Just a Thought?: Instantiations and Constructions of Procedural Justice

• Author: Mary R. Rose
• Pages: 85-101

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

Our beliefs about how fairly we have been treated – by legal authorities and by the

practices of legal institutions – affect our support for authorities and institutions,

such as the police or courts. More significantly, in some circumstances, these beliefs

shape how we act and whether we obey the law. These are the core insights of the

literature on procedural justice, and their simple gist – fair processes are psycholog-

ically important to individuals – masks a voluminous literature examining the why’s

and when’s of these assertions. A 2013 search in the database Psycinfo asking for all

journal articles and books with “procedural justice” in the abstract produced over

1,350 results. This owes, in large part, to the significant presence procedural justice

enjoys in the non‐legal, organizational psychology literature, but a procedural jus-

tice account of perceptions of legal actors and institutions remains part and parcel of

how social psychologists think about attitudes toward the law and legal compliance

(see MacCoun 2005).

Remarkably, despite so much research, it can be hard to state in exact terms what

factors produce a sense of procedural fairness. In general terms, it is understood that

fair procedures involve a sense that authorities offer polite and respectful treatment,

evenhandedness, and ethical behavior (see Tyler 1990). The original procedural jus-

tice research suggested that procedural justice was the same as an opportunity to

express one’s views about a dispute (Thibaut and Walker 1975). Tyler himself has

suggested that the specifics of procedural justice deserve more development, with

his own research producing somewhat different answers as to what specific mea-

sures researchers should use to observe the important facets of procedural fairness

(cf. Blader and Tyler 2003; Tyler 1990).

Just a Thought?

Instantiations and Constructions of

Procedural Justice

Mary R. Rose

6

86 Mary R. Rose

My task in this chapter is to take a fresh look at the meaning and impact of

procedural justice, and I do so by looking at the various ways that researchers have

defined this idea. I focus on the middle step between an abstract construct (the idea

of “procedural justice”) and the development of some exact measure to observe it

(e.g., a 7‐item scale versus a 3‐item scale). This middle step is what researchers call

the “operational definition” or just “operationalization” of the abstract construct.

Both in terms of procedural justice and in terms of the things procedural justice

predicts, researchers have operationally defined constructs both as “cognitions” –

what people say they are thinking – and as “behaviors,” either what is done to people

or what people do. This chapter looks at research published (mostly) in the last

decade or so, and focusing (mostly) on socio‐legal work identified in a (somewhat

more manageable) search of Sociological Abstracts. I first show how ef fects are

remarkably stable across different instantiations of both procedural justice and the

things it predicts. I next suggest that the literature remains “cognitive‐heavy,” with

the most support existing for the notion that people’s cognitive construction of

fairness affects their cognitive beliefs about other things. I point out that although it

is valuable to document such psychological effects, there are several limitations to

this focus.

A Brief History of the Meanings of Procedural Justice

Work in procedural justice began in earnest with the 1975 monograph, Procedural

Justice: A Psychological Analysis, co‐authored by social psychologist John Thibaut

and law professor Laurens Walker. The volume reported on a series of experiments

investigating people’s perceptions of, and reactions to, different procedures used to

settle disputes. To t ake a simple example, the authors gave participants a scenario

about a non‐legal conflict (choices among designs for an advertising competition)

and provided different options for how to make the choice. Thibaut and Walker

experimentally varied (1) time urgency (present/absent), (2) a conflict of interest

with the other party (they were or were not in competition for money), and (3) the

availability (or not) of a standard for making decisions (i.e., half were given

information about how decisions have been made before). One outcome of interest

was how much control participants wanted in decision making, ranging from auto-

cratic third‐party decision making (a party turns over facts to a decision maker

without comment; the decision maker decides) to more traditional trial/arbitration

models (argue one’s case; a third party decides), to total party‐control via bargaining

(the two parties present proposals for a solution to each other and try to reach con-

sensus). Participants preferred to cede greater control over decision making to a

third party when decisions had to be made quickly and when the interests of the two

parties were not aligned; they were also more interested in third‐party control when

a standard for making decisions was available than when it was not.

Most of the 1975 book explored the effects of different procedural variations on

various factors, including, for example how diligently a mock attorney worked to