Res Publica

, Volume 25, Issue 3, pp 319–333 | Cite as

Accommodating Closed Material Procedures within Rawls’ Theory of Justice

  • Daniel Pointon


Closed Material Procedures (CMPs) are widely considered to be unjust. In his influential A Theory of Justice, Rawls sets out that trials must be fair and open, and that such precepts of natural justice ensure the impartiality of the legal order. I argue that whilst this commits Rawls to a rejection of the permissibility of CMPs, he is not right to do so, and his theory does not require him to do so. Firstly, the conception of natural justice upon which Rawls bases his view of open justice is not so strict as to demand this so long as the legal system ensures a sufficient gist of the closed material is provided. Secondly, it is plausible that individuals in Rawls’ original position (through which we arrive at fair, and a fortiori just, principles), would select CMPs due to the role security and stability play in a just state, the importance of which Rawls explicitly recognises. I conclude that CMPs are consistent with Rawls’ theory of justice, despite his assertions in A Theory of Justice. Given the importance and influence of Rawls’ theory, this is an important step in demonstrating the permissibility of such procedures, duly circumscribed.


Rawls Closed material procedures Natural justice Justice and security act 


  1. AF no. 3. 2009. Secretary of State for the Home Department v AF, AN and AE (No. 3). ([2009] UKHL 28). Accessed 1 Dec 2017.
  2. Al Rawi. 2011. Al Rawi and others v the Security Service and others ([2011] UKSC 34). Accessed 1 Dec 2017.
  3. Barry, Brian. 1973. The liberal theory of justice: A critical examination of the principal doctrines in a theory of justice by John Rawls. Oxford: Clarendon Press.Google Scholar
  4. Barry, Brian. 1990. How not to defend liberal institutions. British Journal of Philosophy of Science 20: 1–14.Google Scholar
  5. Brilmayer, Leo. 1987. Jurisdictional due process and political theory. University of Florida Law Review 39: 293–314.Google Scholar
  6. Campbell, Tom. 2010. Justice. 3rd edn. Basingstoke: Palgrave Macmillan.CrossRefGoogle Scholar
  7. Carnduff. 2001. Carnduff v Rock ([2001] EWCA Civ 680). Accessed 1 Dec 2017.
  8. Cicero, Marcus. 1928. On the republic and on the laws. Trans. C.W. Keyes. Cambridge, MA: Harvard University Press.Google Scholar
  9. Dworkin, Ronald. 2000. Sovereign virtue: The theory and practice of equality. Cambridge, MA: Harvard University Press.Google Scholar
  10. Foss, Jerome. 2016. Constitutional democracy and judicial supremacy: John Rawls and the transformation of American politics. Amherst, MA: Cambria Press.Google Scholar
  11. Guha, Anita. 2010. Disclosure issues and the role of the special advocate. Family Law Week. Accessed 18 Feb 2018.
  12. Jones, Bob. 2013. The Justice and Security Bill: Focused and proportionate or a derogation of the right to a fair trial? Westminster Law Review 2: 1–17.Google Scholar
  13. Kelman, Daniel. 2016. Closed trials and secret allegations—an analysis of the ‘gisting’ requirement. The Journal of Criminal Law 80: 264–277.CrossRefGoogle Scholar
  14. Lawrence, Michael. 2016. Justice-as-fairness as judicial guiding principle: Remembering John Rawls and the Warren court. Brooklyn Law Review 81: 673–731.Google Scholar
  15. Lloyd, Anthony. 1962. Natural justice. The Philosophical Quarterly 12: 218–227.CrossRefGoogle Scholar
  16. Locke, John. 1988 [1689]. Two treatises of government, ed. Peter Laslett. Cambridge: Cambridge University Press.Google Scholar
  17. Milligan, Luke. 2007. A theory of stability: John Rawls, fetal homicide, and substantive due process. Boston University Law Review 87: 1177–1230.Google Scholar
  18. Rawls, John. 1971. A theory of justice. Oxford: Oxford University Press.Google Scholar
  19. Rawls, John. 1999. A theory of justice. revised edition. Cambridge MA: Harvard University Press.Google Scholar
  20. Rawls, John. 2001. Justice as fairness: A restatement. Cambridge MA: Harvard University Press.Google Scholar
  21. Shauer, Frederick. 1976. English natural justice and American due process: An analytical comparison. William and Mary Law Review 18: 47–72.Google Scholar
  22. Tomkins, Adam. 2011. National security and the due process of law. Current Legal Problems 64: 215–253.CrossRefGoogle Scholar
  23. Wolff, Robert Paul. 1977. Understanding Rawls: A reconstruction and critique of a theory of justice. Princeton NJ: Princeton University Press.Google Scholar

Copyright information

© Springer Nature B.V. 2018

Authors and Affiliations

  1. 1.OrpingtonUK

Personalised recommendations