When discussing issues of social justice, questions of procedural justice cannot be ignored. We should note that procedural justice and substantive justice (which focuses on just outcomes) together constitute social justice in its fullest sense. Procedural justice is one of the components of social justice and, at the same time, plays an irreplaceable role insofar as it ensures that social justice can be actualized to the greatest extent possible and guarantees the stable operation and healthy development of society.

1 The Definition and Function of Procedural Justice

Procedural justice refers to the fundamental rules and procedural arrangements that should be followed in the formulation and implementation of laws, regulations, rules, and any other policies related to social justice. Social justice can be embodied in procedural justice in two ways: first, the rationale given in the formulation of laws, regulations, rules, and any other policies should be just; and second, the process itself should also be just.

In contrast to “substantive” justice (which focuses on the actual effects and outcomes), procedural justice focuses on the formal and “pure” rules of social justice. In a certain sense, procedural justice approximates an ideal social justice, rather than an actual one. As David Miller explains: procedural justice “is a rule or mechanism whereby one agent—an individual or an institution—assigns benefits (or burdens) to a number of others… An outcome, by contrast, refers to the state of affairs whereby at any time different individuals enjoy various resources, goods, opportunities, or entitlements” (Miller 1999). Procedural justice and substantive justice together constitute social justice in its fullest sense.

Procedural justice plays an irreplaceable role insofar as it ensures that social justice can be actualized to the greatest extent possible and guarantees the stable operation and healthy development of society. Its basic functions are as follows:

First, it helps to guarantee the fundamental rights of members of society. As part of society, every individual has a human “species-dignity” and certain prospects and potentials for development; they should therefore enjoy equal rights. “All human beings, or at least all citizens of a state or all members of a society should enjoy equal political and social statuses” (Marx and Engels 1995). The state has a responsibility and obligation to protect these rights. “The state must develop institutions and procedures, must plan, must mobilize resources as necessary to meet those claims.” Meanwhile, “society must provide some system of remedies to which individuals may resort to obtain the benefits to which they are entitled or be compensated for their loss” (Henkin 1990). The guarantee of the fundamental rights of members of society must be achieved through institutional arrangements. Verbal commitments, customary practices, and one-off interventions cannot effectively guarantee people’s basic rights. Procedural justice is an important aspect of the institutional arrangements necessary to guarantee these basic rights. Through equitable procedures, people can not only “protect against” potential infringements on their rights but also correct or remedy damage already done. Another point that should not be overlooked is the fact that, when a person infringes on the rights of others or of society itself—and when this infringement exceeds a certain “degree”—and must therefore be punished and deprived of certain fundamental rights, the state must also implement these punitive measures using equitable procedures, instead of dealing with each case at will. In this way, fundamental rights are protected from a different angle.

Second, procedural justice helps to coordinate the complexity of social interests. As modernization and the market economy advance, the degree of social differentiation becomes higher and higher, which is manifested as follows: the social division of labor grows more intricate, social specialization becomes more diverse, different social components increase, and the network of social interests becomes more complicated. As a result, the specific demands of various interest groups are bound to become more explicit and more diverse. On the other hand, social integration will also tend to increase, making it less and less possible for any interest group to exist independently from others. In order to construct a win-win situation, unnecessary friction and conflict between various interest groups in society must be reduced and social cooperation must be carried out effectively. Society therefore needs a mechanism that can coordinate and “arbitrate” the various demands made by different interest groups, and this mechanism must be impartial and equitable. Procedural justice provides the practical grounds for all interest groups within society, including the marginalized, to fully express themselves and negotiate with one another—premised on all following the necessary and equitable rules and procedures recognized by everyone involved—and, on this basis, all interest groups can accept the opinions and practices of the others. Perhaps a particular interest group clearly gains a “benefit.” If this benefit is the result of consultation and coordination, however, it can be acceptable to the other interest groups. Moreover, because this outcome was in accord with the requirements of procedural justice, it also signals that the reasonable interests of other groups will be guaranteed in the future. “Given the universal satisfaction of basic human needs, those procedures for producing and distributing goods are the best that best promote the common good, and there may be no clear and convincing criterion for the just distribution of ‘surplus goods’ other than the fair operation of those procedures, whichever they may be” (Feinberg 1973). Therefore, in the long term, procedural justice can effectively coordinate the complex network of social interests and prevent the dominant interest groups that control greater social and economic resources from influencing socioeconomic policies. In this way, it effectively promotes both social cooperation and social integration.

