WHY PROCEDURAL JUSTICE DOES NOT EXIST

D. M. Mitrović

Аннотация


Since the middle of the last century the interest in the naturally-legal research has been restored, and then intensified. At that time, there appeared new concepts advocating for the existence of different types of justice (corporate, solidarity, organisational, international, etc.) including procedural justice. The best-known advocates of the concepts of the existence of procedural justice were J. Rawls and O. Höffe, and later L. Fuller, H. Hart, R. Dworkin, P. Koller, M. Van den Bos and others. However, the aim of this work is not to support the idea of the existence of procedural justice suggested by the above writers, but rather to challenge it. This will be shown by referring to the obvious: justice is synonymous with truth, and not with rightness, on which the above writers develop the concept of procedural justice. Truthfulness is related to what exists, and rightness to the proper and accurate performance of appropriate
procedures. Otherwise, founding of procedural justice in truthfulness would be a kind of contradictio in adjecto arising from the confusion between justice and procedurality. The two terms are related but not similar, therefore truthfulness and rightness do not coincide, and nor do justice and law. Something that is truthful need not be righteous. And vice versa, something that is righteous need not be truthful. Apparently, it has to do with the relationship between the objective (truthfulness, justice and fairness) and the means (rightness, correctness, accuracy, reliability, etc., in a word, solidity). This relationship between truthfulness and rightness depicts rightness , first of all, as the means of the proper application of law, and only after that as the means of possible achievement of fairness in law. Of justice therein can be no mention. The aforesaid relationship shows another thing: only substantive legal rules can be just, while this cannot be the case with procedural rules. The consideration of the relationship of truthfulness and rightness in the example of the actually existing justice and the actually non-existent procedural justice, raises yet another important question: the relationship between material (substantive) and formal (procedural) legal rules. As it is rendered impossible to clearly and fully delineate them, thus are substantive rules relating to procedures declared the procedural, and all that only to acquire for procedural rules and positive law the aureole of justice. This cannot be accepted as correct because, for example, the principle of impartiality or the principle of fairness, which are wrongly considered procedural, indeed belong to substantive law. In still a deeper shade lies the question of the relationship between natural law and positive law. It seems that the insistence on the existence of procedural justice can be
regarded as the belated response of the members of positivist jurisprudence. Strange enough, that the existence of procedural justice is advocated by the writers who originally belonged to the direction of naturally-legal jurisprudence. It seems that both the former and the latter aim at showing positive law as just. Only in this case, it is not a construct but a simulacrum. It must be hard to believe in any authority as truth instead in truth as the only authority. Between the truthfulness of justice and the rightness of procedure lies fairness as the place of occasional meeting of justice and procedure. Therefore, procedural justice does not exist, but justice exists, though it is not procedural, and nor is fairness. Procedure is the only righteous means of law, but law is not the only righteous means of justice.


Ключ. слова


justice, fairness, truthfulness, rightness, procedural law, procedural justice.

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DOI: http://dx.doi.org/10.18287/2542-047X-2018-4-1-7-15

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