, given an indication about the justice system being fair and equal. 80% respondents were of the belief that it is the wealthy who get better treated in courts and that the Hispanics and Afro Americans in particular are treated very badly. It is widely felt that the judges are much influenced by political pressure and a large number of them are believed to be having aspirations in raising funds for political campaigns. Hence it can be concluded that majority of Americans feel that the satisfaction they get from the courts system is not in keeping with their expectations nor does it fully meet its own goals and objectives. A noteworthy observation relates to the fact that most of the complaints in regard to getting unfair treatment came from the minorities comprising of Hispanics, Afro Americans and Caucasians. The minorities were not at all satisfied with the system of procedural justice since they indicated that adequate opportunities were not given to them in representation of their cases and in getting fair trials.
The main sources of public dissatisfaction are the perceptions that people have in regard to the resolution of court disputes in a fair manner, which ultimately ascertain the levels of trust in the public (Tom R. Tyler 2006). Although the public remains unhappy with the high costs entailed in seeking justice from courts, the main factor that dissuades from approaching them is the extent of fairness used by the courts that ultimately makes them lose trust in the system and prevents them from seeking justice. Such circumstances are more widely prevalent amongst the minorities in the country. Hence what matters more to the common man in regard to the court system is fairness in the procedures than the decisions and outcomes. It is imperative that measures be taken to improve public trust in the judicial system so that courts improve their image by sincerely addressing the issues of accountability, independence, integrity, equality, fairness, punctuality and access. Judicial officers need to be more unbiased and neutral and must pay due respect to the decision making procedure by participating meaningfully in the same and proving their trustworthiness in the eyes of the public, especially the minorities. Nevertheless it is the moral duty of judges to inculcate fundamental values and live up to them in giving a face to the identity for which they stand and in positively affecting the people with their decisions and procedures.
Procedural Justice, Interactional Justice
According to the procedural justice theory of Levanthal (1976, 1980) and Thibaut & Walker (1975) the perceived fairness in distributed outcomes must be ascertained by the processes of distribution of outcomes for people. Scholars of procedural justice have often narrated the importance of dissuading people from feeling discouraged and resentful in this regard. Even though people may receive low levels of evaluations from instances of such practices, but under a system that exhibits the accuracy of appraisals and fairness, there has always been a display of positive attitudes and favorable responses for the system. In the case of employees who express similar satisfaction, they have received better evaluations from their superiors and expressed the intention to stay within the organization they work for (Taylor, Tracy, Renard, Harrison, and Carroll, 1995). However it is said that the theory of structural procedural justice has not incorporated the different roles of the psychological aspect of procedural justice nor has there been any justification by decision makers by way of interpersonal communications amongst employees and managers. Beugre (1998) has said of organizational justice as “the perceived fairness of the exchanges taking place in an organization, be they social or economic, and involving the individual in his or her relations with superiors, subordinates, peers, and the organization as a social system”. The definition is clear in suggesting that an organization must have a relation with interpersonal communications and procedural justice theory which must lay much focus on the social components of interpersonal interactions. It is in this context that communications are put in the category of internactional justice theory. Essentially, interaction justice as explained by Folger & Cropanzano, (1998) relates to “aspects of interactions between outcome receivers and outcome givers and the procedures that do not involve formally imposed constraints on roles and behavior”. Interactional justice that incorporates interactive effectiveness has proved to be very significant in alleviating feelings of injustice which may have been the result of undesirable experiences of employees who may have lost their jobs or those who may be having fear of loosing jobs.
In interactional justice there are two separate groups of justice; informational justice that deals with communications such as explanations and justifications, while the other class is interpersonal justice which relates with social sensitivity and the exhibition of respect and sincerity. In effect, informational justice refers to interpersonal communication such as accounts and justification, importance of feed back and adequate notice period, which are all independent of each other and influence the perceptions of people in regard to procedural fairness. Accounts and justification are in the nature being used for reactive communications in changing the attitude towards perceived situations of inequity. This situation is reached only if there is unfair distribution of the outcome which proves to be useful to avoid feelings and attitudes of negativity such as resentment and dissatisfaction. Perceived inadequacies of justifying the causal accounts and the adequate notice periods are considered to be more important than the claims in explaining the reactions of people towards unfavorable outcomes. Interpersonal sensitivity which implies interpersonal justice is given importance in the theory of interactional justice since interpersonal communication is a behavior by decision takers and is associated with interpersonal treatments that may be fair or unfair. It is important to have attitudes that favor treating people with sincerity, respect and dignity so that there is effective communication in removing the feeling of perceived injustice amongst them. Regular courtship and communication can significantly lead towards high levels of predictability and understanding in creating knowledge based trust. If interpersonal communication expresses social sensitivity it can build trusting relationships between the parties. Hence it is clear that interpersonal communications can go a long way in functioning as procedural effects in leading to judgments that are fair as also in the communication of social sensitivity. So when people aim at forming judgments that are fair about the decisions, they will be motivated to consciously and unconsciously adopt communications which lead to social sensitivity. In view of the findings it is evident that the material available on the studies of organizational justice clearly indicates that interpersonal communications are effective in influencing the perception of people in regard to procedural justice.