Third, procedural justice helps to restrict the improper interference of governmental power in matters of social justice. Originally, state power’s principal functions are oriented toward the overall interests of society, the safeguarding of social justice, and the promotion of public utilities. Rather than creating injustice or aggravating it, an important function of state power is the maintenance of social justice—as well as eliminating injustice and preventing it from appearing in the future. Sometimes, though, due to the excessive concentration of power or because the boundaries between authority and the self-interest of those in power are not clear enough, abuses can arise wherein authority is used to serve the interests of those who hold it. As a result, the government will be openly preferential toward certain interest groups in the formulation or implementation of relevant social justice policies, causing harmful consequences and damaging the public interest. Procedural justice can, to a great extent, limit the interference of authority in matters of social justice. Through means such as necessary public participation, professional consultation, division of labor, compartmentalization, and democratic decision-making—all placed within the scope of procedural justice—the formulation and implementation of relevant social justice policies can be ensured and the fusion of special interest groups with governmental power can be prevented. For example, in the field of law, due process serves this sort of purpose, preventing groups of legal professionals from engaging in inequitable practices: certain activities that carry privileges or possess an authoritative character are separated from the application of the law and are instead handed over to other agents or carried out jointly.

Fourth, it is helpful to reduce technical errors. Even if people are able to formulate and implement relevant laws and policies in accord with the basic idea of social justice, this is simply a necessary condition for ensuring a just outcome. It is not a sufficient condition and therefore cannot guarantee the just character of the result. We should note that procedural justice involves many technical and operational components, all of which are very important. Without these, procedural justice will remain incomplete. Arbitrary and blind decisions will be unavoidable, leading to inefficiency or ineffectiveness or, in severe cases, even generating negative social outcomes. In sharp contrast to traditional society, modern society raises the technical requirements for procedural justice. For example, the complete collection, collation, and disclosure of relevant information, the feedback and correction mechanisms necessary for the implementation of relevant policies, and the calculation of fair amounts for the allocation or loss of certain resources are all indispensable components of a complete procedural justice. Obviously, through accurate and public requirements, procedural justice can reduce technical errors that may arise in the formulation and implementation of relevant policies, maximizing the equity of outcomes to the greatest extent possible.

Fifth, it is helpful to cultivate universal recognition and trust among members of society. Procedural justice also bears the weight of individuals’ expectations for social justice. It has the greatest probability of ensuring that social justice is realized. Although procedures can’t guarantee that each concrete outcome is just, it can guarantee that most are while also leaving room for certain injustices to be corrected. In a sense, people value procedural justice as much as the justice of outcomes themselves (substantive justice). “Procedural justice is a value standing over and above the justice of the results it achieves, and we can best understand this distinct quality of procedures as involving a respect for the people who are subject to them… This idea that procedural justice has a value that is not merely instrumental finds support in studies of popular opinion, which have found that people’s reactions to distributive practices are conditioned more strongly by the procedures that are used to reach the outcomes than by the outcomes themselves; even if a person does quite badly in the final result, provided that it is arrived at by methods that match her standards of fairness, she will accept the outcome as a legitimate one” (Miller 1999). Only through procedural justice can people feel that justice is possible across society in general. Therefore, once procedural justice becomes an organic part of society, individuals will more easily adopt the generally accepted attitude toward society, and a sort of universal trust can take shape. This kind of recognition and trust can help to reduce the barriers and conflicts that arise between social groups, reduce the factors that generate social unrest, and contribute to the secure operation and healthy development of society overall.

