Procedural Justice: Allocating to Individuals

263 Pages·1990·7.24 MB·English

by  Michael D. Bayles (auth.)

PROCEDURAL JUSTICE
LAW AND PHILOSOPHY LIBRARY
Managing Editors
ALAN MABE, Department of Philosophy, Florida State University,
Tallahassee, Florida 32306, U.SA.
MICHAEL D. BAYLES, Department of Philosophy, Florida State
University, Tallahassee, Florida 32306, U.SA.
AULIS AARNIO, Department of Civil Law, University ofH elsinki,
Vuorikatu 5c, SF-OOlOO Helsinki, Finland
Editorial Advisory Board
RALF DREIER, Lehrstuhlfur Allgemeine Rechtstheorie, Juristisches
Seminar der Georg-August Universitiit, Gottingen
GEORGE P. FLETCHER, School ofL aw , Columbia University
ERNESTO GARZ6N VALDES, Institut fur Politikwissenschaft,
Johannes Gutenberg Universitiit Mainz
JOHN KLEINIG, Department ofL aw, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University ofN ew York
NICOLA LACEY,New College, Oxford University
NEIL MacCORMICK, Centre for Criminology and the Social and
Philosophical Study ofL aw, Faculty ofL aw, University of Edinburgh
ALEKSANDER PECZENIK, Juridiska Institutionen, University ofL und
NIGEL SIMMONDS, Corpus Christi College, Cambridge University
ROBERT S. SUMMERS, School ofL aw, Cornell University
ALICE ERR-SOON TAY, Faculty ofL aw, University of Sydney
ERNEST J. WEINRIB,FacultyofLaw, University of Toronto
CARL WELLMAN, Department of Philosophy, Washington University
VOLUME 10
MICHAEL D. BAYLES
Department of Philosophy,
Florida State University
PROCEDURAL JUSTICE
Allocating to Individuals
KLUWER ACADEMIC PUBLISHERS
DORDRECHT / BOSTON / LONDON
Library of Congress Cataloging in Publication Data
Bayles, Michael D.
Procedural justice; allocating to individual~ I Michael D.
Bayles.
p. cm. -- (Law and phi losophy library>
Includes bibliographical references.
1. Law--Methodology. 2. Judicial process. 3. Law--Philosophy.
1. Title. II. Series.
K212.B39 1990
340·.1--dc20 89-24643
ISBN-13: 978-94-010-7362-2 e-ISBN-13: 978-94-009-1932-7
DOl: 10.1007/978-94-009-1932-7
Published by Kluwer Academic Publishers,
P.O. Box 17,3300 AA Dordrecht, The Netherlands.
Kluwer Academic Publishers incorporates
the publishing programmes of
D. Reidel, Martinus Nijhoff, Dr W. Junk and MTP Press.
Sold and distributed in the U.S.A. and Canada
by Kluwer Academic Publishers,
101 Philip Drive, Norwell, MA 02061, U.S.A.
In all other countries, sold and distributed
by Kluwer Academic Publishers Group,
P.O. Box 322, 3300 AH Dordrecht, The Netherlands.
Printed on acid-free paper
All Rights Reserved
© 1990 by Kluwer Academic Publishers
Softcover reprint of the hardcover 1st edition 1990
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
CONTENTS
EDITORIAL PREFACE ix
ACKNOWLEDGMENTS xi
LIST OF ABBREVIATIONS xiii
1. INTRODUCTION 1
Procedural Contexts 2
Some Distinctions 3
A Nonnative Method 9
The Adversary Adjudication Model 13
PART I: TRADITIONAL PRINCIPLES
2. IMPARTIALITY 19
Interest, Bias, and Necessity 21
Independence 29
Ex Parte Communications 35
Summary 37
3. OPPORTUNITY TO BE HEARD 39
An Open Hearing 42
Timeliness and Notice 43
Presentation of Evidence 47
Counsel 53
The Record 55
Appeals 57
Summary 59
4. GROUNDS FOR DECISIONS 61
Discretion 62
The Requirement of Standards 66
Findings and Reasons 72
Burden of Proof 78
Judicial Review 80
Summary 84
vi CONTENTS
5. FORMAL JUSTICE 87
Consistency 91
Adherence to Precedents 98
Conformity to Rules 104
Summary 110
PART II: THEORY
6. A THEORETICAL JUSTIFICATION 115
Economic Costs 117
Moral Costs 120
Process Benefits 127
Justification of Basic Principles 135
Summary 138
7. THE LIMITS OF LAW 141
State Action 144
Deprivations 147
Importance 153
Special Standards 156
Alternative Protections 159
Summary 161
8. AL1ERNATIVE DECISION-MAKING MODELS 163
The Limits of Adversary Adjudication 163
Alternative Models 168
Choice of Models 179
Summary 187
PART m: APPLICATIONS
9. PROFESSIONAL DISCIPLINE 193
Law and Adjudication 195
Impartiality 199
Opportunity to Be Heard 201
Findings, Reasons, and Formal Justice 209
Summary 212
CONTENTS vii
10. EMPLOYMENT DECISIONS 215
Hiring 215
Merit and Promotion 222
Discipline and Demotion 227
Termination 232
Summary 237
WORKS CITED 241
TABLE OF CASES 250
INDEX 252
EDITORIAL PREFACE
During the last half of the twentieth century, legal philosophy (or legal theory
or jurisprudence) has grown significantly. It is no longer the domain of a few
isolated scholars in law and philosophy. Hundreds of scholars from diverse
fields attend international meetings on the subject. In some universities, large
lecture courses of five hundred students or more study it.
