Procedural Justice

Nathan Newman has a post up that argues that:

Liberals in recent decades have worshipped at the altar of procedural justice-- the Miranda Rule, evidence excluded where legal rules are ignored, etc. -- of the idea that if the rules are followed, even if some incidental injustice is dealt, the overall average of results will be the greater good.

My first reaction was that this was just a more sophisticated version of the old whine that liberals are too nice and conservatives fight dirty.

I think there's a bipartisan tendency to make accusations of procedural injustice when one thinks the substantive outcome was unjust. How many Bush supporters think the Florida recounts were done incorrectly, and how many Gore supporters think Bush's victory was legitimate? How many pro-life people think Roe v. Wade is constitutionally sound, and how many pro-choice people think it's lacking? Both sides implore the other to accept noble defeat.

It's often easier to make a claim of procedural injustice than of substantive injustice. Sometimes the substantive claim is harder to defend -- it's much more socially acceptable to make the procedural states' rights argument, for example, than to defend the substantive outcome of institutionalized racism. Another advantage is that procedural injustice opens the way for a do-over, bringing down the substantive decision by arguing that it was improperly made. A good example here is the tendency among many conservatives to focus on the procedural question regarding gay marriage, concerning themselves with the alleged procedural injustice of "judicial activism" rather than the substantive issue of whether gays should be allowed to get married.

This is not to say that all claims of procedural injustice are excuse-making. There are plenty of instances of real procedural injustice, and those instances are more likely to be seen and pointed out by those who dislike the outcome. Indeed, there's even something to the argument that gay rights would be on a stronger footing if they were enacted by legislatures rather than judges. I think the tendency to cry procedural injustice makes perfect sense if we hold to the utilitarian justification for procedures that Newman describes. That is, that the means are justified by what kind of ends they produce. This is the same way we justify procedures for many practices other than policymaking -- a recipe is justified by the taste of the finished food, not some independent rules of cooking. So if an outcome is substantively unjust, that suggests that either the existing procedures were not followed correctly, or that some change in the procedures is necessary. The second conclusion is often couched in the first, due to our reverence for tradition -- for example, the civil rights movement overturned institutional racism by appealing to the unfulfilled promise of the Declaration of Independence ("all men are created equal").