Devising Procedures that are Civil to Promote Justice that is Civilized

In a democracy, process is king to a very large extent, and this is especially so in the judicial branch. Even though substantive laws command attention, procedural rules ensure respect. Why is this true? One powerful reason is that when people end up in court, their case typically is not a matter of right against wrong, but of right against right. Decent process makes the painful task of deciding which party will prevail bearable and helps make the decision itself acceptable.

To put my position plainly, I believe that the road to court-made justice is paved with good procedures. Later on we shall have a look at what I mean by “good.” For now, it is enough to note that procedures cannot be “good” or “bad” in isolation, without relation to their context. They must be viewed as part of an enlightened system of judicial administration, criminal and noncriminal. They must fit into a whole. The law may in some sense be a seamless web, but in the administration of justice separations are necessary and must be recognized. Some lines must demarcate the spheres of courts and some must demarcate the spheres of other agencies of justice, such as legislatures, official boards, or even private entities. One of today’s problems is that the seams are not showing clearly enough. To devise better court procedures, we must at some point determine what special role courts-in contrast to other agencies-can most usefully play in delivering justice to the people. This definitional process will help us know which quarrels and conflicts courts ought to countenance and which they should leave to other social instrumentalities.