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2 Ibid.,P.97. 2 Dworkin,Op. Cit., P. 135. 5 Rawls,Op. Cit., P. 9. 8 Iredell

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2 Ibid.,P.97. 2 Dworkin,Op. Cit., P. 135. 5 Rawls,Op. Cit., P. 9. 8 Iredell NOTES INTRODUCTION 1 F. A. Hayek, Law, Legislation and Liberty, Vol. 2 (London: Routledge and Kegan Paul, 1976), p. 97, footnote omitted. 2 Ibid.,p.97. 3 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 183. CHAPTER 1 1 For a not dissimilar account of concept/conception distinction, see John Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972), pp. 5, 9-10; see also Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978), pp. 134-136. On definitions of ethical concepts, see Richard Robinson, Definition (Oxford: Qarendon Press, 1950), pp. 165-170. 2 Dworkin,op. cit., p. 135. 3 Aristotle, The Nicomachean Ethics, V, 1.15-2.12 (trans. F. H. Peters). 4 John Stuart Mill, 'Utilitarianism', in Utilitarianism, On Liberty, Essay on Bentham, ed. by Mary Warnock (London: Collins, 1962), p. 306. 5 Rawls,op. cit., p. 9. 6 See Chapter 4.2. 7 In Chapter 9.1. 8 Iredell Jenkins, Social Order and the Limits of Law (Princeton: Princeton University Press, 1980), p. 324. 9 Henry Sidgwick, The Methods of Ethics (Chicago: The University of Chicago Press, 1962; 1st. ed.1874), pp. 265-266. 10 Brian Barry,Political Argument (London: Routledge and Kegan Paul, 1965), p. 44. 11 Joel Feinberg, Social Philosophy (Englewood Cliffs: Prentice-Hall, 1973), pp. 98-99, and in a much more developed form in his essay 'