It appears uncontroversial that having proper legal procedures is integral to the legitimacy of any judicial system and that the nature of these procedures matters greatly from a moral perspective. This is particularly true in high-stakes scenarios like criminal trials. Here, procedures that ensure defendants have adequate legal representation, a chance to be heard fairly, and an opportunity to appeal their sentence seem essential for the fairness of our legal institutions. However, spelling out why such procedures matter morally is more complex than it looks.
In recent years, there has been a growing focus in the literature on Procedural Justice (PJ) to attempt to provide a satisfying answer to that question. Central to their assessment is whether legal procedures are only morally valuable as a means to an end—plausibly, a correct verdict—or if they also promote some independent value. Instrumentalists about PJ, such as Ronald Dworkin, argue the former, while non-instrumentalists like Denise Meyerson advocate the latter.
Consider Dworkin’s perspective. He champions the idea that judicial procedures are valuable insofar as they allow to reduce the potential for legal errors. According to him, having proper legal procedures in criminal trials is valuable because innocent defendants found guilty suffer a specific kind of objective moral wrong. Indeed, not only are they often deprived of their freedom, but they are also harmed by the objective injustice that their sentence carries. Since we have a moral duty to avoid inflicting such objective harm, he argues that robust procedures should be implemented even when they come at a significant social cost in terms of time and social resources. Although Dworkin doesn’t hold that protecting these rights is an absolute imperative that overrides all other concerns, he insists that the resulting risk of judicial error needs to be fairly distributed. This means that legal procedures can be imperfect in preventing legal errors, but that they shouldn’t make some individuals more susceptible than others to be wronged by these errors.
At first glance, Dworkin’s instrumentalist views seem sound. Yet, Meyerson argues that instrumentalists struggle to explain some of our intuitions. Indeed, most of us seem to care for procedures even when the outcome of the legal decision appears obvious. For instance, it is easy to imagine cases where the defendant’s participation couldn’t plausibly make a difference because of how transparent the available evidence is. In such cases, it still seems morally objectionable to deliver a legal verdict without allowing the defendant to participate properly.
Of course, this isn’t a knockdown argument against instrumentalists. They can still provide indirect justifications for keeping procedures in such fringe cases, appealing to how hard it is to empirically assess which case should or shouldn’t incorporate proper judicial procedures. Alternatively, they might suggest that our moral intuitions in these fringe cases are less reliable because they are clouded by our general commitment to achieving accurate verdicts in regular cases. For non-instrumentalists’ arguments to be persuasive, they must articulate a compelling reason why proper procedures are morally valuable, beyond their role in reaching correct verdicts.
Although there are multiple non-instrumentalist views, a relatively new and promising one is the relational theory of PJ. One particularity of this approach is that relationalists are drawing on psychological research about how individuals perceive the fairness of legal procedures. A key finding that stems from this empirical body of research spearheaded by Tom Tyler is that people who go through a criminal trial not only value getting a favorable decision regarding their case but also give much importance to the perceived fairness of the procedure. Whether or not the verdict was in their favor, legal procedures that were perceived to be unfair by defendants had a measurable negative impact on their ability for self-respect.
Relationalists take these robust empirical results to support the view that humans’ ability for self-respect is partly tied to the respect that is extended to them by their community: a relational form of respect. They contend that court cases, and especially criminal trials, are taken by defendants to reflect a judgment from society. Thus, when they perceive the procedures in such cases to be unfair, they see themselves being denied the relational respect that would confirm their rightful status as members of that society, a form of respect that is crucial for defendants to conceive of themselves as worthy of respect.
While the strong connection between the relational theory of PJ and empirical science is a virtue, it can also make it harder to assess how it should guide the actions of those wielding judicial authority. Since psychological research assesses individuals’ perception of fairness, we might question whether this focus on perception truly captures the essence of fairness. In other words, why should society have an obligation to foster perceived fairness as opposed to actual fair procedures?
One response is that society ought to care about perceived fairness because it has a general duty to promote the ability for self-respect among its constituents. On broadly Rawlsian lines, Meyerson argues that the capacity for self-respect is essential to carrying our life plans, no matter what these plans are, and that this is something that liberal societies should take to be valuable. If perceived fair procedures—independently of the legal outcomes—promote something so crucial, then a liberal society might have strong intersubjective reasons to promote the social bases for self-respect through its legal institutions. Another response is that perceived unfairness of judicial procedures has been shown to make defendants more likely to view the legal system as illegitimate. This, in turn, undermines their future compliance with the law.
