Due Process: Nomos XVIII

6. Procedural Fairness and Substantive Rights

6 PROCEDURAL FAIRNESS AND SUBSTANTIVE RIGHTS THOMAS C. GREY This essay is a rough attempt to sketch some of the general contours of the concept of procedural fairness. Procedural fairness is a concept in some respects broader and in others narrower than due process of law. On the one hand, norms of procedural fairness-a moral concept-"-apply to processes used in deciding nonlegal disputes. Thus a parent's decision of a dispute between children might violate notions of fair procedure if the parent listened to only one side of the dispute before deciding it. On the other hand, procedural fairness does not include those fundamental substantive rights which in our constitutional law are enforced in the name of due process-rights such as the freedoms of speech and religion insofar as they restrain state governments, or the rights of liberty and privacy usually characterized as aspects of substantive due process. In general, however, it seems clear that the basic core of what lawyers call "procedural due process" is formed around the popular conceptions of procedural fairness manifested in the common judgments of conventional morality. Of course, the legal doctrines of due process are far more detailed, ramified and precise than are 182 Procedural Fairness and Substantive Rights 183 lay notions of fair procedure. But where the law of due process departs from the broad outlines of the morality of procedural fairness, producing results strongly contrary to widely shared intuitive judgments, it seems right to presume that it has gone astray. I Procedural fairness has both a loose and a strict sense. In its loose sense, the term includes certain rules and principles applicable to dispute-settling procedures that are designed to protect substantive rather than procedural values. I have in mind examples such as these: the criminal defendant's privilege not to testify; the rule excluding from evidence a priest's testimony about a penitent's confession; the rules prohibiting the use of evidence extracted by physical or psychological abuse; and rules prohibiting or restraining the use of evidence obtained by invasions of privacy or trespasses. These are not rules and principles of procedural fairness in the strict sense in which I shall use the term in this paper. They are procedural standards only in that their primary (or sole) application is to dispute-settling procedures. Unlike rules and principles of procedural fairness in the strict sense, they are not aimed at producing more accurate or fair decisions of those disputes. They are rather designed to protect various substantive rights and interests from the invasions to which they would be subject if the strictly procedural aims of correct fact-finding and rule-applying were pursued single-mindedly (or subject only to prudential constraints of cost). These rules of due process (in the loose sense) may very often clash with values of strict procedural fairness. The point can perhaps be seen most clearly when a criminal defendant might be exculpated by a priest's testimony about matters revealed to him in someone else's confession. Here the principle that a defendant must have compulsory process to compel relevant testimony in his favor (a principle of procedural fairness in the strict sense) clashes with the priest-penitent privilege (a principle of due process in the loose sense-substantive due process, I should say, based on values of privacy and religious freedom).! I believe that procedural fairness lends itself to coherent analysis 184 THOMAS C. GREY as a single concept only if it is taken in the strict sense. This is so because in its looser sense it encompasses all the substantive rights which may be threatened in the pursuit of accurate and correct adjudication of disputes. Yet there is no limit in principle to the number and variety of such potentially threatened substantive rights. In the case of each of them, the considerations favoring their protection in the procedural context will be essentially the same as those favoring their protection generally. If procedural fairness were given so broad a sense, it would thus embrace all conceivable substantive moral and legal rights, and there could be no prospect of giving it intelligible consideration as a separate and finite concept on its own account.2 II The rules and principles of procedural fairness (in the narrow sense) all are designed to promote the correct decision of disputes.3 All of them tend to ensure that facts will be found more accurately...