On Evolution Of The Theory Of Procedural Justice In The West

As a comparative concept to substantive justice, procedural justice has been well-known to scholars in China because of the import of the theory in the latter period of last century. However, the transplant of the theory never can be completed overnight, which has been proven by the judicial reform in China over these years. When we feel regretful about the difficulties in the theory transplant caused by the geographical and cultural variety, there are still a number of Chinese scholars striving assiduously after the procedural justice, thinking never stops.But in terms of the current study, it mostly remains at the stage of introducing the doctrines of procedural justice into China. Moreover, those doctrines are always introduced individually without a whole view. Therefore, the author takes the evolution of the theory of procedural justice as the theme of this paper in order to provide people with a historical perspective through the disclosure of the development of the procedural justice.This paper consists of five parts.The first chapter is about the conceptual origins and development of procedural justice, in which discussed are the ideas about procedural justice in ancient Greek and Roman, the procedural concept in medieval Europe, and the evolution of due process in UK and USA.Through the investigation of the trial of Socrates and the legal practice in ancient Roman, the paper reveals that though the theoretical research on justice was ultimately about the substantive justice, there also existed some ideas of the procedural justice, which might well stem from the natural reason (natura rerum) just as those ancient ideologists interpreted. Through the study on the discussion of Plato, Aristotle, Stoics and Cicero, the paper finds out the conceptual seeds of procedural justice in their ideas of justice.Plato's concept of justice as order, Aristotle's theory of natural justice,the ideas of natural law which had been systematized by the Stoics and promoted by Cicero, that all are the sources of the theory of procedural justice. In practice, the two basic principles of natural justice ("nemo debt esse judex in propria causa" and "audi alteram partem") also have been established in the latter period of ancient Roman.In the Middle Ages, the inquisitory procedure was commonly adopted by the continental countries in order to strike against cirimes and strengthen the feudal regime. The shotcomes of the inquisitory procedure are obvious, and consequently were exerted to extreme by both the ecclesiastical court and the secular court. Even in such a procedure, we still can find out people's primary concept of legal procedure, mainly including punishment after trial, judgement based on evidence, trial not only for punishment but for dispute resolution, and judging by reason and conscience.In medieval England, the ancient concept of procedural justice received further development. The drawing up of Magna Carta in 1215 gave a legal expression to procedural justice, and the ideas of due process became codified and specific due to the effort of Coke and others. Meanwhile, in the struggle against royal tyranny, the due process was always a powerful weapon exploited by the British people, and played a significant role in history. To modern times, substantive meaning of due process gradually changed into the rule of law in Britain, and became a controlling handle to the state power. At the same time, the procedural meaning of due process in origin was specified, and blended with the principles of natural justice into procedural rules in certain cases. In return, these procedural rules enhanced people's conception of procedural justice, and provoked further reflection on procedural justice. Ofcourse, people are more likely to use "procedural justice" instead of "natural justice" in today's Britain.Since the law of USA shares the same origin with that of UK, the concept of procedural justice and the corresponding procedural rules are accepted totally even with no exception. Similar with that in Britain, there also derives from the due process, which is purely about procedure in origin, a substantive meaning in America. This "unexpected creation" is really a match in excellence with the "grafting" of Coke. Moreover, in the aspect of social function, the substantive due process in US is equivalent to the rule of law in UK, and the procedural due process to the principle of natural justice as well. Is this due to people's creation? or the inherent character of due process itself that has been found out? That is a thought provoking phenomenon.The second chapter is about the formation and development of the theory of procedural justice, and mainly examines the representative doctrines in modern and contemporary times.The paper points out that it is Jeremy Bentham who first makes systematic study on legal process. From the angle of Utilitarianism, Bentham explains the importance of process to the result of it, and draws a clear line between the procedure law and substantive law. Living in the same times with Bentham, Beccaria sets forth his comprehensive overview on procedure law in the sharp criticism to the old penal system, and proposes a process-oriented viewpoint of legal procedure.Both of them should be regarded as the pioneers in the theory of procedural justice, since they open the door to the theoretic study on procedural justice.By the 1970s, A Theory of Justice by Rawls was published. In this book, Rawls explained procedural justice as a comparative concept to substantive justice (distributive justice), and put forward four types of procedural justice with their respective functions, and relations with the substantive justice. Therefore, the theory of procedural justice came into being. And since then, the procedural justice quickly became the focus of academics, many scholars published their