外文翻译--司法构造：超越民事诉讼

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1、外文翻译 原文： Constructs of Justice: Beyond Civil Litigation Of： Alan J. Tomkins and Kimberly Applequist Prominent justice theories, that is, distributive, procedural, restorative, and retributive justice.Briefly, distributive justice is concerned primarily with the perceived fairness of the outcome of a

2、 given proceeding, whether that proceeding is judicial, quasi judicial or entirely non-judicial in nature. Procedural justice, in contrast, is concerned with whether the procedures used in a given process are considered fair by the participants, and is similarly not restricted to judicial settings.

3、Restorative justice is concerned, as the name implies, with restoring an injured party to his or her pre-injury state and helping the injuring party recognize and redress the injurious nature of his or her acts. Finally, retributive justice looks at the psychology of responding to harms that have be

4、en inflicted. Recent research indicates that retributive and restorative justice principles are, as with the distributive and procedural justice contexts, applicable outside the judicial context. Justice constructs as well as the numbers, their boundaries, etc. For purposes of this rely on the const

5、ructs of justice used by Tom Tyler, by far the most prolific and important of modern justice scholars, and his colleagues in their book, Social Justice in a Diverse Society. Constructs of Justice: Beyond Civil Litigation 259 distribution of resources among competing parties, while a need-based alloc

6、ation might result in a previously disadvantaged party receiving a larger share of the resources, and an efficiency-based allocation might call for distributing a larger share to those parties that produce the most. In a given situation, then, how might one decide which principle(s) should be applie

7、d to make an appropriate allocation determination? There is, perhaps not surprisingly, some dispute about this. Rawls himself felt that the principles apply in some sort of orderly hierarchy, but others have argued that people may use most or all of the principles to some degree, depending on the gi

8、ven situation . Research in the area of distributive justice also suggests that there may be differences in priority for people of different demographic groups. Gender, race, and cultural background can all affect distribution prioritization, as can cognitive processes such as attributions. Given th

9、e principles that appear to be at work in the distributive justice construct, then, it is not difficult to see how research in this area could tell us much not only about civil justice in courtroom settings, but also about legislative decisions that regulate courtroom outcomes or allocate resources

10、directly. Distributive justice principles would be particularly valuable to examine public satisfaction with administrative agency decision-making, which regulates so much activity in American society, particularly with respect to the allocation or distribution of resources. Procedural Justice Perha

11、ps somewhat surprisingly, distributive justice principles are often less important to disputants than other factors when individuals are asked to evaluate their overall satisfaction with the resolution of some dispute or resource allocation. In many instances, procedural justice principles carry gre

12、ater weight than distributive outcome measures like equity or equality in determining the overall level of satisfaction for parties to a dispute. In other words, individuals who view the dispute resolution process as fair are often more willing to accept outcomes that are objectively less equal or e

13、quitable. Starting with early research by John, a social psychologist, and Laurens Walker, a law professor, into procedural justice, the role of perceptions of procedural justice has been and continues to be a major focus for researchers. Indeed, research into the interactive roles of procedural 260

14、 A. J. Tomkins, K. Applequist and distributive justice indicates that a sense of procedural justice is usually more important than a sense of distributive justice in determining whether an outcome or distribution allocation is likely to be accepted by the parties to a dispute. Procedural justice, as

15、 the name implies, focuses on whether the procedures used to make an allocation determination are fair, without regard to the actual outcome. Tyler identifies four key factors that individuals weigh when determining whether a proceeding is procedurally fair: fairness and neutrality of the decision m

16、aker； opportunity to present ones side of the dispute； trustworthiness of the decision maker； and respectful treatment of all parties during the course of the proceedings. Perhaps least surprising among the four components of procedural justice is the requirement that the decision maker be perceived

17、 as neutral. Although it might seem reasonable that one would prefer to have a dispute heard by a judge known to be biased in favor of the claimants position,2 it is also the case that no one would want to have a matter resolved by a decisionmaker known to be biased against the claimant. Thus, it is

18、 important that the decisionmaker be perceived as neutral by all parties to a dispute in order to prevent either party from feeling that justice has suffered due to the decisionmakers bias. As important as the neutrality of the decisionmaker is the opportunity to present ones side of the dispute in

19、front of that neutral decisionmaker. Research indicates that the opportunity to voice ones position is critical to the overall perception of procedural justice. Indeed, there are reports of instances where even though a party has received everything sought in a dispute, he or she nevertheless report

20、s frustration with the proceedings due to the denial of the opportunity to fully tell his or her story. Tyler reports defendants dissatisfaction with a traffic court judge who routinely dismissed the tickets of those who appeared in court to contest them. The judge reasoned that if the defendants ha

21、d taken the time off their jobs to come to court to fight the matter, they had been sufficiently punished for whatever infraction they might have been charged with. Although the outcome manifestly favored those who contested their traffic tickets, the defendants frequently reported that they felt fr

22、ustrated with the outcome because they were not given the opportunity to present their case before the decision was rendered. Many of them had gone to some lengths to prepare their casetaking pictures of the scene or arranging witnesses only to have all charges dropped before they could tell their side of the story. Despite the positive distributive outcome, they were disturbed by the fact that their voice was not heard. Related but not identical to the neutrality of the decisionmaker is his, her, or their trustworthiness. A biased decisionmaker by definition will not be deemed trustworthy