Procedural justice and information in conflict-resolving institutions.

• Author: Ehrenberg, Kenneth M.

A logical analysis of the idea of justice would seem to be a very hazardous business. Indeed, among all evocative ideas, that of justice appears to be one of the most eminent and the most hopelessly confused.

--Charm Perelman (1)

1. INTRODUCTION

   One difficult question that political and moral thinkers have grappled with is how to limit justice. (2) We have a tendency to see justice as potentially applicable to almost any circumstance in which values are somehow involved with interpersonal behavior. (3) Yet in our contemporary parlance it does not seem appropriate to use the language of justice in all such situations. While there may be significant disagreement over which situations are appropriate for the use of the concept, there does appear to be some agreement that the concept is limited by its subject matter. (4)

   My goal in this paper is to examine one way in which the subject matter of justice has an impact on its content. (5) I will examine how a conflict-resolving institution presupposes certain standards of procedural justice and how those standards speak to the amount and kind of information that the conflict-resolving institution may justly consider.

   Each of these concepts will be developed in greater detail below. However, here I offer some preliminary remarks to clarify the subject. Justice is commonly divided into at least two categories: procedural justice and substantive justice. (6) Since both procedural and substantive justice have both form and substance, the term "substantive" is ambiguous. (7) Therefore, for the purposes of this article, I will employ the phrase "outcome justice" for what is commonly called substantive justice. (8) Justice is about situations of actual or potential conflict and the outcomes to these conflicts or the distributions made based on the resolution of these conflicts. (9) As Hume famously noted, justice is not an appropriate standard in situations of abundance or enlarged affections. (10) Rather, it is a concept that serves as a criterion by which we resolve conflicts over property distribution, over showing each other the proper amount of respect, and over the appropriate response to situations where others have been wronged. These and other conflicts define the scope of justice. As social constructions or organizations of people that seek to resolve interpersonal conflicts, conflict-resolving institutions obviously deal extensively with the concept of justice.

   Much of the first part of the paper will be occupied with an attempt to gain a better understanding of these concepts. First, I define conflict-resolving institutions and illustrate how both procedural and outcome justice act as important criteria by which such institutions are to be judged. Next, I examine the division between procedural and outcome justice as it applies to these institutions and the formal aspects of the norm of justice as they constrain these conflict-resolving institutions. Putting these two pieces together, we will then see more specifically how a conflict-resolving institution and the formal aspects of the division between procedural and outcome justice demand certain informational requirements that provide the substance of the procedural justice norms. Finally, we will examine some implications of these considerations for the authority of the conflict-resolving institutions.

   Ultimately, the purpose of this paper is to consider the particular conditions under which conflict-resolving institutions operate and to articulate how those conditions create requirements that restrict the content of procedural justice as applied to such institutions. These requirements limit both the general principles we articulate and the individual judgments we make. A particular focus will be upon notions of procedural justice as intimately linked to the conditions of conflict resolution. (11) We will see that the project of institutional conflict resolution and the need for that resolution to be authoritative presumes limitations on the kinds of information that should be considered in the resolution: too much or the wrong kind of information can contaminate a resolution process and render it unjust. (12)

   I will not offer anything approaching a complete theory of justice. Rather, my goal is to offer some general analyses of certain characteristics that any notion of procedural justice must possess by using examples arising in conflict-resolving institutions. In a way, my examination of justice will be formal rather than substantive. There may be some substantive conclusions that flow from it, but they will be limited to the minimal standards of procedural justice. (13) Put another way, I will examine the manner in which conflict resolution impacts or determines the criterion by which the institutions' performance is to be judged.

2. INSTITUTIONS AND CONFLICTS

   1. The Notion of an Institution

      Institutions are artificial social structures or organizations framed to deal with certain kinds of problems or to accomplish or pursue certain goals. (14) Different institutions will, therefore, deal with different kinds of problems and goals. For example, a library is an institution that addresses the research problems of its patrons. Researchers have a variety of needs with regard to their research projects. (15) Some or all of these needs can conflict with the needs of other researchers. Given the limited resources of space and money at the library's disposal, not every possible research need can be met. Therefore, the institution must examine the actual and potential conflicting needs of researchers in order to decide which books to buy and to which publications the library should subscribe. The output or determination of the process is a solution to the problem at hand. That solution, however, may or may not have been arrived at through a just process. Furthermore, notwithstanding the process used to arrive at the solution, it may or may not be a solution that fairly accounts for the interests of all actual or potential researchers.

      The conflict-resolving institutions that I describe are meant to be as general as possible, but must share some characteristics to be relevant. While one might sometimes speak of justice in noninstitutional settings, I do not believe that much can be learned from these uses for the present purposes. (16)

   2. Conflict-Resolving Institutions

      The kinds of institutions I have in mind are ones that resolve conflicts among people. (17) These resolutions are not always to the satisfaction of the parties involved in the conflict, but the nature of the institution as the mechanism for solving the kind of conflict at issue gives the resolution some authoritative status (18) The parties must, therefore, respect this authority if they are to continue with whatever enterprise represents the context in which the conflict arose. This might be a very general social enterprise, such as a nation or municipality; the decisions of its legislatures, executive bodies and courts must be respected for a party to continue participating within that social entity in good standing. It might also be a very limited and specific enterprise, such as an orchestra; the decision of its dispute resolution mechanism must be respected for the party to continue to participate in the orchestra.

      An institution that is concerned with justice and yet fails to resolve either actual or potential conflicts among people reduces justice to an ancillary or metaphorical role. (19) In such institutions, a robust role played by justice could be analyzed as stemming from a sub-institution, which shares more in common with the kinds of conflict-resolving institutions that are at issue here.

      Revisiting the example of an orchestra, it is an institution the primary function of which is to practice and perform music. In that role, questions of justice will rarely, if ever, arise. To the extent they do arise, the use of the word "justice" will tend to be metaphorical or derivative, such as a claim that it would be unjust to play yet another work by Beethoven when the orchestra has not yet played any Tchaikovsky. (20) However, to the extent that the orchestra has mechanisms in place for dealing with disputes that arise among musicians or between them and the directors or administration, that mechanism is a sub-institution. When functioning primarily as a dispute-resolver, such a sub-institution can itself be analyzed as a conflict-resolving institution. Hence that aspect of the institution is subject to the analysis of this paper.

   3. Conflicts, Goods, and Values

      The conflicts with which justice is concerned arise as a result of the importance people place on "goods" such as ideas, objects, events, other people, actions, behavior, status, and states of affairs. (21) One type of conflict might arise out of mutually exclusive claims, such as when two individuals or groups value the same good, the nature of which prevents simultaneous use of the good. In a dispute over non-divisible property, two or more parties might both claim entitlement to the property. In a dispute over divisible property, one or more parties may claim an amount that is inconsistent with the claims of other parties. Conflicts may also develop where the opposing parties value a good inconsistently. It may be of high value to one person to bring about a state of affairs, while for another it may represent a disvalue--something to be avoided. For example, consider the availability of firearms to the general public: for some it is of great value, while for others it is of great disvalue.

      There is an important distinction between the value placed upon a thing and the thing being valued, i.e., the good. (22) Sometimes we fail to maintain this distinction by using the word "value" to stand for both together. (23) When dealing with abstract entities such as rights, this distinction is easily blurred. For example, for me to say that my right to bodily integrity is a value...