Defining justice

4.1 Distributive and commutative justice

Justice is commonly thought to have two applications which Aristotle distinguished as ‘distributive’ and
‘commutative’ justice. The first, distributive justice, is concerned with the distributions of things (rights,
goods, services and so on) among a class of individuals.

What is distributive justice?

A principle of distributive justice specifies how things such as rights, goods and well-being should be
distributed among a class of people.

The root idea of distributive justice, according to Aristotle, is that of ‘treating equals equally’.
Nevertheless, it is far from simple to specify what this means. Who are the relevant equals? The
members of this class might be the individuals of a given political community, the many political
communities that make up the world, or even all the individuals in the world. And what is involved in
treating people equally? That they all have the same rights, that they all achieve a minimum standard of
living?

The second form of justice, commutative justice, is about the treatment of an individual in a particular
transaction – it is about giving someone what he or she deserves or has a right to. According to Plato, it
is about giving each person their due. An example, often referred to as retributive justice, might be the
redress someone is due for a wrong suffered, or the punishment due for an offence committed. Notions
of desert and of what people have a right to are also complicated.

What is commutative justice?

A principle of commutative justice specifies how individuals should be treated in a given class of actions
and transactions.

Thus, like ‘rights’, the term ‘justice’ is a ‘contested concept’, one whose meaning is never completely
fixed or finally closed and agreed upon. This contestability and flexibility of outcome is what Aristotle
referred to when he said that ‘justice is the mean (middle) point between conflicting claims’. This view
believes that each society (or group within it) will have its own definition of justice and rights, and those
definitions cannot (and perhaps should not) be reconciled. Each society (or group) will have its own
ideas about justice and rights, and its own practices for implementing them. Such concepts are
inevitably conflictual, contestable and politically charged.
Consequently, as a matter of retributive justice, for example, the legal system in the UK no longer
upholds capital punishment, but it is an important part of the legal codes of a range of US states.
Another instance from the sphere of distributive justice is that liberal societies (which hold that, in
principle, maximising the scope of individual freedom takes priority over developing and politically
implementing a shared view of the good life of the community) take the view that justice involves
allowing individuals to have the largest possible amount of freedom so that they have the widest scope
for their own choices.

By contrast, some societies with different cultural and political traditions see distributive justice in terms
of the needs of the collective body of members, thereby tempering individual rights. For instance, free
speech is a valued right in the American Constitution, but the prohibition to deny the Holocaust in
Germany is important to the political identity of that country.

It is part of the contestability of concepts such as justice and rights that the definitions of these terms
shift over time, and the process by which this change occurs involves a debate between different
normative (value-laden) positions. Therefore, capital punishment used to be practised in the UK as an
important form of retribution, and although a majority of UK citizens still support capital punishment, it
is no longer held by Parliament to be morally justifiable and does not form part of the legal code. A
further example of reforms in rights and justice under the impact of changing social values is a much
stronger emphasis on the idea of children’s rights than there was even 20 years ago.

‘Justice’, then, is a term that refers to society and its political arrangements as a whole. One way of
describing the relation between rights and justice is to say that rights recognise everyone as, in a
fundamental sense, the same, whereas justice accommodates the fact that we, while living together, are
all different.

Distributive justice concerns the socially just allocation of resources, goods, opportunity in a society. It is
concerned with how to allocate resources fairly among members of a society, taking into account factors
such as wealth, income, and social status. Often contrasted with just process, which is concerned with
the administration of law, distributive justice concentrates on outcomes. This subject has been given
considerable attention in philosophy and the social sciences. Theorists have developed widely different
conceptions of distributive justice. These have contributed to debates around the arrangement of social,
political and economic institutions to promote the just distribution of benefits and burdens within a
society. Most contemporary theories of distributive justice rest on the precondition of material scarcity.
From that precondition arises the need for principles to resolve competing interest and claims
concerning a just or at least morally preferable distribution of scarce resources.[1]
In social psychology, distributive justice is defined as perceived fairness of how rewards and costs are
shared by (distributed across) group members.[2] For example, when some workers work more hours
but receive the same pay, group members may feel that distributive justice has not occurred. To
determine whether distributive justice has taken place, individuals often turn to the behavioral
expectations of their group.[2] If rewards and costs are allocated according to the designated
distributive norms of the group, distributive justice has occurred.[3

Types of distributive norms

Five types of distributive norm are defined by Donelson R. Forsyth:[2]

Equality: Regardless of their inputs, all group members should be given an equal share of the
rewards/costs. Equality supports that someone who contributes 20% of the group’s resources should
receive as much as someone who contributes 60%.

Equity: Members’ outcomes should be based upon their inputs. Therefore, an individual who has
invested a large amount of input (e.g. time, money, energy) should receive more from the group than
someone who has contributed very little. Members of large groups prefer to base allocations of rewards
and costs on equity.

Power: Those with more authority, status, or control over the group should receive more than those in
lower level positions.

Need: Those in greatest needs should be provided with resources needed to meet those needs. These
individuals should be given more resources than those who already possess them, regardless of their
input.

Responsibility: Group members who have the most should share their resources with those who have
less.

Theories of distributive justice

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The listed theories below are three of the most prominent Anglo-American theories within the field.[4]
With this in mind, the list is in no way to be considered exhaustive for distributive justice theory.

Justice as fairness

Edit
In his book A Theory of Justice, John Rawls outlines his famous theory about justice as fairness. The
theory consists of three core components:[5]

The equality of people in rights and liberties;

The equality of opportunities for all; and

An arrangement of economic inequalities focused on benefit maximisation for those who are least
advantaged.