The primary aim of the Law and Philosophy Library is to present some of
the best original work on legal philosophy from both the Anglo-American and
European traditions. Not only does it help make some of the best work available
to an international audience, but it also encourages increased awareness of, and
interaction between, the two major traditions. The primary focus is on fu11-
length scholary monographs, although some edited volumes of original papers
are also included. The Library editors are assisted by an Editorial Advisory
Board of internationally renowned scholars.
Legal philosophy should not be considered a narrowly circumscribed field.
Insights into law and legal institutions can come from diverse disciplines on a
wide range of topics. Among the relevant disciplines or perspectives contribut
ing to legal philosophy, besides law and philosophy, are anthropology,
economics, political science, and sociology. Among the topics included in
legal philosophy are theories of law; the concepts of law and legal institutions;
legal reasoning and adjudication; epistemological issues of evidence and pro
cedure; law and justice, economics, politics, or morality; legal ethics; and
theories oflegal fields such as criminal law, contracts, and property.
MANAGING EDITORS
ACKNOWLEDGMENTS
This book grew out of my work on procedural law for a previous book. I
became convinced that philosophers had ignored issues of procedural justice
and that often proper procedures were more important than substantive prin
ciples for the practical achievement of aims. Thus, I set out to write a book
exploring the philosophical and ethical basis of procedural justice. However,
as it developed the book became more one of legal philosophy than ethics.
Philosophers have written little on procedural justice, so most research
materials were in law. There seemed no point in trying to develop a strictly
ethical theory until I had a fmn grasp of the legal matters. Moreover, like
myself in the beginning, most philosophers are unaware of the legal analyses.
Consequently, Part I of the book largely elucidates current legal principles. Part
II develops a theoretical framework for law and ethics. Part III then illustrates
how that framework applies to two important areas.
As usual, my thoughts on the subject were greatly clarified in teaching two
courses related to it, one at the University of Wes tem Ontario in 1984 and the
other at the University of Florida in 1986. I wish to thank the students in those
courses. Eric Baker, my research assistant at the University of Florida during
the Spring 1986, performed invaluable library research. Joseph Grcic read a
draft of the entire manuscript and gave some general comments. Work on the
manuscript was partially supported by a Research Development Award and a
Graduate Research Assistantship from the Division of Sponsored Research,
University of Florida. Two until recently anonymous referees-Carl Wellman
and Timothy Terrell-provided helpful comments on the penultimate draft,
although I am confident they will think it could still have been improved.
For preparation of camera-ready copy, I thank Florene Ball, and especially
Donald Herget for much work on the tables and diagrams and final printing.
Parts of the manuscript are significantly revised versions of previously
published material. Four paragraphs in section two of chapter 1 and the first
six of section two of chapter 7 are taken from "Procedural Due Process," in
Philosophical Foundations oft he Constitution, edited by Diana T. Meyers and
Kenneth Kipnis (Boulder, Colo: Westview Press, 1989), pp. 207 and 210-12,
copyright © 1988 by Westview Press, Inc. Finally, two paragraphs of the third
section of chapter 1, a paragraph in chapter 5, the frrst three sections of chapter
6, and the frrst section of chapter 8 are drawn from Principles of Law
(Dordrecht: D. Reidel Publishing Co., 1987), §§ 1.2,2.3.9,2.1.1-2.1.3, and
2.2.
LIST OF ABBREVIATIONS
ABA American Bar Association
APA Administrative Procedure Act, 5 U.S.C. (1978)
Cdn. Charter Canadian Charter of Rights and Freedoms, Constitution
Act, 1981
CE Council of Europe
IEEE Institute for Electrical & Electronics Engineers
LRCC Law Reform Commission of Canada
MSA National Conference of Commissioners on Uniform State
Laws, Model State Administrative Procedure Act (1981)
OAS Organization of American States
RSA National Conference of Commissioners on Uniform State
Laws, Revised Model State Administrative Procedure Act
(1961)
UN United Nations