Scots Philosophical Association

University of St. Andrews

Natural Justice
Author(s): A. C. Lloyd
Source: The Philosophical Quarterly (1950-), Vol. 12, No. 48 (Jul., 1962), pp. 218-227
Published by: Oxford University Press on behalf of the Scots Philosophical Association and
the University of St. Andrews
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218

INATURAL JUSTICE

I
From time to time the courts of this country decide cases which rest on
an appeal to natural justice. It is an established principle of English law,
although in English law its scope is very narrow. In this context 'natural'
is virtually equivalent to 'universal ' or 'universally valid'; for natural
justice was not originally distinguished from the Graeco-Roman notion of
natural law, and one of the meanings of the exceptionally ambiguous ex-
pression 'jus naturale ' was that of rights which everyone possesses indepen-
dently of the positive law and the customs of any particular state. One can
ask whether there are in fact or even can be conditions which have every-
where and at all times to be satisfied if a judicial decision is to be a just one.
Let us suppose that this is asked not as itself a legal question (when it would
need to be about some specified legal system) but as what has regularly
been held a philosophical question. Perhaps, as many more philosophers
have supposed, this kind of moral question if it is also to be philosophical is
always about what reflecting people really believe. Ignoring, however, its
credentials we can approach the question itself by making a distinction.
We can distinguish, even though roughly, between conditions which belong
to the content of decisions and conditions which are, in relation to that
content, formal or procedural. In a civilisation like ours the distinction is
familiar enough. Every schoolboy member of a debating society knows
how to pipe up, " On a point of order, Mr. Chairman ". He has learnt the
notion that a remark or a piece of business or a decision can be valid or
invalid independently of its truth, its usefulness and its aptness.
One of the circumstances under which a decision is reached and which
is often thought to make it validly or invalidly reached is, of course, the
partiality or impartiality of the person making the decision. Both the
rightness of the decision and the impartiality of the judge can be called
justice or fairness. The ambiguity is not a matter of English idiom; it is
mentioned in two lines of Seneca's which became favourites with English
lawyers. Medea is complaining of her banishment by the king, Creon:
" His judgment may have been just who judged without hearing the other
side, but he was not just ".1
There have always been theorists who claim that there are universal
requirements of justice in the content of decisions-for example, and perhaps
predominantly, requirements about the distribution of property. These
'Qui statuit aliquid parte inaudita altera,
Aequum licet statuerit, haud aequus fuit
(Medea, 11. 199-200).

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 NATURAL JUSTICE 219

are so-called natural rights. They are a well known topic in the history of
philosophy, but a topic with which I am not here concerned at all. English
judges have for over a century confined the concept of natural justice to
the other class of conditions, those which do not belong to the content of
the decisions but to the manner of reaching them and which I have called
formal.2 I do not think, incidentally, that this is because English law and
legal theory are 'formalist' in comparison with other legal systems, but
because we already have thick, if not too thick, slabs of the other kind of
value judgment, for instance about property, built into our common law.
Anyhow, in modern times the rules of natural justice which have been
recognised in other courts are not only formal or procedural but restricted
to two. These are that both parties to a dispute must be heard-audi alteram
partem-and secondly, that the author of a decision should not be himself
a party in the dispute which he is deciding.3 The first (always excepting a
case of default) covers an accused person as well as a party to a civil action.
The second covers the case of so-called 'interest'. These two conditions
are required to obtain before any judicial and any so-called quasi-judicial
decision which are not specifically excepted by statute are to be counted
as just or correct whatever the subject matter of the decision may be. This
makes them universal in a certain philosophical sense ; and they are universal
too in a more ordinary sense, for they are held in England to apply equally
to judgments of foreign courts.
So much by way of describing the point of view of English law and of
restricting the problem I wish to deal with. For it is with this point of
view alone that I am concerned. The question I wish to ask is this: what is
the principle, or principles, behind such universal conditions ? In other words
what is the criterion of justice in the English version of natural justice ?