The just ‘basic structure’

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Building a modern view on social contract theory, Rawls bases his work on an idea of justice being
rooted in the basic structure, constituting the fundamental rules in society, which shape the social and
economic institutions, as well as the governance.[6] This basic structure is what shapes the citizens’ life
opportunities. According to Rawls, the structure is based on principles about basic rights and duties that
any self-interested, rational individual would accept in order to further his/her own interests in a
context of social cooperation.[6]

The original position

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Main article: Original position

Rawls presents the concept of an original position as a hypothetical idea of how to establish “a fair
procedure so that any principles agreed on will be just.”[7] In his envisioning of the original position, it is
created from a judgement made through negotiations between a group of people who will decide on
what a just distribution of primary goods is (according to Rawls, the primary goods include freedoms,
opportunities, and control over resources).[8] These people are assumed to be guided by self-interest,
while also having a basic idea of morality and justice, and thus capable of understanding and evaluating
a moral argument.[8] Rawls then argues that procedural justice in the process of negotiation will be
possible via a nullification of temptations for these people to exploit circumstances so as to favor their
own position in society.[7]

Veil of ignorance

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Main article: Veil of ignorance

This nullification of temptations is realised through a veil of ignorance, which these people will be
behind. The veil prevents the people from knowing what particular preferences they will have by
concealing their talents, objectives, and, most importantly, where in society they themselves will end
up. The veil, on the other hand, does not conceal general information about the society, and the people
are assumed to possess societal and economic knowledge beyond the personal level.[9] Thereby, such
veil creates an environment for negotiations where the evaluation of the distribution of goods is based
on general considerations, regardless of place in society, rather than biased considerations based on
personal gains for specific citizen positions.[7] By this logic, the negotiations will be sensitive to both
those who are worst off, given that a risk of being in that category yourself will incentivize protection of
these people, but also the rest of society, as one would not wish to hinder maximal utilisation for these
in case you would end up in higher classes.

Basic principles of a just distribution

Edit

In this original position, the main concern will be to secure the goods that are most essential for
pursuing the goals of each individual, regardless of what this specific goal might be.[10] With this in
mind, Rawls theorizes two basic principles of just distribution.

The first principle, the liberty principle, is the equal access to basic rights and liberties for all. With this,
each person should be able to access the most extensive set of liberties that is compatible with similar
schemes of access by other citizens. Thereby, it is not only a question of positive individual access but
also of negative restrictions so as to respect others’ basic rights and liberties.[5]

The second principle, the difference principle, addresses how the arrangement of social and economic
inequalities, and thus the just distribution should look. Firstly, Rawls argues that such distribution should
be based on a reasonable expectation of advantage for all, but also to the greatest benefit of the least
advantaged in society. Secondly, the offices and positions attached to this arrangement should be open
to all.[5]

These principles of justice are then prioritised according to two additional principles:[5]

The principles of the priority of liberty, wherein basic liberties only can be restricted if this is done for
the sake of protecting liberty either:

By strengthening “the total system of liberties shared by all;” or

If a less than equal liberty is acceptable to those who are subject to this same lesser liberty.

Inequality of opportunity, and the priority of efficiency & welfare, can only be acceptable if:

It enhances “the opportunities of those with lesser opportunities” in society; and/or

Utilitarianism

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Main article: Utilitarianism

In 1789, Jeremy Bentham published his book An Introduction to the Principles of Morals and Legislation.
Centred on individual utility and welfare, utilitarianism builds on the notion that any action which
increases the overall welfare in society is good, and any action that decreases welfare is bad. By this
notion, utilitarianism’s focus lies with its outcomes and pays little attention to how these outcomes are
shaped.[11] This idea of utilisation maximisation, while being a much broader philosophical
consideration, also translates into a theory of justice.[12]

Conceptualising welfare

Edit

While the basic notion that utilitarianism builds on seems simple, one major dispute within the school of
utilitarianism revolved around the conceptualisation and measurement of welfare.[11] With disputes
over this fundamental aspect, utilitarianism is evidently a broad term embracing many different sub-
theories under its umbrella, and while much of the theoretical framework transects across these
conceptualisations, using the different conceptualisation have clear implications for how we understand
the more practical side of utilitarianism in distributive justice.

Bentham originally conceptualised this according to the hedonistic calculus, which also became the
foundation for John Stuart Mill’s focus on intellectual pleasures as the most beneficial contribution to
societal welfare.[11] Another path has been painted by Aristotle, based on an attempt to create a more
universal list of conditions required for human prosperity.[13] Opposite this, another path focuses on a
subjective evaluation of happiness and satisfaction in human lives.[14]

Egalitarianism

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Main article: Egalitarianism

Based on a fundamental notion of equal worth and moral status of human beings,[15] egalitarianism is
concerned with equal treatment of all citizens in both respect and in concern, and in relation to the
state as well as one another.[16] Egalitarianism focuses more on the process through which distribution
takes place, egalitarianism evaluates the justification for a certain distribution based on how the society
and its institutions have been shaped, rather than what the outcome is.[14] Attention is mainly given to
ways in which unchosen person circumstances affect and hinder individuals and their life opportunities.
[16] As Elizabeth Anderson defines it, “the positive aim of egalitarian justice is…to create a community in
which people stand in relation of equality to others.”[17]

The main issue with egalitarian conceptions of distributive justice is the question concerning what kind
of equality should be pursued. This is because one kind of equality might imply or require inequality of
another kind.[18] Strict egalitarianism, for instance, requires the equal allocation of material resources
to every person of a given society.[19] The principle of strict equality therefore holds that even if an
unequal distribution would make everyone better off, or if an unequal distribution would make some
better off but no one worse off, the strictly egalitarian distribution should be upheld. This notion of
distributive justice can be critiqued because it can result in Pareto suboptimal distributions. Thus, the
Pareto norm suggests that principles of distributive justice should result in allocations in which it is no
longer possible to make anyone better off without making anyone else worse off. [20] This illustrates a
concern for the equality of welfare, which is an ex post conception of equality as it is concerned with the
equality in outcomes. This conception has been critiqued by those in favour of ex ante equality, that is
equality in people´s prospects, which is captured by alternative conceptions of equality such as those
that demand equality of opportunity.[18]

While much academic work distinguishes between luck egalitarianism and social egalitarianism, Roland
Pierik presents a synthesis combining the two branches.[16] In his synthesis, he argues that instead of
focusing on compensations for unjust inequalities in society via redistribution of primary goods,
egalitarianism scholars should instead, given the fundamental notion upon which the theory is built,
strive to create institutions that creates and promotes meaningful equal opportunities from the get-go.
Pierik thus moves egalitarianism’s otherwise reactive nature by emphasising a need for attention to the
development of fundamentally different institutions that would eradicate the need for redistribution
and instead focus on the initial equal distribution of opportunities from which people then themselves
be able to shape their lives.[16]

Wikipedia

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A Theory of Justice

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For the musical comedy, see A Theory of Justice: The Musical!