In summary, procedural justice plays an irreplaceable role in the realization of social justice and, subsequently, in the secure operation and healthy development of society. This role might be better explained from another angle: What does it mean to lack procedural justice? If a society does not possess procedural justice, the universal recognition and trust of individuals will rapidly decline, the interference of authority in social justice will be inevitable, a large number of technical errors will arise in the process of realizing social justice, people’s fundamental rights will not be effectively guaranteed, and the complex network of social interests will be difficult to coordinate. Under such conditions, any laws or policies that are formulated will be random and uncertain and may even pose a threat to members of society. As Nozick argues: “The person who uses an unreliable procedure, acting upon its result, imposes risks upon others, whether or not his procedure misfires in a particular case.” For example, “no one has a right to use a relatively unreliable procedure in order to decide whether to punish another. Using such a system, he is in no position to know that the other deserves punishment; hence he has no right to punish him” (Nozick 1974).

2 The Basic Fundamental Characteristics of Procedural Justice

Procedural justice in the modern sense has the following fundamental characteristics:

First, it is universal. In traditional society, an unambiguous distinction existed between powerful and marginalized social groups. Groups with powerful vested interests tended to shape the formation of all laws, regulations, and policies according to their own preferences, protecting and expanding their interests by encroaching on or depriving the interests of others. The basic dignity and interests of most members of society and marginalized social groups could not be effectively guaranteed. They also found themselves in an extremely disadvantageous position when confronting questions of justice. In modern society, basic values such as equality, freedom, and cooperation of human beings gradually come into being and grow more widely recognized, thereby becoming an organic part of society. Accordingly, procedural justice becomes fused with the fundamental values of equality, freedom, and cooperation. This basic value orientation is first and foremost reflected in inclusiveness. The purpose of justice is to protect the interests of all members of society and work toward their general benefit. The inclusivity of procedural justice requires that the dignity and interests of every member of society and every social group should not be guaranteed at the expense of others’ dignity or interests. As Rawls said, “All social values—liberty and opportunity, income and wealth, and the social bases of self-respect—are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage… social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all” (Rawls 1999a). Universality is the primary principle and cornerstone of procedural justice, tying together all of its segments.

Second, procedural justice is impartial. In a sense, this characteristic embodies the universality of procedural justice. Impartial treatment is the embodiment of individuals’ fundamental rights at the practical level. It carries at least two connotations. First, when handling similar matters, one ought to use a similar yardstick. If there is any difference, one ought to vary according to the facts of the case, rather than varying from person to person. What needs to be explained is that the main purpose of impartiality is to protect everyone’s fundamental and equal rights, not to create an egalitarian outcome. Since egalitarianism seeks to eliminate all differences, it denies not only the differences between people but also the differences between the facts of each case. The second connotation is similar to what the legal profession calls “impartial neutrality.” Those resolving disputes should remain neutral. Judges should not participate in disputes, they should be free from the influence of any individual or organization, and they should be impartial and unbiased. The results should not embody the interests of those resolving the dispute, who should not show preferential support or opposition toward either party. The impartiality of procedural justice requires the adoption of the measures necessary to implement the requisite regulatory system, which ensures that the parties who directly formulate and carry out policies are unable to orient policy around their own interests and preferences. This is necessary because any given social group is likely to emphasize the protection and expansion of its own interests. Moreover, even in the absence of such a problem, it is difficult for any social group to cast off the psychology of the “looking-glass self.” They will consciously or unconsciously take their own group as the standard, using it as the reference against which problems are appraised.