II
There is no doubt that lawyers, if not legal theorists, have been influenced
by the original connection or confusion with the law of nature. In the matter
of audi alteram partem Coke was sufficiently well informed to be able to
state how Almighty God proceeds: " Postquam reus diffamatus est-1.
vocat, 2. interrogat, 3. judicat"; and an eighteenth century gentleman
pointed out that this was the procedure in the Garden of Eden-" Adam
(says God) where art thou ? Hast thou not eaten . - .? And the same
question was put to Eve also .4 The lawyers are liable, therefore, to answer
our question by describing the rules as both absolute and self-evident.
This will be unacceptable to many as it is to me; and I wish to recommend
an alternative account, which will be in the form of a clear cut, strictly
formulated criterion for the agreed rules and any other possible rules of
natural justice. It is true that in modern times lawyers often seem to have
2Cf. Bramwell, B. in Crawley v. Isaacs (1863) and Channell, J. in Robinson v. Fenner
(1931), quoted H. H. Marshall, Natural Justice, 1959, pp. 81 and 15 respectively.
3Marshall, op. cit., passim.
4See Marshall, op. cit., pp, 19, 18.

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 220 A. C. LLOYD

defended them not as ultimate principles but as subservient to another

principle, namely that justice should be seen to be done. This defence will
best be looked at later on.
The way in which we approached the problem will already perhaps
have suggested an alternative account. Being formal or procedural, rules of
natural justice may seem to resemble rules of validity, and we may think
of an analogy between a judicial decision and the conclusion of an argument.
The truth (or probability) of such conclusions might then correspond to
the justice of judicial decisions in the other, concrete, sense of justice that
for convenience we are calling their rightness. This analogy will not stand
much pressing: but one need not enquire how far it holds, for it is not men-
tioned here as an argument but only to show one way in which we can come
to see the idea of natural justice as perhaps depending logically on the idea
of justice as the rightness of decisions.
Another set of considerations points in the same direction. The difficulty
of proving or getting any agreement about the existence of natural justice
in the non-formal version of it, as natural rights, is familiar. Suppose that
a sceptic similarly calls in question all universal rules of natural justice in
the formal version accepted by English law. Going outside a merely legal
answer which belongs to some positive law, suppose that we try to state
what specific rules are and what are not absolute rules, that is, ought or
ought not to be held universally necessary. The right of a party or accused
person to be represented ? This has been thought absolute by some, but has
not been accepted in English law. The duty of a tribunal to make public
the reasons for its decisions ? But then juries do not. On the other hand
both 'audi alteram partem' and 'be not judge in your own cause' are
hardly self-evident: the first has already been weakened by qualifications
-so called interpretations-in the courts; and as for the second principle,
Plato's Guardians should theoretically be the best judges in case of a dispute
with them. To put the matter in a nutshell, why should a pope follow any
rules of natural justice (always in our formal version) at all ?
To this a certain reply can be made. If one allows that a pope or a
Platonic Guardian is justified in ignoring the rules, is not this for the reason
that the conditions thought necessary for reaching the right decision are
present without their following the rules ? If the English conditions are
thought to be absolute it can be claimed that the popes and Guardians
know the other party's case without physically listening to it; and they are
assumed able to distinguish between themselves as parties and as judges.
The specific content of natural justice is then presupposed by the objector
to it; the instances he quotes are plausible just because in effect the two
rules have been complied with.
While one has to allow considerable weight to this reply, one has to
notice that it goes very little way towards showing that there are absolute
rules of natural justice. It is likely however that the sceptic would receive
two kinds of reply, and perhaps from the same person. He is likely to be

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 NATURAL JUSTICE 221

told that the popes and Guardians will in effect have followed the rules and
at the same time be told that they could have reached the right decisions
without following the rules at all. To hear the sophistries of a party at
fault might be at best superfluous and at worst misleading. This kind of
reply would follow from the fact that a pope or a Guardian is to be counted
in certain contexts as a kind of moral know-all. But then it will refer only
to the rightness, that is the truth, of the decision; for know-alls and pundits
should hardly be said to decide things, any more than I decide that I am
holding a pencil.
So to have a party as well as a judge and to have two cases that are
heard seem also to be logical requirements of a judicial decision. As that
they will be universal. But equally they will cease to be interesting since
they follow analytically from the notion of a judicial decision and add
nothing to it save verbally; we shall only have turned our question, which
is one about values, into the question how certain necessary features of
judicial decisions are to be singled out for a particular species of approval.
When one is dealing with terms whose meaning is among other things to
attach justification to what they are predicated of, there are evidently
special dangers in philosophical analysis. In recent years some problems
have not escaped being 'solved' by a more complicated and disguised
version of the type of proof which proves that promises ought to be kept,
since they would not be promises unless they ought to be kept. There may
be a hint of this in a much cited dictum of Lord Loreburn's that in ascertain-
ing either law or fact people " must act in good faith and fairly listen to
both sides, for that is a duty lying upon everyone who decides anything ".
It is unlikely to help our purpose to try asking what ' being a judge ' or
'deciding' logically implies.
These considerations do, however, suggest a compromise between a
radical denial that there is anything to be said for the concept of natural
justice as a distinct concept and a traditional belief in absolute rules. The
concept must be less concrete than the traditionalists ordinarily claim, but
not reducible to one or another tautology. Let us call a decision reached
according to the rules of natural justice 'naturally just '. I think that all
the considerations we have made about popes and Guardians will be satisfied
by a formula requiring that to be naturally just a decision, simply as a
decision, must be probably right. What this means is that the specific
content of natural justice, in short
the rules of natural justice are those which make it probable that, what-
ever the matter to be decided, the decision will be right.
Only it will not follow that these rules are conditions or requirements of
justice. To ensure that we may prefer an alternative formula:
the rules of natural justice are those whose breach makes it less probable
that, whatever the matter to be decided, the decision will be right.
This does not imply the first formula, which makes a stronger claim. Nor
5Board of Education v. Rice (1911) A.C. 179 at 182; cf. University of Ceylon v. Fer-
nando (1960) All E.R. 631 at 637.

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 222 A. C. LLOYD

even is it implied by it: but a rule which satisfied the first formula would
very probably satisfy the second. Instead of proposing rules whose breach
made right decisions 'less probable ' (i.e. less probable than if the rules
were obeyed), one might have proposed rules whose breach made them ' im-
probable' (i.e. less probable than not). While still not implied by the first
formula, this version would have been intuitively more like it and perhaps
more attractive. But all three versions are compatible ; and I prefer the
second and weakest formula because it is then at least possible for some
application of it to satisfy the stronger claims.
The fact of course is that a rigid formalism is out of place. The intuitive
notion for which I am trying to suggest a rationale or ' explication ' is too
uncertain, the proportion of stipulation or recommendation to analysis or
description in the rationale too high. Suppose for example that someone
points out that almost everything from rules of evidence to the presence of
fresh air in the place of decision could rigorously be brought under my
proposed definition: it could be replied that that kind of rigour was simply
misplaced. Meanings are commonly explained by what look like statements
of sufficient and necessary conditions: but commonly such statements are
treated as presenting conditions which are at least not sufficient. The
practice is familiar and consists in supplying a context, in knowing what
things to take for granted-or rather not even that, but what kind of things
to take for granted. This sets a limit of relevance; and as things are the
question of fresh air would be irrelevant. It is doubtful whether much more
needs to be conceded. Certainly our particular notion of natural justice
lies inside a complex of judicial procedure and norms, both of which owe
their theoretical divisions and interrelations not to logic or moral philosophy
but to the contingencies of history. The result is that there are other cate-
gories than those of natural justice to take care of rules of evidence. But
until these categories had been identified and placed in relation to natural
justice this would be a very unsatisfactory answer. There is indeed no
reason why it should bear the weight of excluding a rule such as that which
nullifies confessions made under duress or one which requires hearings to be
public; it is quite proper that such rules should be candidates for inclusion
under natural justice. That is not to say that they will pass the test of
universality which is contained in our clause, 'whatever the matter to be
decided'. And this consideration is likely to exclude most of the plausible
candidates which English law has as a matter of fact excluded.
What is the upshot of these comments on the formula that I have pro-
posed ? The proposal is not a completely stated criterion of natural justice.
It is a suggestion, contrary to the traditional view and formalised only as
far as the subject seems to warrant, that, while independent of the subject
matter of a decision, the definition of a naturally just decision depends
logically on the concept of a right decision, and that this logical dependence
is to be found in the relation of causing to be probable. These three features
mark the lines along which any validation of specific rules should run.

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 NATURAL JUSTICE 223

III
The suggested account must now be put through its paces so that I
can draw attention to what I hope are its points. Some of these will show
how it agrees with our undefined notion of natural justice, and some will
recommend it apart from that. First and most obviously it does not follow
from it that in some circumstances, or even in most relevant circumstances
of 1961, a number of widely accepted specific rules of natural justice-more
perhaps than the pair recognised by English law-are not the proper ones
to approve and to practise. It follows only that they depend on the historical
circumstances. The impossibility of apriorism and of absolute rules is an
analytic consequence of taking natural justice to mean the probability that
a right decision will be reached. That amounts to the best method, and this
will vary.
But here there are three things which should be mentioned about this
use of ' probability '. It serves in defining just procedure better than ' the
best method ', for compared with 'probable ', 'best ' is an informal and
loose term. Secondly, and more important, it gives natural justice an em-
pirical and rational content in so far as the criterion or evidence of what is
probable lies in the facts of historical circumstances. For instance, " Judges
need to be sober on the bench " is probable on the grounds of experience;
and so is " University students need not be represented by advocates before
a disciplinary committee ". Thirdly, probability has a subjective reference,
in the sense of a reference to beliefs, either because it is the measure of belief,
or (more plausibly) because it is relative to evidence and evidence is some-
body's evidence. This subjective reference allows a demand for natural
justice to be often equivalent to a demand that justice should be seen to
be done. The Guardian or the pope may have given the right judgment:
but one who is not convinced by the doctrines of Plato or of the Roman
Church might have preferred them to have followed overtly procedure
which is appropriate to a more fallible wisdom. .'Vx hypothesi the believer
will differ from him in thinking merely that such procedure would have
been superfluous; and the reason for the difference between them is that
they start from different sets of evidence on which to estimate the likelihood
of a right decision.
In fact we have to consider whether the raison d'etre of natural justice
is not the probability that justice will be done, that is the right decision
be reached, but the probability that it will also seem to have been done.
English lawyers and theorists have rarely suggested any principle behind
that of natural justice in its modern form. But there appears to have been
a tendency to suppose that it is the principle of justice being seen to be done.
According to our formula for natural justice this principle cannot be the
logically prior one; for if it is taken literally justice has to be done before
it can be seen to be done; and if, as more properly it is taken to refer to
the appearance of justice as something additional to the fact of it, it can
apparently conflict with natural justice and when it does it may even be