A Theory of Justice is a 1971 work of political philosophy and ethics by the philosopher John Rawls
(1921–2002) in which the author attempts to provide a moral theory alternative to utilitarianism and
that addresses the problem of distributive justice (the socially just distribution of goods in a society). The
theory uses an updated form of Kantian philosophy and a variant form of conventional social contract
theory. Rawls’s theory of justice is fully a political theory of justice as opposed to other forms of justice
discussed in other disciplines and contexts.

A Theory of Justice

The resultant theory was challenged and refined several times in the decades following its original
publication in 1971. A significant reappraisal was published in the 1985 essay “Justice as Fairness” and
the 2001 book Justice as Fairness: A Restatement in which Rawls further developed his two central
principles for his discussion of justice. Together, they dictate that society should be structured so that
the greatest possible amount of liberty is given to its members, limited only by the notion that the
liberty of any one member shall not infringe upon that of any other member. Secondly, inequalities –
either social or economic – are only to be allowed if the worst off will be better off than they might be
under an equal distribution. Finally, if there is such a beneficial inequality, this inequality should not
make it harder for those without resources to occupy positions of power – for instance, public office.[1]

Objective

Edit

In A Theory of Justice, Rawls argues for a principled reconciliation of liberty and equality that is meant to
apply to the basic structure of a well-ordered society.[2] Central to this effort is an account of the
circumstances of justice, inspired by David Hume, and a fair choice situation for parties facing such
circumstances, similar to some of Immanuel Kant’s views. Principles of justice are sought to guide the
conduct of the parties. These parties are recognized to face moderate scarcity, and they are neither
naturally altruistic nor purely egoistic. They have ends which they seek to advance but prefer to advance
them through cooperation with others on mutually acceptable terms. Rawls offers a model of a fair
choice situation (the original position with its veil of ignorance) within which parties would
hypothetically choose mutually acceptable principles of justice. Under such constraints, Rawls believes
that parties would find his favoured principles of justice to be especially attractive, winning out over
varied alternatives, including utilitarian and right-wing libertarian accounts.

The "original position”

Edit

Main article: Original position

[N]o one knows his place in society, his class position or social status, nor does anyone know his fortune
in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even
assume that the parties do not know their conceptions of the good or their special psychological
propensities. The principles of justice are chosen behind a veil of ignorance.

According to Rawls, ignorance of these details about oneself will lead to principles that are fair to all. If
an individual does not know how he will end up in his own conceived society, he is likely not going to
privilege any one class of people, but rather develop a scheme of justice that treats all fairly. In
particular, Rawls claims that those in the Original Position would all adopt a maximin strategy which
would maximize the prospects of the least well-off:

They are the principles that rational and free persons concerned to further their own interests would
accept in an initial position of equality as defining the fundamentals of the terms of their association.[3]

Rawls bases his Original Position on a “thin theory of the good” which he says “explains the rationality
underlying choice of principles in the Original Position”. A full theory of the good follows after we derive
principles from the original position. Rawls claims that the parties in the original position would adopt
two such principles, which would then govern the assignment of rights and duties and regulate the
distribution of social and economic advantages across society. The difference principle permits
inequalities in the distribution of goods only if those inequalities benefit the worst-off members of
society. Rawls believes that this principle would be a rational choice for the representatives in the
original position for the following reason: Each member of society has an equal claim on their society’s
goods. Natural attributes should not affect this claim, so the basic right of any individual, before further
considerations are taken into account, must be to an equal share in material wealth. What, then, could
justify unequal distribution? Rawls argues that inequality is acceptable only if it is to the advantage of
those who are worst-off.

The agreement that stems from the original position is both hypothetical and ahistorical. It is
hypothetical in the sense that the principles to be derived are what the parties would, under certain
legitimating conditions, agree to, not what they have agreed to. Rawls seeks to use an argument that
the principles of justice are what would be agreed upon if people were in the hypothetical situation of
the original position and that those principles have moral weight as a result of that. It is ahistorical in the
sense that it is not supposed that the agreement has ever been, or indeed could ever have been, derived
in the real world outside of carefully limited experimental exercises.
The principles of justice

Edit

Rawls modifies and develops the principles of justice throughout his book. In chapter forty-six, Rawls
makes his final clarification on the two principles of justice:

1. Each person is to have an equal right to the most extensive total system of equal basic liberties
compatible with a similar system of liberty for all.[4]

2. Social and economic inequalities are to be arranged so that they are both:

(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b) attached to offices and positions open to all under conditions of fair equality of opportunity.[4]

The first principle is often called the greatest equal liberty principle. Part (a) of the second principle is
referred to as the difference principle while part (b) is referred to as the equal opportunity principle.[1]

Rawls orders the principles of justice lexically, as follows: 1, 2b, 2a.[4] The greatest equal liberty principle
takes priority, followed by the equal opportunity principle and finally the difference principle. The first
principle must be satisfied before 2b, and 2b must be satisfied before 2a. As Rawls states: “A principle
does not come into play until those previous to it are either fully met or do not apply.”[5] Therefore, the
equal basic liberties protected in the first principle cannot be traded or sacrificed for greater social
advantages (granted by 2(b)) or greater economic advantages (granted by 2a).[6]

The greatest equal liberty principle

Edit

Each person is to have an equal right to the most extensive total system of equal basic liberties
compatible with a similar system of liberty for all (1).[4]

The greatest equal liberty principle is mainly concerned with the distribution of rights and liberties.
Rawls identifies the following equal basic liberties: “political liberty (the right to vote and hold public
office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of
the person, which includes freedom from psychological oppression and physical assault and
dismemberment (integrity of the person); the right to hold personal property and freedom from
arbitrary arrest and seizure as defined by the concept of the rule of law.”[7]
It is a matter of some debate whether freedom of contract can be inferred to be included among these
basic liberties: “liberties not on the list, for example, the right to own certain kinds of property and
freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not
protected by the priority of the first principle.”.[8]

The difference principle

Edit

Social and economic inequalities are to be arranged so that they are (a) to the greatest benefit of the
least advantaged members of society, consistent with the just savings principle (2a).[4]

Rawls’ claim in (a) is that departures from equality of a list of what he calls primary goods—“things
which a rational man wants whatever else he wants”[9] are justified only to the extent that they
improve the lot of those who are worst-off under that distribution in comparison with the previous,
equal, distribution. His position is at least in some sense egalitarian, with a provision that inequalities are
allowed when they benefit the least advantaged. An important consequence of Rawls’ view is that
inequalities can actually be just, as long as they are to the benefit of the least well off. His argument for
this position rests heavily on the claim that morally arbitrary factors (for example, the family one is born
into) should not determine one’s life chances or opportunities. Rawls is also oriented to an intuition that
a person does not morally deserve their inborn talents; thus, that one is not entitled to all the benefits
they could possibly receive from them; hence, at least one of the criteria which could provide an
alternative to equality in assessing the justice of distributions is eliminated.

Further, the just savings principle requires that some sort of material respect is left for future
generations. Although Rawls is ambiguous about what this means, it can generally be understood as “a
contribution to those coming later”.[10]

The equal opportunity principle

Edit

Social and economic inequalities are to be arranged so that they are (b) attached to offices and positions
open to all under conditions of fair equality of opportunity (2b).[4]

The stipulation in 2b is lexically prior to that in 2a. This is because equal opportunity requires not merely
that offices and positions are distributed on the basis of merit, but that all have reasonable opportunity
to acquire the skills on the basis of which merit is assessed, even if one might not have the necessary
material resources – due to a beneficial inequality stemming from the difference principle.

It may be thought that this stipulation, and even the first principle of justice, may require greater
equality than the difference principle, because large social and economic inequalities, even when they
are to the advantage of the worst-off, will tend to seriously undermine the value of the political liberties
and any measures towards fair equality of opportunity.

This article is about the 1985 essay. For the 2001 book version, see Justice as Fairness: A Restatement.

“Justice as Fairness: Political not Metaphysical” is an essay by John Rawls, published in 1985.[1] In it he
describes his conception of justice. It comprises two main principles of liberty and equality; the second is
subdivided into fair equality of opportunity and the difference principle.

Rawls arranges the principles in “lexical priority,” prioritizing in the order of the liberty principle, fair
equality of opportunity and the difference principle. This order determines the priorities of the
principles if they conflict in practice. The principles are, however, intended as a single, comprehensive
conception of justice—“Justice as Fairness”—and not to function individually. These principles are
always applied so as to ensure that the “least advantaged” are benefitted and not hurt or forgotten.

Rawls originally presented the theory in his 1971 book A Theory of Justice, subsequently expanding
upon several of its themes in his later book titled Political Liberalism.

First principle: the liberty principle

Edit

The first and most important principle is that everyone has the same rights as fundamental freedoms.
Rawls argued that “certain rights and freedoms are more important or fundamental “than others.”[2]
For example, Samuel Freeman argues, Rawls believes that “personal property”—personal belongings, a
home—constitutes a basic liberty, but an absolute right to unlimited private property is not.[3] As a
fundamental freedom, these rights are inviolable. The government must not alter, violate or remove
such rights from individuals.[4] Thomas Mertens says Rawls believes that the principles of society are
chosen by representative citizens on “fair” terms.[5]

Rawls articulates the liberty principle as the most extensive basic liberty compatible with similar liberty
for others in A Theory of Justice; he later amended this in Political Liberalism, stating instead that “each
person has an equal claim to a fully adequate scheme of equal basic rights and liberties”.[6]

Second principle: the equality principle

Edit
The principle is part of justice that established distributive justice. Rawls awards the fair equality of
opportunity principle lexical priority over the difference principle: Society cannot adjust inequality to
maximize the proportion of those who are most vulnerable without providing positions and the
opportunities that are necessary for the worse-off to achieve them.

Fair equality of opportunity

Edit

This principle maintains that “offices and positions”[7] have to be open to all, regardless of their social
background, caste or gender. This principle is stronger than “formal equality of opportunity.” Rawls
argues that human potential should not only be a “right,” but also an “effective” equal opportunity.[8]

Difference principle

Edit

The difference principle regulates inequalities: it permits only inequalities that work to the advantage of
the worst-off. This is often misinterpreted as trickle-down economics; Rawls’ argument is more
accurately expressed as a system where wealth “diffuses up”.[9] By guaranteeing the worst-off in society
a fair deal, Rawls compensates for naturally occurring inequalities (talents that one is born with, such as
a capacity for sport).

Rawls justifies the difference principle on the basis that, since fair equality of opportunity has lexical
priority, the just choice from Pareto optimal scenarios which could occur would be that benefiting the
worst-off rather than the best-off.

Original position

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Main article: Original position

A key component of Rawls’ argument is his claim that his principles of justice would be chosen by parties
in the original position.[10] This is a thought experiment in which the parties select principles that will
determine the basic structure of the society they will live in. This choice is made from behind a veil of
ignorance, which would deprive participants of information about their particular characteristics: his or
her ethnicity, social status, gender and, crucially, their conception of the good. This forces participants
to select principles impartially and rationally.
Restorative justice is an approach to justice that aims to repair the harm done to victims.[1][2] In doing
so, practitioners work to ensure that offenders take responsibility for their actions, to understand the
harm they have caused, to give them an opportunity to redeem themselves, and to discourage them
from causing further harm. For victims, the goal is to give them an active role in the process,[3] and to
reduce feelings of anxiety and powerlessness.[4]

Restorative justice is founded on an alternative theory to the traditional methods of justice, which often
focus on retribution. Restorative justice programs can also complement traditional methods, and it has
been argued that some cases of restorative justice constitute punishment from the perspectives of some
positions on what punishment is.[5]

Though academic assessment of restorative justice is positive,[4][6][7] more recent studies have shown
that academic performance falters in school districts where restorative justice is practiced.[8]
Proponents argue that most studies suggest it makes offenders less likely to reoffend.[9][10][11] A 2007
study also found that it had a higher rate of victim satisfaction and offender accountability than
traditional methods of justice delivery.[4] However, practictioners have commented that the field has
attracted increased risks of revictimization.[12] Its use has seen worldwide growth since the 1990s.[13]
Restorative justice inspired and is part of the wider study of restorative practices.

One response to a crime, in a restorative justice program, is to organize a meeting between the victim
and the offender.[14] This is sometimes done with representatives of the wider community.[citation
needed] The goal is for them to share their experience of what happened, to discuss who was harmed
by the crime and how, and to create a consensus for what the offender can do to repair the harm from
the offense.[citation needed] This may include a payment of money given from the offender to the
victim, apologies and other amends, and other actions to compensate those affected and to prevent the
offender from causing future harm.[citation needed] However, restorative justice practices are firmly
rooted in the needs of the victim, and may simply support holding the perpetrator accountable and the
sharing of victim impact statements without dialogue.[15]

The concept of cognitive justice is based on the recognition of the plurality of knowledge and expresses
the right of the different forms of knowledge to co-exist.[1]

Indian scholar Shiv Visvanathan coined the term cognitive justice in his 1997 book “A Carnival for
Science: Essays on science, technology and development”.[2] Commenting on the destructive impact of
hegemonic Western science on developing countries and non-Western cultures, Visvanathan calls for
the recognition of alternative sciences or non-Western forms of knowledge. He argues that different
knowledges are connected with different livelihoods and lifestyles and should therefore be treated
equally.

Cognitive justice is a critique on the dominant paradigm of modern science[3] and promotes the
recognition of alternative paradigms or alternative sciences by facilitating and enabling dialogue
between, often incommensurable, knowledges. These dialogues of knowledge are perceived as
contributing to a more sustainable, equitable, and democratic world.

The call for cognitive justice is found in a growing variety of fields, such as ethnobiology,[4] technology
and database design,[5] and in information and communication technology for development (ICT4D).[6]

South-African scholar and UNESCO education expert Catherine Odora Hoppers wrote about cognitive
justice in the field of education.[7] She argued that indigenous knowledges have to be included in the
dialogues of knowledge without having to fit in the structures and standards of Western knowledge.
When Indigenous knowledges are treated equally, they can play their role in making a more democratic
and dialogical science, which remains connected to the livelihoods and survival of all cultures.[7

Not to be confused with Natural law.

In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua)
and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a
general concept, it has largely been replaced and extended by the general “duty to act fairly”.

A tondo of an allegory of justice (1508) by Raphael in the Stanza della Segnatura (Room of the Apostolic
Signatura) of the Apostolic Palace, Vatican City

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can
take the form of actual bias, imputed bias, or apparent bias. Actual bias is very difficult to prove in
practice whereas imputed bias, once shown, will result in a decision being void without the need for any
investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply
two tests for apparent bias: the “reasonable suspicion of bias” test and the “real likelihood of bias” test.
One view that has been taken is that the differences between these two tests are largely semantic and
that they operate similarly.
The right to a fair hearing requires that individuals should not be penalized by decisions affecting their
rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity
to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights
or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe,
the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights,
which is said to complement the common law rather than replace it.

Background

Edit

The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v
Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according
to the context of the matter arising.

Natural justice is a term of art that denotes specific procedural rights in the English legal system[1] and
the systems of other nations based on it. It is similar to the American concepts of fair procedure and
procedural due process, the latter having roots that to some degree parallel the origins of natural
justice.[2]

Although natural justice has an impressive ancestry[3] and is said to express the close relationship
between the common law and moral principles,[4] the use of the term today is not to be confused with
the “natural law” of the Canonists, the mediaeval philosophers’ visions of an “ideal pattern of society” or
the “natural rights” philosophy of the 18th century.[5] Whilst the term natural justice is often retained as
a general concept, in jurisdictions such as Australia,[6]: 583 and the United Kingdom,[3]: 320 it has
largely been replaced and extended by the more general "duty to act fairly”. Natural justice is identified
with the two constituents of a fair hearing,[3]: 322 which are the rule against bias (nemo iudex in causa
sua, or “no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or “hear
the other side”).[7]

The requirements of natural justice or a duty to act fairly depend on the context.[6]: 584–585 In Baker v
Canada (Minister of Citizenship and Immigration) (1999),[8] the Supreme Court of Canada set out a list
of non-exhaustive factors that would influence the content of the duty of fairness, including the nature
of the decision being made and the process followed in making it, the statutory scheme under which the
decision-maker operates, the importance of the decision to the person challenging it, the person’s
legitimate expectations, and the choice of procedure made by the decision-maker.[9]

Earlier, in Knight v Indian Head School Division No 19 (1990),[10] the Supreme Court held that public
authorities which make decisions of a legislative and general nature do not have a duty to act fairly,
while those that carry out acts of a more administrative and specific nature do. Preliminary decisions will
generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect.
[10]: para 30

Whether a duty to act fairly applies depends on the relationship between the public authority and the
individual. No duty exists where the relationship is one of master and servant, or where the individual
holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the
individual cannot be removed from office except for cause.[10]: para 32 Finally, a right to procedural
fairness only exists when an authority’s decision is significant and has an important impact on the
individual.[10]: para 39

Rule against bias

Edit

In general

Edit

People are barred from deciding any case in which bias exists or bias may fairly be suspected. This
principle embodies the basic concept of impartiality,[11] and applies to courts of law, tribunals,
arbitrators and all those having the duty to act judicially.[12] A public authority has a duty to act
judicially whenever it makes decisions that affect people’s rights or interests, and not only when it
applies some judicial-type procedure in arriving at decisions.[13]

The basis on which impartiality operates is the need to maintain public confidence in the legal system.
The erosion of public confidence undermines the nobility of the legal system and leads to ensuing chaos.
[14] The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in
Metropolitan Properties Co (FGC) Ltd v Lannon (1968):[15] “Justice must be rooted in confidence and
confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”[15]: 599

Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of
Lord Hewart, the Lord Chief Justice of England and Wales, that “[i]t is not merely of some importance,
but of fundamental importance that justice should not only be done, but should manifestly be seen to
be done”.[16]

Forms of bias

Edit

Actual and imputed bias

Edit
A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of Cottenham, 1781–1851), by
Charles Robert Leslie. In Dimes v Grand Junction Canal (1852), his Lordship was disqualified from hearing
a case as he had a pecuniary interest in the outcome.

Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a
decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such
an allegation is rare as it is very hard to prove.[17]

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary
or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is
irrebuttable and disqualification is automatic—the decision-maker will be barred from adjudicating the
matter without the need for any investigation into the likelihood or suspicion of bias.[18] A classic case is
Dimes v Grand Junction Canal (1852),[18] which involved an action between Dimes, a local landowner,
and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had
affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham, in
fact, owned several pounds’ worth of shares in the Grand Junction Canal. This eventually led to the
judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person
would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to
hear the case.

