Abstract
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.
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Notes
This is not the first statutory enshrinement of CMPs. For example, the Counter-Terrorism Act 2008 introduces in one sense an even broader CMP, where it can be invoked not just where there are national security concerns but also broader public interest issues. However, the scope of this CMP is limited to financial restrictions proceedings, i.e. those involving some sort of financial sanction. Furthermore, CMPs can also be made on a non-statutory basis: the Court itself has long had a recognised power to invoke a CMP in certain cases, for example those involving wardship cases before a family court—this is known as the Court’s inherent jurisdiction to make a CMP.
‘I want to say that one conception of justice is more reasonable than another, or justifiable with respect to it, if rational persons in the initial situation would choose its principles over those of the other for the role of justice. Conceptions of justice are to be ranked by their acceptability to persons so circumstanced’ (Rawls 1999, pp. 15–16).
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Pointon, D. Accommodating Closed Material Procedures within Rawls’ Theory of Justice. Res Publica 25, 319–333 (2019). https://doi.org/10.1007/s11158-018-9399-0
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DOI: https://doi.org/10.1007/s11158-018-9399-0