Theories of Procedural Justice
The theories of procedural justice examine the process of decision making in exchange relationship where a party has the authority to make decisions in regard to issues that are related to another party. Theories deal with situations that are directly concerned with relationships between agent and principal whereby the principal authorizes the agent as the decision taking authority. Justice theory is in total contrast to the agency theory whereby the decision making process and its impact is examined on the basis of exchange relationships. The theory is specific in addressing the constituents of the procedures of fair decisions and the significance of procedural justice in relation to the exchange relationships. There are a lot of characteristics of formal aspects and procedures in regard to the conducts of the decision taker which are well known in contributing towards perception of procedural justice. An important procedural factor is considered to be voice which is the opportunity given in providing inputs in the decisions and controls in the context of the information that is used in making the decisions. It is also important for the different aspects of the information available with the decision maker to be shared which also includes the involvement of the other party’s inputs. Timely feed back has to be given in regard to the result emanating from the decisions as also in providing sufficient justifications for the decisions.
Theories and research have suggested that procedural justice is given lot of importance by people on account of two reasons. Firstly procedural justice ensures that the self interest of the individual is fully protected in the long term. The fair procedure and treatments give indication of the benevolence of the decision maker, his neutrality and honesty. The procedure is considered to be critical in board affiliations since board members are often known to have varied and conflicting interests. Research has proved that in cases where the individual is not satisfied or happy with the decisions conveyed to him, just procedures will in due course ensure that he or she will benefit from the exchange relationships. Secondly, procedural justice is considered to be central to individuals in view of the fact that it confirms their status and importance to the relationships, groups or organizations. However this viewpoint is based on the belief that the individuals derive their values and identities from membership of the groups. It is important for an individual to be treated with respect, dignity and fairness in maintaining his status within the groups. Hence the theory is indicative in suggesting that the personal relationships amongst board members will impact the flows of information and the style in which decisions are taken.
John Rawls (1999) has propagated three ideas relating to procedural justice. According to him “perfect procedural justice” is characterized by independent criterion in regard to the constituents of fair and just procedures in arriving at outcomes, and procedures that guarantee the achievement of fair outcomes. “Imperfect procedural justice” relates to the first characteristic of “perfect procedural justice” in there being an independent criterion in regard to the constituents of fair and just procedures in arriving at outcomes, but he insists that there is no method which will guarantee the achievement of fair outcomes. “Pure procedural justice” is in the nature of describing a situation whereby there are no specific criteria in regard to the constituents of just outcomes and that it is the procedure itself which can guarantee the fair outcome.
The theory of procedural justice is considered to be a little controversial in that there are a number of viewpoints about the constituents of a fair procedure. These different viewpoints can be categorized into three categories which are referred to as outcomes model, participation model and balancing model. The basic idea pertaining to the outcomes model relates to the belief that procedural justice depends on the fairness in the processes that influence the procedures in producing correct outcomes. For instance in the case of a criminal trial the ideal outcome would be that the guilty is convicted and innocent is exonerated. When the procedure relates to a legislative process, it would be fair as long as it results in good legislative practices and unfair if it results in bad legislation. This model has several limitations since two processes can produce the same outcomes and still they can be considered proper. But if there are other contradicting features about a single process that may render them fair and unjust at the same time, such as a situation whereby a dictator may be very benevolent but not be in favor of a democratic set up. The balancing model concerns the idea that fair procedures are those which reflect fair balances amongst the procedures and benefits that they produce. Hence the balancing model approaches the fairness in procedural justice so that there may be circumstances whereby erroneous decisions can be tolerated so as to avoid undesired cost as related to the direction of criminal processes. According to the participation model of procedural justice, a fair procedure is concerned with affording opportunities to the people for participation in the decision making process. For example, in the context of a trial, the participation model will entail that the defendants be given opportunities in presenting themselves during the trial, to give evidence and to involve in the cross examination of the witness.