Still, we might worry that these only are arguments for the value of having procedures that seem fair, not for having procedures that are actually fair. As proponents of a prescriptive theory regarding legal procedures, relationalists obviously also care about the actual fairness of procedures. However, we might question whether their view provides the right tools to argue for the value of actual fairness when there is a gap between the two. Of course, if defendants’ perceptions of fairness always aligned perfectly with actual fairness, there would be no issue. However, research by Daniel Nagin and Cody Telep raises concerns about a possible discrepancy between the two. Their studies suggest that current evidence doesn’t strongly support a direct link between the fairness of judicial procedures as executed by authorities and how defendants perceive this fairness, although recent reviews of data by the same researchers provide some hope of establishing this link.
However, even if relationalists can’t prove a direct link between actual fair procedures and perceived fairness, this might not significantly weaken their argument. Indeed, as Natalie Stoljar rightly points out, a shared perception within a marginalized group that they are the target of unfair procedures should still count as good (albeit defeasible) evidence that they actually are. For example, in the United States, the widespread perception among Black individuals that they are subject to unfair judicial procedures is corroborated by studies. These studies reveal that Black people are disproportionately stopped by police, detained pretrial, and charged with more serious crimes than white individuals.
This isn’t to say that all cases of a widespread perception of unfairness within a group are signs of actual unfairness. For example, there is a widespread belief among some Alt-Right groups that people charged in connection with the January 6 attack on the Capitol have been the target of unfair judicial treatment. A common claim within such groups is that the January 6 rioters have been prosecuted at a higher rate and subjected to harsher sentences than those who were arrested in the demonstrations following George Floyd’s death. Nevertheless, an analysis of court records shows no trace of such disparity, which means that their perception of unfairness is likely not tied to actual unfairness.
That being said, the possibility of a false, widespread perception of unfairness within a group is consistent with Stoljar’s point. After all, such a perception should be considered as defeasible evidence in favor of the existence of actual unfairness, which needs to be balanced against other available evidence. However, I believe that relationalists could offer at least two principled arguments as to why widespread perception of unfairness within marginalized groups might constitute stronger prima facie evidence in favor of there being actual unfairness than when this perception comes from more privileged groups.
First, marginalized people often experience discrimination over a wide range of topics, from employment opportunities to access to housing or education. Unfortunately, their being also subjected to unfair legal procedures appears consistent with this broader pattern of discrimination. Second, Standpoint theorists like José Medina have argued that marginalized groups can have a more objective perspective on social inequalities and injustices. Their experiences, often overlooked by dominant groups, can reveal aspects of society that remain unseen from a position of privilege. This suggests that their perceptions of unfairness might be more reflective of actual social realities. In the end, settling whether there is a connection between perceived unfairness and actual unfairness requires a careful case-by-case analysis. Nevertheless, in cases where there is a shared perception within a marginalized group that they are being subjected to unfair legal procedures, I believe that the onus to prove that this perception is unfounded lies with those who challenge it. Moreover, while the relationalists’ reliance on perceived unfairness might appear problematic, we must also remind ourselves that it is often hard to assess whether someone has been the target of disrespectful procedures without relying on their perception.
If this is right, the methodology employed by relationalists, which emphasizes the importance of perceived unfairness, might be particularly effective in tracking actual unfairness within the most vulnerable segments of society. By focusing on the perceptions of fairness within these communities, relationalists can effectively highlight systemic issues that might otherwise be overlooked. This approach not only validates the experiences of marginalized individuals but also provides a crucial lens for identifying and addressing ingrained biases within the legal system. Such an emphasis on perception, therefore, is not just about acknowledging feelings of injustice; it’s about uncovering and confronting the realities of systemic inequality. Furthermore, it seems very unlikely that an instrumentalist approach such as Dworkin’s that cares about procedures only insofar as they secure the right final legal decisions would be able to give adequate weight to these important moral considerations.
Finally, it’s important to emphasize that the discussion surrounding the value of judicial procedures is not only of theoretical interest but also has significant practical implications. Indeed, taking seriously the relationalist claim that perceived fairness of procedures is valuable should affect the kind of legal procedures that we deem legitimate. For instance, the adoption of procedures that could lead to more accurate verdicts would not only be constrained by fairness considerations but also by how defendants would likely perceive them. For example, implementing artificial intelligence systems as predictive tools to help judges make some decisions might face an uphill battle because of the prevalent distrust of such technologies when it comes to making justice decisions. Thus, even when AI systems show promising results regarding the accuracy of some verdicts, and even when they don’t make procedures more unfair, reasons for using these systems must be weighed against the subjective impact they have on defendants’ perception of fairness.
Alexis Morin-Martel
Alexis is a PhD candidate in philosophy at McGill University. He primarily works on issues in social epistemology, ethics of technology, and metaethics. His doctoral thesis comprises a series of papers centered on trust in public institutions and experts in the context of new emerging technologies.