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 224 A. C. LLOYD

expected to give way to it since the likelihood of a right decision is thought

more important than the prospect of its appearing right. The effect is to
make this principle fall logically under that of natural justice whenever it
is concerned with questions of universal procedure. There is a large variety
of ways in which justice can fail to be manifest. English courts insist that
every case heard is a distinct case. But if we wanted general rules for making
justice manifest these would be embraced by the formula for natural justice.
They would name the conditions under which the reasonable man would
judge or expect justice to have been done, and these are entailed by con-
ditions which make it probable that justice should be done.
One is tempted to believe that there is some intrinsic advantage in seeing
justice being done. The end is not that but to know that justice has been
done-it is only a contingent fact that the surest means to this is to see it
being done. A further motive for trying to make the appearance of justice
a prior end to the likelihood of a right decision is, I suspect, an unreflecting
lapse into taking the ' justice ' of the principle to include the rightness
both of the decision and of the manner in which it was reached. If so,
natural justice would not be related to the principle in the way that I have
suggested: but equally it could not be explained by the principle without
circularity.
In short the rational position is that which was implied by Jessel, M. R.
when he decided that the Beefsteak Club had irregularly expelled Henry
Labouchere. He held that the committee had infringed a club rule requiring
them to have conducted an enquiry and also had failed to give the member,
Labouchere, notice of a definite charge-an accepted breach of audi alteram
partemn. But he appears to have seen no reason to separate these two points
and his explanation of them can, I think, be summarised as the need of the
committee to be as well placed as possible for forming a judgment. To reach
the " right judgment " (sic), " it was most important that the materials
on which that judgments was formed should be accurately ascertained";
for example, if the committee took their information about a member from
a newspaper without questioning the member they might expel the wrong
man, because " a person charged at a police court with drunkenness might
not give his own name but the name of some friend or enemy ".6
So much for comment on the term ' probable ' in our formula. The second
feature which can be noticed is that the phrase ' right decision ' is used to
define right procedure or the term 'naturally just '. 'Right ' decision is a
value term which involves a variable kind and a variable quantity of non-
value or descriptive elements according to the sorts of decision in question.
If it is to be decided whether A.B. stole the car the question is likely to be
very largely factual. If it is to be decided as the Beefsteak Club had to
decide whether somebody's action was injurious to the welfare and interests
of a club there are likely to be many more questions which plainly call for
value judgments. (It does not matter here if someone prefers to say that
6Labouche're v. Earl of Wharncliffe (1879) 13 Ch.D. 346 at 350.

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 NATURAL JUSTICE 225

the difference lies in the relative vagueness and elasticity of 'injurious'

compared with ' stole '. Nor is there anything special to be said about the
distinction between questions of fact and questions of law, which is itself
a legal distinction and other than the one which I have just drawn). Formally
there would be nothing wrong in leaving 'right decision ' as an undefined
notion. But a device which is familiar in modern philosophy makes it very
easy to define it in terms of truth. " A.B. stole the car " is the right decision
if and only if the proposition ' A.B. stole the car ' is true; and the same
formula holds equally for the more evaluative proposition, ' The action
was injurious to the welfare and interests of the club '. The theoretical
problem is now pushed into the question of meaning: someone either knows
what it is for the propositions to be true or he does not attach a meaning
to 'stole ', 'injurious ' and the rest. This account goes no whit beyond
the practice or usage of lawyers. Within the content of law it underlines
the rational, not to say empirical, character of the total concept of justice
whose two elements, relating to the process and to its outcome, we distin-
guished at the beginning.

IV
There is a field of increasing controversy in which any account of natural
justice has substantial implications. Two brief and general comments ought
to be made about it here, not for its own sake, but to prevent misconceptions
of the account I have given. Faced with the multiplication of administrative
and domestic tribunals, and of administrative or executive acts by govern-
ment ministers, in a state which has no administrative judiciary system,
English courts have felt forced to invent the notion of a ' quasi-judicial'
process. The legal point of this predicate is to entail that a decision can be
nullified if it is contrary to natural justice. In my account an essential and
important feature is that the 'justice ' of natural justice should not be
confused with the ' justice ' of just decisions; and one effect of this is to
make the criterion primarily non-moral and empirical. The corresponding
rules of justice, if there were any, that concerned the subject matter of the
decisions would be a moral notion equivalent roughly to natural rights.
Now quite often, I think, critics of ministerial decisions and critics of
ministerial powers are unconsciously presupposing or demanding natural
rights. But since it is clear that any satisfactory and independent criterion
of ' quasi-judicial ' is totally lacking they want to make natural justice bear
the weight of their demands. This is undesirable because it would conceal
a question of substance in a question of procedure. Here the question of
substance is the scope and standing of all that comes under the head of
policy; and it should be discussed for what it is, namely a moral or political
question. The same undesirable confusion sometimes certainly not always
-comes about when the rule of law is appealed to; for in that phrase 'law'
has just the same ambiguity between formal and substantial implications.
The second comment to be made points to a second limitation on the