In certain limited situations, bias can also be imputed when the decision-maker’s interest in the decision
is not pecuniary but personal. This was established in the unprecedented case of R v Bow Street
Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.2) (1999).[19] In an appeal to the
House of Lords, the Crown Prosecution Service sought to overturn a quashing order made by the
Divisional Court regarding extradition warrants made against the ex-Chilean dictator, Senator Augusto
Pinochet. Amnesty International (AI) was given leave to intervene in the proceedings. However, one of
the judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty International Charity
Ltd. (AICL), a company under the control of AI. He was eventually disqualified from the case and the
outcome of the proceedings set aside.

The House of Lords held that the close connection between AICL and AI presented Lord Hoffmann with
an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lords took the
view that the interest was sufficient to warrant Lord Hoffmann’s automatic disqualification from hearing
the case. In Locabail (UK) Ltd v Bayfield Properties Ltd (1999),[20] the Court of Appeal warned against
any further extension of the automatic disqualification rule, “unless plainly required to give effect to the
important underlying principles upon which the rule is based”.[20]: 465

Apparent bias
Edit

Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not
have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion
that he or she is not impartial.[21] An issue that has arisen is the degree of suspicion which would
provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from
various jurisdictions apply two different tests: “real likelihood of bias” and “reasonable suspicion of
bias”.

The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real
likelihood of bias.[22] In R v Gough (1993),[23] the House of Lords chose to state the test in terms of a
“real danger of bias”, and emphasized that the test was concerned with the possibility, not probability,
of bias. Lord Goff of Chievely also stated that “the court should look at the matter through the eyes of a
reasonable man, because the court in cases such as these personifies the reasonable man”.[23]: 670
However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism
is that the emphasis on the court’s view of the facts gives insufficient emphasis to the perception of the
public.[24] These criticisms were addressed by the House of Lords in Porter v Magill (2001).[25] The
Court adjusted the Gough test by stating it to be “whether the fair-minded and informed observer,
having considered the facts, would conclude that there was a real possibility that the tribunal was
biased”.[25]: 494 This case therefore established the current test in the UK to be one of a “real
possibility of bias”.

On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person
sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for
the litigant is not possible.[26] Although not currently adopted in the UK, this test has been endorsed by
the Singapore courts.[27]

It has been suggested that the differences between the two tests are largely semantic and that the two
tests operate similarly. In Locabail, the judges stated that in a large proportion of the cases, application
of the two tests would lead to the same outcome. It was also held that “[p]rovided that the court,
personifying the reasonable man, takes an approach which is based on broad common sense, and
without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters
outside the ken of the ordinary, reasonably well-informed members of the public, there should be no
risk that the courts will not ensure both that justice is done and that it is perceived by the public to be
done”.[20]: 477

In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board
(2005),[14] Judicial Commissioner Andrew Phang observed that the real likelihood test is in reality
similar to that of reasonable suspicion. First, likelihood is in fact “possibility”, as opposed to the higher
standard of proof centring on “probability”. Secondly, he suggested that real in real likelihood cannot be
taken to mean “actual”, as this test relates to apparent and not actual bias. He also observed that both
the court’s and the public’s perspectives are “integral parts of a holistic process” with no need to draw a
sharp distinction between them.[14]: 617–8

In contrast, in Re Shankar Alan s/o Anant Kulkarni (2006),[28] Judicial Commissioner Sundaresh Menon
thought that there was a real difference between the reasonable suspicion and real likelihood tests.[28]:
101 In his opinion, suspicion suggests a belief that something that may not be provable could still be
possible. Reasonable suggests that the belief cannot be fanciful. Here the issue is whether it is
reasonable for the one to harbour the suspicions in the circumstances even though the suspicious
behaviour could be innocent. On the other hand, likelihood points towards something being likely, and
real suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more
towards the actor than the observer. The issue is the degree to which a particular event is not likely or
possible[28]: 99 Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa
in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to
whether the judge thinks there is a sufficient possibility of bias was “a very significant point of
departure”.[28]: 103

The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of
possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities, this is
actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and
often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that a
reasonable member of the public could harbour a reasonable suspicion of bias even though the court
itself thought there was no real danger of this on the facts. The difference is that the driver behind this
test is the strong public interest in ensuring public confidence in the administration of justice.[28]: 107–
8 As of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether
the position taken in Tang Kin Hwa or Shankar Alan is preferable.

Exceptions to the rule against bias

Edit

Necessity

Edit

There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to
act. It has been observed that “disqualification of an adjudicator will not be permitted to destroy the
only tribunal with power to act”.[29] In such cases, natural justice has to give way to necessity in order
to maintain the integrity of judicial and administrative systems.[30]

This issue regarding necessity was raised in Dimes.[18] The Lord Chancellor had to sign an order for
enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It
was held that his shareholding in the canal company which barred him from sitting in the appeal did not
affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was
allowed “for this [was] a case of necessity, and where that occurs the objection of interest cannot
prevail”.[18]: 787

Waiver

Edit

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge
of the bias.[31] If an objection is not raised and proceedings are allowed to continue without
disapproval, it will be held that the party has waived its right to do so.[32]

Effect of a finding of bias

Edit

In Dimes,[18] the judges advised the House of Lords that Lord Cottenham’s pecuniary interest made his
judgment not void, but voidable. This advice is not wrong in the context of a judicial act under review,
where the judgment will be held valid unless reversed on appeal.[33]

However, in the cases of administrative acts or decisions under judicial review, the court can only
intervene on the grounds of ultra vires,[33]: 401 hence making the judgment void. Lord Esher said in
Allison v General Council of Medical Education and Registration (1894)[34] that the participation of a
disqualified person “certainly rendered the decision wholly void”.[34]: 757

Right to a fair hearing

Edit

In general

Edit

A hearing of the International Court of Justice in 2006 presided over by its president, Her Excellency
Dame Rosalyn Higgins. A fundamental aspect of natural justice is that before a decision is made, all
parties should be heard on the matter.