Third, procedural justice should involve multiple parties. Within modern legal practice, procedural law includes a “principle of participation.” “This principle is evidenced in the common notion of having one’s day in court. If one cannot participate, then one is denied one’s day in court. The principle contributes to dispute resolution, because parties that have been able to participate are more likely to accept a decision; although they might not agree with the decision, they are more likely to comply with it… One value underlying the principle is participation in decisions that significantly affect one’s life. One reasonably desires to at least be heard, to have one’s say, before decisions affecting one are made. Being permitted to participate also evidences others’ respect, that one is to be considered seriously” (Bayles 1987). This principle helps us understand the participatory character of procedural justice. In the process of making and implementing laws and important policies within traditional society, people’s participation and related channels of communication were extremely limited and, for many social groups (especially those at the bottom of society), participation and communication were out of the question altogether. With the advancement of democratization under modern society, a sense of participation has taken shape among the populace, and people have assumed the responsibility, ability, and desire to participate in the discussion and formulation of important social endeavors. Therefore, when formulating laws and important public policies, it is imperative that different parties be involved (especially from the relevant social groups) so that they can fully express their opinions and safeguard their own interests. For example, when formulating certain policies related to workers’ groups, farmers’ groups, or women’s groups—such as employment laws, unemployment protection policies, framer protection policies, or policies to protect women workers—representatives from these groups must be allowed to participate and express their opinions. Otherwise, the process will be unjust, and this will cause the relevant policies to lack the minimum “validity” (legitimacy). The impartiality of procedural justice not only demonstrates a certain kind of respect, making the laws and policies related to social justice easier for people to accept and thus increasing their feasibility, but can also prevent numerous abuses of procedure and improve the credibility of relevant institutions. Meanwhile, it is necessary to point out that special channels for participation and expression should be reserved for marginalized social groups so that their rights and interests can be effectively protected.

Fourth, procedural justice should be open. The formulation and implementation of social justice policies are all based on the premise that policymakers possess necessary information. It is worth noting that, for procedural justice, there remains the question of who “enjoys the benefits of” information. This involves a question of information symmetry. Social groups and individual members of society have equal rights to acquire information that concerns their personal interests. “Every individual does have the right that information sufficient to show that a procedure of justice about to be applied to him is reliable and fair (or no less so than other procedures in use) be made publicly available or made available to him. He has the right to be shown that he is being handled by some reliable and fair system. In the absence of such a showing he may defend himself and resist the imposition of the relatively unknown system. When the information is made publicly available or made available to him, he is in a position to know about the reliability and fairness of the procedure” (Nozick 1974). Symmetry in the acquisition of information is a necessary precondition of procedural justice. If there is information asymmetry wherein one party possesses all relevant information while the other party lacks it, then it will be difficult for groups and individuals to effectively participate in society and be treated impartially, making procedural justice an impossibility. Aside from this, one party will be able to cheat and mislead other social groups by monopolizing information. Therefore, to prevent such an asymmetry from taking shape, an effective method is to openly disclose all relevant information to society as a whole.

Fifth, procedural justice should be scientific. Since procedural justice ought to be just, effective, and stable, it also carries several technical requirements. This includes at least two dimensions: First is the sufficiency and accuracy of relevant information. “A fair procedure must attempt to uncover all the information that is relevant to the allocation being carried out. This is so even in cases in which a more peremptory approach can be shown to yield good results overall” (Miller 1999). Moreover, in the process of collecting information, data is transmitted through various nodes, and it is inevitable that it will suffer different degrees of distortion. In addition to this, even some of the most original information is not necessarily authentic and thus needs to be screened. Only by ensuring that information is sufficient and accurate can procedural justice possess a minimally factual basis. Otherwise, procedural justice is out of the question. The second dimension concerns the necessary mechanisms for evaluation and correction. Due to the complex diversity of actual society and peoples’ various limitations in comprehending this complexity, many key policies require gradual improvement, including improvements in their degree of equity. It is therefore necessary to evaluate the actual effect of a policy’s implementation, to analyze its shortcomings, and then to make necessary amendments to attain a relatively equitable and effective final state. In short, the scientific formulation and implementation of policies will help to ensure the timeliness and relative stability of procedural justice and, subsequently, help to enhance the credibility and authority of procedural justice as a whole.

3 The Relationship Between Procedural Justice and Substantive Justice

Procedural justice and substantive justice (the justice of outcomes) are inseparable. Procedural justice is the basic premise for and guarantee of substantive justice. In modern society, people’s need for procedural justice becomes especially urgent. Meanwhile, substantive justice is also the ultimate standard and goal of procedural justice. If it is divorced from substantive justice, then, procedural justice will lack practical significance and will have no final standard against which it can be tested. It is in this sense that “the justice of a procedure always depends (leaving aside the special case of gambling) on the justice of its likely outcome, or on substantive justice. Thus, procedural and substantive justice are connected and not separate” (Rawls 1999b).

When appraising the relationship between procedural and substantive justice, there will occasionally be an obvious bias wherein too much emphasis is placed on procedural justice, leading to a certain kind of “alienation.” For example, Rawls attached great importance to procedural justice, even to the extent that he took a position of “pure procedural justice.” Such a view admittedly has its rational elements. Moreover, it is quite enlightening for people to understand the importance of procedural justice, and this serves as a useful corrective to views in which only substantive justice is valued. However, Rawls’ “pure procedural justice” has largely gone too far toward the other extreme, such that procedural justice comes to appear as something that can separate itself from substantive justice and exist independently. To a certain extent, this causes procedural justice to lose both its foundation and its criteria for judgment. In real life, paying too much attention to procedural justice and neglecting substantive justice will cause many forms of malpractice. For example, some people have observed a tendency for US courts to exhibit “a pervasive concern for procedural niceties coupled with broad tolerance of substantive inhibitions on freedom.” Some scholars pointedly argue: “To rely on procedure alone to produce justice is the fallacy of modern liberalism. It has made possible the legality of totalitarian regimes such as Hitler’s” (Hayek 1987).

Although procedural justice and substantive justice (the justice of outcomes) are inseparable, procedural justice sometimes deviates from substantive justice (the justice of outcomes). “The fairness of the procedural rules is determined entirely by their conducibility in general to just results, but there is no guarantee that even the most fastidious adherence to the rules will lead to a just outcome in a given case” (Feinberg 1973). The main reasons for this are as follows:

First, there is cognitive bias. Although, when compared to the non-procedural approach, the procedural one is much more equitable, reasonable, and accurate, this is only true in terms of total probability, which does not mean that all policies formed through the procedure are necessarily equitable. It must be recognized that rational factors cannot prevail at all times and in all circumstances and that the judgment of the public or the majority cannot always be consistent with justice and rationality. Sometimes it is just the opposite, especially when it comes to the protection of minority interests. From the perspective of social psychology, noncognitive factors have great influence on people’s judgment. For example, when encountering certain widespread and controversial social issues, public sentiment and hyperbolic social discourse can endow the issue with a “halo effect” that exceeds the actual matter at hand. In such moments, policymakers may have to pander to psychology to make the policy acceptable for most people. This will inevitably have an adverse impact on the formulation and implementation of policies, and it will create variation in the actual application of procedural justice. Even in the absence of these adverse effects—speaking only of people’s judgment—certain forms of uncertainty nonetheless persist, such as insufficient or incomplete grasp of the relevant facts, deviations in peoples’ understanding of social justice, imprecise application of certain techniques, and so on, exerting a negative influence on procedural justice. “The procedure requires the person implementing it to make judgments about the people with whom he or she is dealing, but the judgments are subject to a degree of uncertainty, and so the outcome is not the one that the procedure was designed to produce” (Miller 1999).

Second, there are procedural intersections. Procedural justice in its entirety is made up of many concrete and multidimensional forms of procedural justice. However, due to society’s extreme complexity and the existence of uncertainty, these concrete forms of procedural justice must be able to solve specific problems in a targeted manner. It is therefore inevitable that each concrete form of procedural justice has its own regulations and standards, even within developed countries. But a problem arises here. Sometimes, it is difficult to achieve complete coordination and consistency between the different dimensions of procedural justice. Certain people, certain social groups, and certain matters will be confronted with more than one process for resolution, which will lead to inconsistency or even conflict between procedural justice and substantive justice. For example, it is now recognized that severe inequality exists between urban and rural areas in China. Compared with urban residents, those from rural areas are treated unfairly in matters of security, welfare, education, and mobility, and these are problems that must be addressed. However, it should also be noted that rural residents enjoy some “preferential” treatments in matters of family planning and land management rights. Therefore, if the issues of rural residents are completely resolved according to the standards of urban residents, this must be premised on the simultaneous cancellation of the “preferential” treatments enjoyed by those from rural areas. For example, in some developed countries, “consider what may happen when an unemployed person receiving cash benefits from a number of state sources decides to take a job. The classic case of a poverty trap arises because this previously unemployed person begins to receive income from an employer but simultaneously loses some or all of what he was getting from the state social security system; thus there is little financial advantage in working at what may be an unpleasant job. Both institutions have employed fair procedures, but the outcome, when the worker’s overall position is compared with that of his twin brother, who stayed unemployed, seems unjust to us” (Miller 1999).

Third, there is the relatively low degree of modernization and marketization within a given society. This reason is common in developing countries. In fact, in modern society, procedural justice has a necessary premise: the idea of social justice, an awareness of rules, and good social order must already prevail across society; otherwise, it will be difficult for procedural justice to be truly effective. “It is quite plausible for a reasonably well-ordered society, for with well-framed and decent democratic institutions, reasonable and rational citizens will enact laws and policies that would almost always be legitimate though not, of course, always just” (Rawls 1999b). If a society’s level of modernization and marketization is relatively low, the awareness of rules, including a sense of justice, has not yet taken root among individuals, at least insofar as the awareness of rules has not yet become widely recognized. Such a society lacks a minimum system of trust, and the populace has not yet formed modern ideas or practices of participation, nor has it formed an urgent sense of and need for communication. There may even be a lack of good social order, especially in societies that find themselves in periods of rapid transformation. Under such circumstances, while procedural justice may be standardized and modern in its design, since it is out of touch with the actual situation of society on the ground, an inevitable and obvious gap arises between “due” justice and “actual” justice. Procedural and substantive justice easily deviate from one another. In these conditions, procedural justice has not yet become customary. At the same time, the lack of a dedicated corps of professionals often results in procedural justice becoming more or less ineffective or even suffering deformation, thus reducing the credibility and authority of procedural justice to varying degrees. The populace is still used to solving problems by “super-procedural justice,” which is to say through traditional, impromptu, and non-procedural methods.

Fourth, there are cases in which the government has taken on too many tasks. The government is the public authority of society, and it has an unavoidable responsibility for public affairs. But, since procedural justice is directly related to public affairs, it is inevitable that a complicated situation will arise where the boundaries of public power are sometimes difficult to accurately identify, such that government power comes to interfere with procedural justice in an improper fashion. Sometimes, this is merely customary and involuntary, but it nonetheless objectively extends the government’s power into the field of procedural justice in an inappropriate manner. In other cases, this may occur for understandable reasons—for the sake of convenience (cost reduction), for example, or because some problems set to be solved by procedural justice intersect with or are proximate to matters of concern to the government, making it easy to overstep the boundary between the two in the regular course of operations. This can create a situation in which duties are usurped, adversely influencing the effective implementation of procedural justice. It is worth noting that the inappropriate intervention of state power in procedural justice is more apparent in developing countries because these countries are in a period of social transformation where many rules have not yet been established and many gaps exist between the rules that have been. Meanwhile, due to the insufficient degree of social specialization, the number of non-governmental organizations that have taken shape within the field of public affairs remains low, or those that have formed are unable to operate effectively, leaving a large space for the improper intervention of the government in matters of procedural justice. Furthermore, in developing countries there exists a period of time in which it remains difficult to thoroughly transform some of the customary practices of governmental organizations inherited from traditional society and in which the arbitrary deployment and extension of power still persists as a general attitude. For these reasons, it is more difficult for procedural justice to coincide with substantive justice (the justice of outcomes) in developing countries.