What Procedural Justice Theory tells COURT ADMINISTRATION Managers
During a survey by the Administrative Office of the Courts (AOC) in 2005, residents of California gave a clear indication that procedural justice comprised of an important part of their perceptions in regard to the court systems. It is found from the survey that often litigants are not too much concerned about the important aspects of the court procedures that may be specifically related to the presentation of their cases. Hence the respondents reported to have had stressful feelings in not being very clear about the way they were to go about in handling their cases, hence the need for appropriate counseling was felt. In this context the Judicial Council had examined in detail the point of view of the public as also the extent of effective processing of cases, both small and big so as to get an idea of the status of efficiency in procedural justice. Hence it becomes important to examine the relationship between outcomes and the ratings of litigants in regard to performance of the court.
It is known that fairness perceptions are not just driven by the outcome of distributive justice but are also impacted by the fairness in regard to the procedures that are used to arrive at those outcomes of procedural justice. The theory of procedural justice conveys that individuals can discern decision results in the short term under different circumstances and that they make sacrifices willingly. Hence processes are perceived as being fair, and unfavorable outcomes are accepted by such people (Greenberg J, 1987). The distinction of this kind between distributive and procedural justice in not just theoretical in view of the fact that when court managers differentiate between fair and unfair performance evaluation, they deal differently with issues related to the process and those concerning the decisions (Greenberg J 1986). The concept of fair procedures gained ground due to the comparison amongst the different systems that reveal about individuals desiring to be treated fairly. If they are given some leverage into influencing the procedures and a say in the procedure, it certainly increases the perceived sense of fairness amongst them in regard to the system (Kanfer 1987). One qualification that is very interesting in this regard is the belief that if individuals are given the opportunity to give inputs, it does not necessarily guarantee that procedural fairness will be perceived. When managers are not responsive to inputs, unfairness can be perceived at a very high level even if the inputs had not been asked for at all. Since the inputs by litigants are not reflected in the final outcomes, the question arises as to how individuals will ascertain if their inputs were adequately considered. Going beyond the structural aspect of the procedure, the social perspective also has to be considered. Research has indicated that individuals attach lot of importance to the personal treatment they get from the managers in courts and the interpersonal techniques that are used in explaining the process to them. The foregoing clearly indicates that all fair processes must be consistent, unbiased, ethical, accurate, correctable, representative, justified and respectable. They must be reasonable to the extent that they are sincerely communicated in the true execution of interactional justice (Bies R J 1986).
The Foundations of Procedural Justice
The foundation of procedural justice lies in the preservation of the due process of law in meeting the ends of criminal proceedings by way of prohibiting forced self incrimination. Exclusion of evidence that is just hearsay and the procedures used in the conducting of search and seizure by necessary warrants are provided for by the Criminal Procedure of Law and the Constitution. All these aspects are indicative of the specific procedures that must be followed. Specifically, procedural justice is in the nature of offering fairness in judicial process for the resolution of civil disputes. The main idea behind the theory relates to procedural legitimacy that entails participation rights as an essential condition for the adjudicatory and legitimacy processes. The foundation of procedural justice lies in the provision that there be accuracy and the affording of reasonable rights of participation which are necessarily restricted and limited to practicability constraints. The procedure lays down general substantive norms to act as a guide in taking action and to be guided by the applicable legitimate authority. Procedural justice separates between procedure and substance in developing the action guiding roles and lays out the premises of general jurisprudence for carrying out the procedures. Procedural justice is much different from other forms of justice in that it is an accuracy model that assumes that the purpose of the civil procedures is to bring about a fair balance between the cost and benefit of the adjudication process. The procedure assumes that the aim of the resolution effort of the civil dispute is to use the proper applications of the law to the related facts. The very purpose of a correct outcome should me made understood as being a function of the procedures which guarantee equal and fair participation (Lawrence Solum, 2004).