consideration on it, and the theory of procedural justice has got constant enrichment and expansion.Besides that, Chapter three also delivers thematic discussion on the theory of process value, the theory of procedural fairness and the study on procedural justice of sociological jurisprudence. The first two are the main content of the theory of procedural justice, and the last one reflects the research methods of procedural justice are diverse and rich.Through the analysis of Pound, Posner, Dworkin, Fuller, Mashaw, Duff and Summers'doctrines of process value, this paper puts forward that the theory of process value has a history from an instrumental one to process-oriented one, from a unitary one to a comprehensive one. As the fundamental part of the theory of procedural justice, the theory of process value proves the social significance of legal procedure, and provides the necessity and legality of procedure with a logical basis. The specific values revealed by the theory of process value reflects the potential functions of legal procedure on the one hand, and provides us with criteria for evaluating legal procedure on the other hand.As to the theory of procedural fairness, the paper primarily examines the discussion of Golding and Bayles. Golding's academic contribution is mainly to sorting out the standards of procedural fairness. Though his work is a little rough and lacking in strong argument, or even flawed, Golding puts up reasonable standards for people to judge an existing legal procedure. Golding also stresses that fair process of litigation can help the dispute being resolved psychologically rather than simply ending the case. While resolving the dispute, fair process is also able to promote the trust of the parties to the entire judicial system, which constitutes the basis to a legal system and makes it effective. The discussion of Bayles on the procedural justice, covering the connotation of procedural justice, the standards of fair process, the theoretical basis and scope of application, is indeed a summary of the doctrines and viewpoints in the Anglo-American countries since the 1960s. He believes that the value of procedural justice should be based on the respect to the individual dignity and moral subject of the party, which makes great progress in the arguments of Summers and Mashaw, enriching the understanding of the social significance of legal procedure. Compared with Golding's, the criteria for evaluating legal procedure given by Bayles are more specific and feasible, many of them can be used as procedural rules immediately. In the part of sociological research in procedural justice, psychological study of Lind and Tyler et al and the communicative theory of Habermas are examined. The psychological study on procedural justice not only enriches the researching methods, but also brings us inspiring conclusions. For example, the psychological study reveals that the result of a legal procedure has direct influence on the evaluation of procedural fairness, which overturns the process-oriented argument that evaluating the procedure without considering the result and provides a strong support to the instrumentalism. Furthermore, this conclusion sets a reasonable base for the comprehensive theory of process value, and promotes the integration of the instrumentalism and intrinsicism. Although Habermas's communicative action theory or discourse theory is not mainly about procedure, and his analysis of procedural issues only aims to express the communicative action theory, it is undeniable that the use of sociological principles and methods to the interpretation of procedural issues undoubtedly broadens the way to procedural justice study. Habermas argues that procedure has a justice-defining function, which is also quite inspiring in academic circle.In chapter three, the paper reviews justice reform in UK and USA, which took place against the background of procedural justice theory during the late part of last century. In the justice reform, both UK and USA made adjustment or even retreat in due process. In crimial justice, the procedural rights which were enjoyed by the accused in traditional due process had been restricted for crime control; in civil justice, the process had been simplified and the strict obedience to procedural rules was not required in order to increace the porcess efficiency. The paper points out, though its value orientation seems contridictory to the arguments of procedural justice theory, the reform carries out the practice of procedural justice theory and provides proof to it.Chapter four discusses the world practice of the procedural justice with the examination of the regional and international charters on human rights, including European Convention on Human Rights and International Covenant on Civil and Political Rights.After World War Two, the stipulation of procedural justice in the regional or international conventions proves the universality of procedural justice. The values of process and the criteria of procedural fairness that have been revealed by the theory of procedural justice are agreed on by most countries around the world. The procedural rules stipulated in these international legal documents are primary and minimum requirements that can be applied to country of any legal family or any litigation model, and all the member countries have morally irresistible and unshakable obligation to execute these procedural rules. As these international conventions are carried out in the member countries, the values and criteria of fair procedure demonstrated by the theory of procedural justice are constantly spreading to every corner of the world.The closing part is about the trend of the theory of procedural justice.The paper points out that, the theory of procedural justice is going to be applied in more social fields, its internationalization will keep deep-going, and itself is still in evolution.