Two Conceptions of Procedural Fairness

Abstract

Legal systems must proceed in the face of two conceptions of procedural fairness. The first, embodied in the rule of law ideal, calls for clear rules, laid down in advance and susceptible to mechanical application in individual cases. The second calls for a high degree of individuation, on the theory that fairness requires particularized consideration of the whole person. Both conceptions can be found in judicial interpretation of the due process clause of the American Constitution, which sometimes requires rule-bound decisions, and sometimes requires individuation. Both conceptions have a great deal of appeal in particular settings. The choice between the two depends largely on an investigation of the costs of decision and the costs of error. In addition, "planning costs" play a large role; where people need to be able to plan in advance, rule-bound judgments look fairer and much more attractive even if they produce significant unfairness and arbitrariness.