A right of participation is justified on account of reasons which cannot be reduced neither to the effect on the accuracies of the decisions nor on the costs of adjudications. A strong and very pertinent quality of procedural justice is the condition that in all fairness of the procedures, all those who are bound by the decisions of the courts will have to be given the opportunities to take part in the proceedings. The Participation principle in procedural justice provides for the right of participation of the parties by way of receiving notice for opportunities to be heard in regard to the case and which must essentially be satisfied for the decision to be considered as being fair. The Accuracy principle is in the nature of specifying the achievements of outcomes that are legally correct as a criterion for the measurement of fairness of the procedure. In practice, the Participation Principle, Accuracy Principle and the problem of Aggregation are all applied in procedural justice in solving problems related to the present day civil procedures.
Views and Principles of Procedural Justice
The views and principles of procedural justice entail that certain basic prerequisites of justice are complied with in the meting out of fair judicial outcomes. An important viewpoint is the principle of fairness as a principle of procedural justice. To provide for a just and fair judicial system the basic tenets of independence have to be complied with. All people must have equal rights in the extensive schemes in getting basic liberties on an equal basis which should be compatible with social and economic inequalities in order that they are reasonably expected to give advantage to all concerned and that the attached positions and offices are open to all. Such liberties include political freedom implying the right to do voting and to hold public offices, which in itself guarantees and lays the ground for the freedom of speech and assemblies. The citizen is conferred the right to have an independent conscience and to have freedom of thought which also implies freedom from psychological oppression as also from dismemberment and physical assault. Every individual has the right to have personal properties and freedom from arbitrary seizure and arrest as provided for in the framework for the rule of law. Social and economic equalities imply fair distribution of income in addition to fair use by organizations of responsibility and authority. The systems are lexical in the sense that there can be no infringement of the basic liberties that have to be equal in regard to wealth, income and equality opportunities.
According to Rawls (1999) the principles of justice are a case of the conception of justice which provides that social values such as opportunities and liberty, wealth and income and the social perspectives of self respect must be distributed on an equal basis so that all such values are to the advantage of everybody. The general conception of justice is different from the special conception in that there is no trade off amongst different aspects of liberty. There are exceptions in the system if basic liberties are violated and prevented by social conditions which warrant a shift from natural liberty to liberal equality situations. According to Rawl (1999), in the imparting of justice, equality has to be ensured to everybody’s advantage so that it is open to all on the principles of equality of fair opportunities. The system of natural liberties is implemented on the strength of the principle of efficiency which has to be fulfilled if it is not possible to change the basic structure of systems that may be characterized by situations where some people may have expectations to improve the conditions by worsening the expectations of other people. Hence the principle of efficiency has to be altered with other principles since natural liberty has to be brought about in a background of formal equality of opportunities, implying that everybody has similar legal rights to justify the desired means. By implementing the system of natural liberty efficient distributions will result in being impacted by native talent and social starting points. An injustice is done by the system of natural liberty by indulging in distributive shares which adversely effects in bringing about a shift away from the moral perspective.
Liberal Equality has to ultimately give way to democratic equality since there is a stricter interpretation of the concept of “open to all”, in view of the fact that positions are open to all and that everybody has the equal right to claim charge of the same. Theoretically and practically, everybody with similar motivations and talents must be given the same opportunities of holding given positions without being impacted by the bifurcations that may result in the social class by way of birth in adversely affecting one’s prospects in life. Democratic equality is in the nature of combining equalities of fair opportunities with the different principle whereby the inequality in economic and social expectation results only if the downtrodden became worse off, provided they did not benefit from the advantages. Hence a scheme that is perfectly just implies conditions whereby the expectations of the downtrodden are maximized. Essentially the fair equality of opportunity is more important than the difference principle because perfect procedural justice is possible when there are independent criteria for just outcomes and there are well defined procedures guaranteed to achieve the outcomes. There is imperfect procedural justice when there may be independent criteria for just outcomes but there is no procedure that guarantees the same.
Procedural Justice and the Courts
Judiciary is of prime importance since getting justice is an important element of law enforcement so that there is promotion of law and order, freedom and fairness. Judiciary is considered to be fully independent of other areas of power and the constitution assures independence of the courts as also the responsibility of the courts to protect freedom and human rights in keeping with its role of giving priority to judicial remedies for protection of civil and human rights and freedom for citizens. The courts act in their responsibility by regulating the application and contents of the law, activities of judiciary, legislative and self governance authorities with the primary objective of ensuring justice for all who seek the same. The authority of the judiciary in protecting the human rights and in ensuring the rule of law is provided for in the federal laws by legislation (Tom R. Tyler 2003). It is a prerequisite for the harmonious development of a country’s citizens that there is guarantee of fair trial and as a philosophical requirement; justice implies that decisions are made correctly and in keeping with the interests of the people. This in itself is the common sense approach that requires the prevention of anything destructive happening to the public and individuals. The courts work strictly under the provisions of the Civil Code, Criminal Code, Code of Criminal procedure and Code of Civil Procedure and other legislative provisions. The constitution and the laws based on its provisions, provide for judicial remedies that are applicable to all administrative, civil and criminal proceedings so as to guarantee freedom and human rights.
