Procedural justice and substantive justice, with examples

Introduction

Theories of justice can be divided according to whether they ask about the fairness of the process or the fairness of the result. This is the distinction between procedural and substantive justice, one of four distinctions IGNOU draws in the concept of justice.

Procedural and substantive justice

IGNOU lists procedural versus substantive justice among the distinctions needed to understand the concept of justice.

Procedural justice concerns the fairness of the process: the procedures by which policy decisions are reached. In general terms it is justice according to law and to the procedure the law lays down, so that justice is taken to be done when the procedures are followed as the law requires. It has traditionally gone with formal equality, everyone equal before the law whatever their gender, religion or caste; rights-based justice is of this kind; and because it treats individuals as rational agents who decide for themselves, it denies the state a right to interfere with what individuals are entitled to, and so supports individualism and the market economy. The free-market argument is procedural in this sense: if exchanges are voluntary and competition free, then, as NCERT puts its defenders' view, whatever the market distribution turns out to be is just. Nozick's entitlement theory is IGNOU's example of a procedural theory.

Substantive justice looks at the content or outcome: it seeks to redistribute material resources and opportunities so that outcomes are equal, and it needs an ethical or moral standard to decide what is just; needs-based justice is substantive. NCERT's discussion of just distribution is of this kind: justice may require redistribution so that people enjoy some basic equality of life conditions and a basic minimum of nourishment, housing, clean water, education and a minimum wage. IGNOU gives Rawls's theory as the example on this side.

Contrast, with examples. In the courts, procedural justice is the just administration of laws (the rule of law, impartial judges, an independent judiciary) and civil liberties such as a free and fair trial; substantive justice asks whether the laws themselves fit the society's social and moral values. In the market, free contract is procedural, while access to basic goods and services at a cost people can afford is substantive, and markets may not provide it where it is unprofitable. In admissions, open and equal competition is procedurally fair, but a first-generation learner, without the means for coaching or high fees, cannot compete on equal terms, which is why the state is asked to devise special policies.

Relation. The two can conflict: a fair market can leave the weak without basic goods. A complete theory needs both fair rules and an acceptable distribution. Rawls tries to join them: IGNOU calls his original position a fair proceduralist standard, since a principle counts as fair only if an ideal procedure would accept it, and the principles chosen there are distributive.

Meaning and principles of justice

The question of justice is very old and has been asked everywhere, with different answers: Plato's Republic turns on the challenge of why anyone should choose to be just, while in ancient India justice was bound up with dharma, and upholding a just social order was counted the king's first duty. The modern understanding starts from Kant's claim that every human being has dignity. If that is so, each person is owed the chance to develop his or her talents and to follow goals of his or her own choosing, and every individual must be given due and equal consideration; this is how the old formula of giving each person his or her due is read today. Three principles are commonly used to fill this out:

1. Equal treatment for equals (what we share as human beings): equal rights and no discrimination on grounds of class, caste, race or gender; equal work earns equal reward.
2. Recognition of special needs (what some of us lack): help for those with disabilities, or without access to good education or health care; this extends, instead of contradicting, equal treatment, since equals are to be treated equally and those unequal in important respects may be treated differently.
3. Proportionate justice (what we contribute): rewards in proportion to the scale, quality and risk of effort, provided everyone starts from equal rights.

The three can pull apart, and no formula settles the conflict. A government that insists only on identical treatment may short-change merit; one that rewards merit above all may leave behind groups who never had good food or schooling; so the balancing is itself a task for government. Social justice also concerns the just distribution of goods and services, which may require redistributing resources so that people enjoy some basic equality of life conditions and opportunities. A town council that lays piped water into a slum before it upgrades the supply of a well-off colony is applying this principle in a small way.

Conclusion

Procedural justice looks at the fairness of the rules and process, substantive justice at the fairness of the result. They differ, but each needs the other: a fair process with no concern for outcomes can leave the weak without basic goods, while concern with outcomes alone can override the rights and entitlements that procedural theories protect.