It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against
bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It
is fundamental to fair procedure that both sides should be heard.[33]: 402 The right to a fair hearing
requires that individuals are not penalized by decisions affecting their rights or legitimate expectations
unless they have been given prior notice of the cases against them, a fair opportunity to answer them,
and the opportunity to present their own cases.[35]

Besides promoting an individual’s liberties, the right to a fair hearing has also been used by courts as a
base on which to build up fair administrative procedures.[33]: 402 It is now well established that it is not
the character of the public authority that matters but the character of the power exercised.[33]: 405
However, in the United Kingdom prior to Ridge v Baldwin (1963),[36] the scope of the right to a fair
hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863).[37]
In R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923),[38]
Lord Atkin observed that the right only applied where decision-makers had “the duty to act judicially”.
[38]: 205 In natural justice cases this dictum was generally understood to mean that a duty to act
judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a
duty would arise only if there was a “superadded” express obligation to follow a judicial-type procedure
in arriving at the decision.[3]: 330

In Ridge v Baldwin, Lord Reid reviewed the authorities extensively and attacked the problem at its root
by demonstrating how the term judicial had been misinterpreted as requiring some additional
characteristic over and above the characteristic that the power affected some person’s rights. In his
view, the mere fact that the power affects rights or interests is what makes it “judicial” and so subject to
the procedures required by natural justice.[33]: 413–5 [39] This removal of the earlier misconception as
to the meaning of judicial is thought to have given the judiciary the flexibility it needed to intervene in
cases of judicial review.[40]

The mere fact that a decision-maker is conferred wide discretion by law is not reason enough for a
weakening of the requirements of natural justice. In the United Kingdom context, this is demonstrated
by Ahmed v H.M. Treasury (No. 1) (2010).[41] The Treasury had exercised powers to freeze the
appellants’ financial assets and economic resources on the ground that it reasonably suspected the
appellants were or might be persons who had committed, attempted to commit, participated in or
facilitated the commission of terrorism, pursuant to the Terrorism (United Nations Measures) Order
2006[42] and the Al-Qaida and Taliban (United Nations Measures) Order 2006[43] made under the
United Nations Act 1946.[44] The Supreme Court of the United Kingdom held that since the Al-Qaida
Order made no provision for basic procedural fairness, it effectively deprived people designated under
the order the fundamental right of access to a judicial remedy and hence was ultra vires the power
conferred by the United Nations Act 1946 for the making of the Order.[45]

Article 6 of the European Convention

Edit

The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights
and Fundamental Freedoms, which states:[46]
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law. …

Article 6 does not, however, replace the common law duty to ensure a fair hearing. It has been
suggested that Article 6 alone is not enough to protect procedural due process, and only with the
development of a more sophisticated common law will the protection of procedural due process extend
further into the administrative machine.[33]: 405 Nonetheless, Article 6 supplements the common law.
For example, the common law does not impose a general duty to give reasons for a decision, but under
Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to
decide whether to appeal.[47]

Aspects of a fair hearing

Edit

Prior notice of hearing

Edit

Natural justice allows a person to claim the right to adequate notification of the date, time, place of the
hearing as well as detailed notification of the case to be met.[35] This information allows the person
adequate time to effectively prepare his or her own case and to answer the case against him or her. In
Cooper v Wandsworth,[37] Chief Justice William Erle went so far as to state that the lack of notice and
hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not
matter.[48] As Lord Mustill famously held in R v Secretary of State for the Home Department Ex p Doody
(1993): “Since the person affected usually cannot make worthwhile representations without knowing
what factors may weigh against his interests fairness will very often require that he is informed of the
gist of the case which he has to answer.”[49][6]: 582

It has been suggested that the requirement of prior notice serves three important purposes:[48]: 127

The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only
when the interested person knows the issues and the relevant information that he or she can make a
useful contribution.

The duty of respect – the affected person has the right to know what is at stake, and it is not enough to
simply inform him or her that there will be a hearing.

The rule of law – notice of issues and disclosure of information opens up the operations of the public
authority to public scrutiny.
The British courts have held it is not enough for an affected person to merely be informed of a hearing.
He or she must also be told what is at stake; in other words, the gist of the case.[48]: 127

Opportunity to be heard

Edit

Every person has the right to have a hearing and be allowed to present his or her own case.[6]: 582
Should a person not attend the hearing, even with adequate notice given, the adjudicator has the
discretion to decide if the hearing should proceed. In Ridge v Baldwin, a chief constable succeeded in
having his dismissal from service declared void as he had not been given the opportunity to make a
defence. In another case, Chief Constable of the North Wales Police v Evans (1982),[50] a chief constable
required a police probationer to resign on account of allegations about his private life which he was
given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in
Surinder Singh Kanda v Federation of Malaya (1962),[11] a public servant facing disciplinary proceedings
was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer
had access to before the hearing. The Privy Council held that the proceedings had failed to provide him a
reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the complainant
face to face—“Natural justice does not generally demand orality”.[51] It has been suggested that an oral
hearing will almost be as good as useless if the affected person has no prior knowledge of the case.[51]:
287 In Lloyd v McMahon (1987),[52] an oral hearing did not make a difference to the facts on which the
case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice Harry Woolf
held that an oral hearing may not always be the "very pith of the administration of natural justice”.[52]:
670 It has also been suggested that an oral hearing is only required if issues concerning deprivations of
legal rights or legally protected interests arise.[48]: 128

Conduct of the hearing

Edit

When deciding how the hearing should be conducted, the adjudicator has to ask whether the person
charged has a proper opportunity to consider, challenge or contradict any evidence, and whether the
person is also fully aware of the nature of the allegations against him or her so as to have a proper
opportunity to present his or her own case.[53] In Secretary of State for the Home Department v AF
(2009),[54] Lord Phillips of Worth Matravers said:

The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the
allegations that are made against him and the evidence relied upon in support of those allegations.
Where the evidence is documentary, he should have access to the documents. Where the evidence
consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that
testimony, whose identities should be disclosed.[54]: 355

However, when a hearing requires the balancing of multiple polycentric issues such as natural justice
and the protection of confidential information for national security reasons, both the concerns of public
security and the right to a fair trial must be adequately met. It was held by the House of Lords in AF,[54]
applying the decision of the Grand Chamber of the European Court of Human Rights A v United Kingdom
(2009),[55] that a person accused of terrorism against whom a control order has been issued must be
given sufficient information about the allegations against him to enable him to give effective instructions
to his special advocate. If this requirement is satisfied, a fair hearing can be conducted without detailed
disclosure of confidential information that might compromise national security. On the facts of the case,
a special advocate was not permitted further contact with an applicant or his ordinary legal
representatives except with permission of the Special Immigration Appeals Commission (SIAC) after
viewing confidential (or “closed”) materials.

