Liberty Matters

Procedural Justice and Constitutional Legitimacy


On the question of the validity of unjust laws, there is an epistemic problem: by what procedure does one conclude that a law is unjust? In this regard, I admit to having been influenced by George H. Smith’s Journal of Libertarian Studies article “Justice Entrepreneurship in a Free Market” (1979).[87] In that article, George’s aim was to refute my previous essay in which I adopted much the same stance as is being expressed here by others. I found -- and have publicly acknowledged -- George’s response to my arguments to be persuasive. And it planted the seed for a conception of procedural constitutional legitimacy that I identified in my earlier essays on Spooner in this forum and that I have defended elsewhere. 
In his article, George stated the problem this way:
I agree with Barnett that a Victim of invasion has the right to seek restitution from the Invader, and that the actual guiltof the Invader is the only germane issue (as far as the Victim is concerned). But Nozick raises an important issue of knowledge of guilt and its relation to the enforcement of justice. In adopting procedural rights, however, Nozick takes a wrong turn and fails to see the solution to his own problem. The important social relation that generates the whole question of reliable procedures is not that between the Victim and the Invader, but the relationship between the Victim and impartial Third Parties. It is for his own safety, to prevent violent Third Party intervention in his quest for restitution, that the Victim must concern himself with matters of legal procedure.
As he explains:
Before restitution can be accomplished,  ... several preliminary issues must be settled. Did a violation of rights occur? If so, who was responsible? And what was the extent of the responsibility? These matters of fact must be decided before the subject of restitution is germane, and they are the first priority of a court of justice.The first task of a court, therefore, is to settle an issue of knowledge: Did or did not the accused commit the crime charged against him? A court, as an arbiter of guilt and innocence, is the personification of epistemological standards. It represents the social application of epistemological procedures, whose purpose is to assess the rational basis for a given knowledge claim -- the charge of the plaintiff (the alleged Victim) against the defendant (the alleged Invader). The onus of proof is on the plaintiff to prove his case with certainty -- i.e. “beyond reasonable doubt” -- and the defendant is presumed innocent until proven otherwise.
George then poses the following thought experiment:
Now consider the same situation with the addition of a Third Party who is absent during Crusoe's theft. Suppose that Friday makes no attempt to inform the Third Party of Crusoe's deed, or that Friday charges Crusoe with the theft but provides no evidence to substantiate the allegation. (Crusoe, of course, denies the charge.) Friday proceeds to invade Crusoe's hut in an attempt to reclaim his coconuts (or the equivalent in value). Crusoe, in the meantime, screams that he is being aggressed against and solicits the aid of the Third Party to restrain Friday. The Third Party intervenes, using force to stop Friday.Friday, acting on his knowledge, is morally justified in seeking restitution. But the Third Party, acting on hisknowledge, is (as I shall argue) justified in coming to the "defense" of Crusoe, the apparent Victim. With the existence of a Third Party, Friday's act of restitution -- when no effort is made to enlighten the Third Party as to the circumstances -- becomes a high-risk activity. It exposes Friday to potential harm for which he has no legitimate redress. That is to say, if a Third Party, believing Friday to be the true Invader, injures him in the process of resisting his "invasive" act, Friday cannot then seek restitution from the Third Party. Friday's failure to provide public notice and proof of his claim against Crusoe, generates an inevitable clash between Friday and the Third Party --a clash, it must be noted, that Friday could have avoided but did not. The responsibility for this Third Party conflict, therefore, rests with Friday; and he undertakes private restitution against Crusoe at his own risk.From the potential conflict of Friday and the Third Party, there arises a need for a "public trial" to ascertain Crusoe's guilt or innocence. This trial is required not because of special "procedural rights" supposedly possessed by Crusoe (such as the "right to a fair trial"), but because this public demonstration of Crusoe's guilt is the only way to eradicate or minimize the potential conflict between Friday and a Third Party. By allowing the Third Party to examine the basis of Friday's allegation against Crusoe, with the opportunity for Crusoe to respond, it is possible to harmonize the knowledge of Friday (that Crusoe is guilty) with the knowledge of the Third Party, so that the Third Party can cooperate (or at least not interfere) with Friday's quest for restitution.The same principles apply to any society of three or more persons. Impartial Third Parties are not privy to the special experience of a Victim seeking restitution. Man's knowledge is limited -- he is not omniscient -- and individuals must act on the context of knowledge available to them. Friday may be a true Victim seeking restitution, but this fact may be inaccessible to others. Friday knows it, and Crusoe (presumably) knows it; but Third Parties do not. If Crusoe denies the charge of theft, and if Friday fails to substantiate it, then Third Parties are epistemologically obliged to view Friday as an Invader. Given their context of knowledge, there is no other rational option. 
He then stresses how procedures are needed to address the knowledge problem facing Third parties to any claim of injustice:
We must remember the purpose of public verification: it is not to justify the Victim's restitutive act morally, but to identify the kind of action he is taking. The potential misunderstanding between a Victim and Third Parties is factual, not evaluative. Violent acts do not bear external characteristics which enable one visually to distinguish between invasion and restitution. Invasion, for instance, may involve fraud without overt violence, in which case the Victim may be the first (and only) one to employ actual violence in his quest for restitution. The distinction between invasion and restitution can be drawn only with reference to property rights and property titles, and such particularized information is rarely accessible to Third Parties without deliberate effort.
The problem George identifies with respect to third-party judgments of individuals who are alleged Invaders applies to legislation writ large. Laws that violate the rights of those upon whom they are imposed are unjust wholesale invasions of rights. As such they are not obligatory. But there is still the issue of how to ascertain and establish their injustice. Just as a trial provides procedures by which to assess guilt and innocence to the satisfaction of third parties, a legitimate constitution provides procedures to assure the public that a legislature is not acting as an Invader, but is instead protecting the rights of the individuals who are the ultimate sovereign. The citizens are not omniscient, and have limited time to devote to the assessment of the justice or injustice of the laws imposed upon them. As with the inspection of their food supply for wholesomeness, they must delegate this assessment to a legal system. A legal system with procedures that are able to make this assessment reliably is what I am calling a “legitimate” one.
But just as trials are imperfect – innocent people are convicted, and guilty ones acquitted, -- so too are even legitimate lawmaking procedures. The question is whether the particular lawmaking procedures of a particular constitutional order are reliable enough to impart a defeasible duty to obey to the laws that are somehow adjudicated as just? The difference between the results of that adjudication, which create a prima facie duty of obedience, and the actual or underlying justice of each and every law is what I am calling “the gap.”
So I ask the others: how do they address the epistemological issue of ascertaining the justice of laws so individuals know which to obey and which to disobey? How do you respond to George Smith's defense of procedural justice?
[87.] George H. Smith, “Justice Entrepreneurship in a Free Market”, Journal of Libertarian Studies (vol. 3, no. 4, 1979). <>.