Substantive Justice Vs. Procedural Justice Definition

1 Δεκεμβρίου, 2022 Χωρίς κατηγορία

The antitrust story is not unique at the time; the federal laws of the early years of the Federal Rules largely consisted of economically similar disputes, regardless of their substantive legal context. Although Rawls constantly presents his theory of justice as an entrepreneur, we can now see that the terms of the contract are partly determined by the previous normative principles that Rawls lets the parties follow. Unlike Gauthier, it is no longer just about interested entrepreneurs negotiating their path to an agreement. Rawls openly admits that the contractual situation must be adjusted so that it produces results consistent with our pre-existing beliefs of justice. But then we can ask how much work the conventional apparatus actually does (see Barry 1989, chap. 9 for a critical evaluation). But the obligations of transtantiness could not have developed without the predicate of conceptual separation of content and procedure. At common law, each individual document included “a wide range of procedural, remedial and evidentiary issues.” 116 Professor Subrin points out that the publication of Blackstone`s comments (which conceptually separated good, evil, and methods of execution) was a key development in the American evolution into separate areas of substance and process.117 For committee leaders who are genuinely committed to creating a procedural system, the most important moving elements are the merits of the parties` claims. the defence and economic incentives in the case that influence the procedural course of the parties, in addition to the merits. In general, a procedural system will maximize the impact of the parties` income positions on the outcome of the dispute, while minimizing the impact of independent economic incentives on the outcome.

Aristotle identified two different possible forms of equality and examined the conditions under which each could fulfill the essential premise of true justice, “treating equal cases as equal.” According to Aristotle, a system of “arithmetic equality” is one that treats all cases equally.42 As we shall see, arithmetical Aristotelian equality is functionally identical to what modern legal commentators have called “formal equality.” Solum reviews a number of potential theories of participation in its handling of procedural justice, but ultimately comes to the thesis that meaningful participation is necessary because it supports the legitimacy of our dispute resolution mechanisms.95 It is important to note that this component of enhancing the legitimacy of meaningful participation is independent of the merits of an individual`s claims or defences. Solum points out that the real litmus test for participation as an independent and legitimate-enhancing good is not whether one would feel less tied to a “good” decision if it came without the possibility of meaningful participation.96 Rather, the question is whether one would feel more connected to a “bad” decision if, After a notification and a significant opportunity, 97 Whether justice is a matter of individual treatment seems to pose problems for theories such as utilitarianism, which judge actions and policies on the basis of their overall consequences, which are aggregated between people – provided that these theories seek to incorporate rather than reject the idea of justice. In section 4 below, we look at how utilitarians have tried to meet this challenge. Since both components of risk are likely to be asymmetrically distributed across the range of potential civil litigation, formal equality only makes sense if the parties` reactions to civil law rules are effectively independent of risk. That is certainly not the case. A risk-averse party may very well have different reactions to civil law settlements than its risk-neutral or risk-based analogue.217 Last but not least, risk preference affects litigants` ex ante expectations – risk-averse litigants will reduce the expected value of a claim and increase expected costs. and risk-seeking litigants will do the opposite. Although the risk asymmetry issues caused by transsubstantial procedures may be somewhat more difficult to resolve by substance-specific deviations from standard transsubstantial rules, the heterogeneous distribution of risk profiles undermines any subsequent commitment to our existing formal standard of equality.218 In order to promote substantive equality in civil proceedings, A procedural system must strike the right balance between three 82 These foundations of procedural justice contradict the formal standard of equality enshrined in the current transsubstantial rules. This article assumes that the preferences of substantive legislators take precedence over all legal rights and obligations that society wishes to enforce. Given this assumption, according to Rule 1 “fair, expeditious and inexpensive”, it is unfair to apply transsubstantial rules perfectly suited to the case of the 1938 paradigm of information symmetry, which still exists in large quantities in civil records, while the same transsubstantial rules make it much more difficult for parties facing a modern asymmetric claim to information to obtain the rights they are entitled to. awarded by substantive legislators. defend.

Although justice focuses on the treatment of individuals, we can also speak of justice for groups – for example, when the state allocates resources among different categories of citizens. Here, for attribution purposes, each group is treated as if it were a separate individual. It is time for civil proceedings to move beyond rigid formalism and instead focus on substantive equality.16 Substantive equality standards generally allow regulators to look behind the curtain to varying degrees to assess and respond to the height and fall of different dimensions of the playing field. Proponents of equality-based approaches note that facial similarities in status and condition often mask significant and highly relevant differences, so nominal equality of opportunity becomes functionally unequal. Therefore, a formally equal system may, for example, grant equal rights and treatment to all “persons”, but it may still be functionally discriminatory if the persons invoking these rights face very different paths and barriers because of their race, gender or other characteristics. The law can “also” prescribe or prohibit, but the effects of the law will be felt differently. Substantive equality theorists therefore welcome interventions focused on equality of opportunity when they conclude that formal nominal equality cannot overcome institutional or other barriers to a truly equitable system.17 Substantive equality requires regulators to confront this unjust reality in a way that formal equality simply cannot. Although each state has adopted its own procedural laws, generally referred to as the “Code of Criminal Procedure”, the basic procedures followed in most jurisdictions include: We saw at the beginning of this article that justice can take different forms, depending on the practical context in which it is applied. Although we found common elements that run through this variety of uses – most likely captured in Justinian`s formula “suum cuique” – these were formal rather than substantial. In these circumstances, it is natural to seek a comprehensive framework within which the various contextually specific notions of justice can be integrated.

Three of these frameworks were examined: utilitarianism, contractarianism, and egalitarianism.



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