The Supreme Court is constantly working towards reviewing the working of the courts so that the following are guaranteed:
- the right to have the case examined by the court to which it is cognizable;
- the right to judicial remedy;
- the right to professional legal assistance;
- the right not to testify against oneself and one’s family;
- the ban to use wrongfully collected evidence;
- the provision to interpret irremovable contradictions in favor of the defendant;
- presumption of innocence;
- the right to have the sentence reviewed by the higher judicial authorities
The Code of Criminal Procedure provides for the fair trials within reasonable time by unbiased and independent courts of law which use the guidelines of respecting family and private life and the right of individual inviolability. The law provides for each arrested individual to be promptly produced before the court of law which takes decision in regard to his detention or release depending upon the circumstances of the case. The principles of justice are incorporated in the Criminal Code of the country and justice has to be maintained as a legal category by the legislators while introducing differentiation in criminal responsibilities and while punishment is being awarded. The Civil Code lays down the criteria of reason and fair practices to be followed by courts and efficiency of justice is to be maintained as a prerequisite for the society to develop in harmony. Courts provide justice by guaranteeing judicial remedies to everybody along with the right to challenge the decisions of different departmental adjudication authorities. The judiciary is vested with the authority in controlling the legal content of law and the legal acts (Lebedev M, 2008). A court is bound to deliver justice as per statutory procedures so that the case is resolved in a transparent way which is clear to all in every respect.
The Role of Procedural Justice and Legitimacy in Shaping Public Support
Different surveys over the past several years have revealed that Americans have low levels of confidence in the effectiveness of the justice system and is more acute in the case of minorities such as Hispanics, Afro Americans and Caucasians. Lack of confidence and the racial breaches in the law and legal actors as perceived by people have existed for several decades irrespective of whether the crime levels are increasing or decreasing. Often people think that why must everybody be considered about the aspect of law which does not affect everyone at the same time as much as other issues such as national integrity and economic development. Most people have little concern with the justice system and very few amongst us have been victims of judicial discrimination (The Kerner Report, 1988). Even though voices are raised in regard to the judicial processes, most people ignore the same since America is considered to be a society where law and order is fairly well maintained and the negativities in this regard are not taken seriously. But still there are important issues to be addressed in regard to persistent popular discontentment about the law and order situation in the country. Public dissatisfaction is broadly divided in scope and is largely shared amongst people in all walks of life. Americans are constantly dissatisfied with the low efficiency of the justice system in being a public service and extremely discontented with the practice of legal bodies in retribution of legal offenders; they condemn crime and most are concerned morally about the large extent of racial disparities in the handling of justice matters (Franklin 1995).
Basically the crisis in regard to the legitimacy of the justice system relates to different functions that should bring about legitimacy in the procedures. There are concerns in regard to fairness of procedures and respectful treatments that recognize the rights of citizens and treats the public with dignity. There are problems in regard to the perception of distributive justice as also consistency and proportionality of the responses and behaviors that are condemnable (Kate Stith 1998). People also have doubts in regard to the protection of citizens from the wrongdoings from inefficiencies due to inactiveness of the criminal legal institutions. Normatively and descriptively, along with the political pressures that are engendered with criminal activities, there is a high incidence of such activities being heavily influenced by racial divides which further result in the reduction in people’s trust in the law system. Rising incidents in the rates of incarceration have greatly increased the problems in relation to the redistributive public resources systems. Victims of crime are increasingly becoming frustrated due to tensions amongst the perceived erosion of personal safety and due process rights (Austin Sarat 1977).
There is need for efforts to be built in regard to shaping the reaction of people towards the courts, police and the law. The findings of the results in regard to the psychology of the reactions of social regulatory activities need to be considered in incorporating the perspectives on the different law institutions to find appropriate solutions.
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