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 226 A. C. LLO'YD

usefulness of natural justice as I have described the concept. It cannot be

applied to any institution until the function or purpose of the institution
has been determined. This is as it should be: otherwise ends and means are
confused in the kind of way that we have just seen. The priority of purpose
was built into our formula, where the naturally just depended on the notion
of just or right decisions. The standard institution to which it applied was
taken to be the process of ordinary courts of law. Other processes can be
compared with these-not merely that of a National Assistance Appeal
Tribunal, for example, but that of a parent in his family. Now the nature
of an ordinary judicial decision is sufficiently clear for a 'right ' decision to
be formally definable. Outside law courts the matter may not be so clear-
or if it is, illusorily so. Even there, however, once the purpose of the decisions
in question has been stipulated, the meaning of 'right ' decision will have
been understood; and it then becomes possible and desirable to apply our
concept of natural justice.
For it is the function of the decisions, not that of the institution itself,
which is relevant. The purpose of a ministerial decision under the Town &
Country Planning Act, say, depends upon that of the Act but is quite distinct
from it; in some cases it might be definable simply in terms of truth, as it
is in judicial decisions. So one might consider whether justice appearing
to be done was not perhaps part of the end in view and part of the rightness
itself of right decisions in some kinds of administrative action. To do so
one would have neither to ignore the political context nor to suppose the
decisions excluded rules as though they belonged only to political policy.
For this false dilemma the English legal tradition, which is not, of course,
confined now to England, has a good deal to answer: in interpreting statute,
as Sir Frederick Pollock pointed out, " some of its rules cannot well be
accounted for except on the theory that Parliament generally changes the
law for the worse, and that the business of judges is to keep the mischief
of its interference within the narrowest possible bounds .7 Moreover, the
dilemma of justice versus expediency belongs to an aspect of law as protecting
the rights of individuals against the state. This aspect is entirely valid,
although it becomes a lawyer's fable when it is presented as the rule of law
versus the 'arbitrary ' behaviour of the executive. But it is irrelevant be-
cause rights are not in question. Justice protects rights, but natural justice
does not protect natural rights.
Certainly ascertaining purposes and functions, which is necessary for
ascertaining what a right decision would mean, is not at all like ascertaining
the length of a rod. But the comparative vagueness and lack of unique
solutions to the questions do not make them unanswerable in the compara-
tively indefinite manner appropriate to them. And they are worth answering
because we are then enabled to have a rational and even largely empirical
standard of natural justice by which to judge any proposal to extend its
current rules. Suppose, for example, that we wished to claim that there was
7Essays in jurisprudence and ethics (1882), p. 85, quoted H. J. Laski, Committee on
ministers' powers (1932), Report (Cmd. 4060), Annex V, p. 137. Cf. ibid., pp. 54-58.

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 NATURAL JUSTICE 227

(morally, not legally) an absolute duty to give reasons for a decision. We

could argue that such a duty would make it more probable that whatever
the content of the decision a right decision would be made. If that were
held to be the case the duty would eo ipso be held under our formula to be
a rule (whether or not legal) of natural justice. Whether or not it was held to
be the case would depend on interpretations of administrative or executive
purposes, on the historical circumstances and on our experience of human
nature.
Nevertheless it would be going beyond my powers and my knowledge
to make much of the practicality of any such enquiry. Its difficulties in
any case fall outside my purpose; for this has been the theoretical one of
suggesting a formula, not for discovering, but for justifying rules of natural
justice in the framework of English law and of providing a rationale for
principles which otherwise appear to me to be non-rational.

A. C. LLOYD
University of liverpool.

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