these ideas are useful, but not necessary.

1. Justice

2. Justice
Primary Distinction:
A. Distributive Justice
v.s.
B. Retributive Justice

3. A. Distributive Justice
normative principles designed to
allocate goods in limited supply relative to
demand.
Involves three questions:
1. What goods?
2. Who get them?
3. Why?

4. B. Retributive Justice
normative principles designed to allocate
punishment relative to crime.
Involves an initial distinction:
substantive vs procedural justice.
i. substantive: the outcome (of a trial, for example)
ii. procedural: the procedure followed (in the trial,
for example)

5. i. Substantive Justice
• In liberal constitutional democracies the
substantive justice (justice in content), of law has
been guaranteed by a constitutional state.
• For this reason legislation is entrusted to elected
bodies that must periodically answer to the
electorate.
• thus those who are elected to office do not have
complete power, but are curbed by and bound to a
representative role

6. ii. Procedural Justice
• Procedural justice asks:
a. What is rule of law?
b. What is its significance?
c. Does rule of law mean that there is no "rule of
person?"
d. What are the institutional conditions and cultural
content of rule of law?

7. a. What is rule of law?
• a tradition dating from the Roman republics
• a key component of liberal democracies
• fully developed by liberal constitutionalism
• no one is above the law, not even the government
• an autonomous legal order: the authority of law
depends on autonomy from other normative structures
such as politics and religion

8. a. What is rule of law? (Con’t)
Rule of Law is not
• rule ‘by’ law: government is above the law
• rule of person: what pleases the ruler(s) is
law.
In these situations, there is no limit to what the rulers
(the government) can do and how they do it.

9. a. What is rule of law? (Con’t)
Rule of Law provides:
– a check on government power
– equality before law
– Formal structure

10. Rule of Law as a Check on
Gov Power
two functions:
1. it limits government arbitrariness
and power abuse through
accountability
2. it makes the government more
rational and its policies more
intelligent

11. Rule of Law as a provider of
Equality before law
- equality before the law is a
universally recognized principle in
all liberal democratic countries,
although different countries might,
at the margins, have different
interpretations of what that equality
entails.

12. Rule of Law as a provider of
Formal Structure
‘Formal’ means a system in which
lawmaking is part of the legal system itself
(I.e all rules, procedures and decisions can be
deduced from the legal system itself.)
In contrast: systems in which lawmaking
uses factors outside law, such as ethical, emotional,
religious or political factors.

13. Formal Justice
4 principles of formal justice:
1. The legal system must have a complete and
fair set of decisional and procedural rules.
2. The fair rules of decision and procedure
must also be pre-fixed and pre-
announced.
3. These decisional and procedural rules must
be transparently applied.
4. These decisional and procedural rules must
be consistently applied.

14. 3 Values of Formal Justice
1. Procedural justice is seen as a necessary
condition for substantive justice.
2. Procedural justice is a condition for
constraining government arbitrariness and
protecting individual rights.
3. Procedural justice results in consistency,
predictability and calculability that are
desirable aspects of economic and social life.

15. Discussion
• Example: confession of guilt under torture
• Does it make sense to emphasize procedural
justice over substantive justice?
• What do you make of the criticism that the
capitalist style rule of law is a sham, that
"formal" is synonymous with "superficial" and
"unreal," and the distinction between formal
and substantive justice is a distinction
between apparent and real justice?

16. Discussion 2
This still leaves us with three questions:
b. What is the significance of the Rule of Law?
c. Does rule of law mean that there is no "rule of
person?"
d. What are the institutional conditions and cultural
content of rule of law?

17. Which justice is more just?
• Which is better:
1. A system of rules so just that a few innocent
people accidentally get punished,
or
2. A system of rules so merciful that a few guilty
people accidentally don't get punished?