Accommodating Closed Material Procedures within Rawls’ Theory of Justice
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.
KeywordsRawls Closed material procedures Natural justice Justice and security act
- A and Others v United Kingdom. 2009. https://adsdatabase.ohchr.org/IssueLibrary/Case%20of%20A.%20and%20others%20v.%20The%20United%20Kingdom.doc. Accessed 1 Dec 2017.
- AF no. 3. 2009. Secretary of State for the Home Department v AF, AN and AE (No. 3). ( UKHL 28). https://publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af.pdf. Accessed 1 Dec 2017.
- Al Rawi. 2011. Al Rawi and others v the Security Service and others ( UKSC 34). https://www.supremecourt.uk/decided-cases/docs/UKSC_2010_0107_Judgment.pdf. Accessed 1 Dec 2017.
- 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
- Barry, Brian. 1990. How not to defend liberal institutions. British Journal of Philosophy of Science 20: 1–14.Google Scholar
- Brilmayer, Leo. 1987. Jurisdictional due process and political theory. University of Florida Law Review 39: 293–314.Google Scholar
- Carnduff. 2001. Carnduff v Rock ( EWCA Civ 680). http://www.bailii.org/ew/cases/EWCA/Civ/2001/680.html. Accessed 1 Dec 2017.
- Cicero, Marcus. 1928. On the republic and on the laws. Trans. C.W. Keyes. Cambridge, MA: Harvard University Press.Google Scholar
- Dworkin, Ronald. 2000. Sovereign virtue: The theory and practice of equality. Cambridge, MA: Harvard University Press.Google Scholar
- Foss, Jerome. 2016. Constitutional democracy and judicial supremacy: John Rawls and the transformation of American politics. Amherst, MA: Cambria Press.Google Scholar
- Guha, Anita. 2010. Disclosure issues and the role of the special advocate. Family Law Week. http://www.familylawweek.co.uk/site.aspx?i=ed80894. Accessed 18 Feb 2018.
- 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
- 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
- Locke, John. 1988 . Two treatises of government, ed. Peter Laslett. Cambridge: Cambridge University Press.Google Scholar
- Milligan, Luke. 2007. A theory of stability: John Rawls, fetal homicide, and substantive due process. Boston University Law Review 87: 1177–1230.Google Scholar
- Rawls, John. 1971. A theory of justice. Oxford: Oxford University Press.Google Scholar
- Rawls, John. 1999. A theory of justice. revised edition. Cambridge MA: Harvard University Press.Google Scholar
- Rawls, John. 2001. Justice as fairness: A restatement. Cambridge MA: Harvard University Press.Google Scholar
- Shauer, Frederick. 1976. English natural justice and American due process: An analytical comparison. William and Mary Law Review 18: 47–72.Google Scholar
- Wolff, Robert Paul. 1977. Understanding Rawls: A reconstruction and critique of a theory of justice. Princeton NJ: Princeton University Press.Google Scholar