The House of Lords recognized that although a special advocate’s usefulness is stymied somewhat from
having no further instructions after viewing such materials, if the SIAC decides to issue a control order
predominantly on the basis of non-confidential (or “open”) materials, an applicant cannot be regarded
as having been denied an opportunity to challenge the reasonableness of the government’s beliefs and
suspicions about him. If the evidence against the applicant is largely closed but allegations contained in
open material are sufficiently specific, an applicant should be able to provide his legal representatives
and special advocate with information to refute it (such as an alibi, if the open material alleges he was at
a certain place during a certain period) without having to know the detail or sources of the closed
evidence. However, if the evidence revealed to the person consists only of general assertions and the
case against him is based solely or to a substantive extent on undisclosed adverse evidence, the fair
hearing rule under natural justice will not be satisfied.[54]: 350-2

In such cases, there are strong policy considerations supporting the principle that a trial procedure can
never be considered fair if a person is kept in ignorance of the case against him or her. First, since the
grounds for a reasonable suspicion that a person is involved in terrorist activity can span from
incontrovertible evidence to an innocent misinterpretation of facts which can be explained away by the
person, in many cases it is impossible for courts to be sure that the disclosure of the evidence will make
no difference to the applicant. Secondly, resentment will be felt by the person and his family and friends
if sanctions are imposed without any proper explanation of the grounds and when, due to the non-
disclosure of information, the person is put in a position where he is unable to properly defend himself.
As Lord Phillips put it, “if the wider public are to have confidence in the justice system, they need to be
able to see that justice is done rather than being asked to take it on trust”.[54]: 355

The right to be heard in answer to charges before an unbiased tribunal is illustrated in the Singapore
case Tan Boon Chee David v. Medical Council of Singapore (1980).[56] During a disciplinary hearing,
council members were either not conscientious about their attendance or did not attend the whole
course of proceedings. This meant they did not hear all the oral evidence and submissions. The High
Court held that this had substantially prejudiced the appellant and constituted a fundamental breach of
natural justice. On the other hand, mere absence from a hearing does not necessarily lead to undue
prejudice. It was held in Re Teo Choo Hong (1995)[57] that the function of a lay member of a lawyers’
disciplinary committee was to observe and not cast a vote or make a judgment. Thus, the appellant had
not suffered undue prejudice.

On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a hearing, the
other party must also be given the same opportunity.[58] In addition, when a tribunal decides a case on
a basis not raised or contemplated by the parties, or decides it without regarding the submissions and
arguments made by the parties on the issues, this will amount to a breach of natural justice.[59]
However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering
a submission is not enough to be a breach of natural justice.[60] This may occur when the submissions
were accidentally omitted, or were so unconvincing that it was not necessary to explicitly state the
adjudicator’s findings.[60]: 758–759

Right to legal representation

Edit

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has
the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing
before it, based on the facts of the case.[61] When assessing whether a party should be offered legal
assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly,
whether counsel’s assistance is needed for an effective hearing given the subject matter, bearing in
mind the consequences of such a denial.[35]: 192

In R v Secretary of State for Home Department, ex parte Tarrant (1983),[62] Webster J. set out six
factors to be considered when deciding whether to allow representation by counsel, namely:[62]: 285–6

The seriousness of the charge and the potential penalty;

Whether any points of law are likely to arise.;

Whether the prisoner is capable of presenting his own case;

Whether there are any procedural difficulties faced by prisoners in conducting their own defence;

Whether there is reasonable speed in making the adjudication; and

Whether there is a need for fairness between prisoners or between prisoners and prison officers.
It has also been suggested that where a tribunal hearing concerns the individual’s reputation or right to
livelihood, there is a greater need for allowing legal representation as this vindicates the idea of equality
before the law.[63]

When one refuses legal representation, one cannot expect to receive a higher “standard” of natural
justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical Council (2008).[64] Dr. Ho,
who had been charged with professional misconduct, chose to appear before the council in person and
declined to cross-examine the council’s key witness. Subsequently, he argued that he should have been
warned of the legal implications of not being legally represented. The High Court rejected this argument
and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own
case and, most importantly, had not been deprived of his right to cross-examine the witnesses.

It is also not a court's obligation to provide assistance when a party presents his or her case without
legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998),[65] the accused had appeared
in person before a magistrate and had entered a plea of guilt. He later petitioned the High Court for
criminal revision, arguing that as the magistrate had not informed him of the defences available to him,
his plea had been equivocal. The Court held:[65]: 19

The onus [of informing the accused of his defence options or what could be more advantageous to his
case] does not shift to the judge (or the Prosecution, for that matter) simply because the accused is
unrepresented. That will be placing too onerous a burden on the judge. Furthermore, the judge will be
performing two completely incompatible and irreconcilable roles—one as the adjudicator, the other as
the de facto defence counsel.

In Singapore, the right to legal representation is contingent on the nature of the inquiry. However, since
Article 12 of the Constitution of Singapore guarantees equal protection under the law, it has been
suggested that greater weightage should be accorded to this procedural right when balancing it against
the competing demand of efficiency.[35]: 193–4

The decision and reasons for it

Edit

Currently, the principles of natural justice in the United Kingdom and certain other jurisdictions do not
include a general rule that reasons should be given for decisions.[49][66] In R v Northumberland
Compensation Appeal Tribunal, ex parte Shaw (1951),[67] Denning L.J. stated: “I think the record must
contain at least the document which initiates the proceedings; the pleadings, if any; and the
adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If
the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the
decision.”[67]: 352 It has been stated that “no single factor has inhibited the development of English
administrative law as seriously as the absence of any general obligation upon public authorities to give
reasons for their decisions".[68]

Historically, uncontrolled public decisions have led to poor outcomes and disrespect for the decision-
makers. Such decisions also lacked the regularity and transparency that distinguish them from the mere
say-so of public authorities. On such grounds, there are obvious benefits for the disclosure of reasons
for decisions. First, procedural participation by people affected by a decision promotes the rule of law by
making it more difficult for the public authority to act arbitrarily.[48]: 110

Requiring the giving of reasons helps ensure that decisions are carefully thought through, which in turn
aids in the control of administrative discretion.[35]: 194 Secondly, accountability makes it necessary for
the public authority to face up to the people affected by a decision. When a public authority acts on all
the relevant considerations, this increases the probability of better decision outcomes and, as such, is
beneficial to public interests. Another important benefit is that respect for decision-makers is fostered,
which increases their integrity in the public’s eyes.[48]: 110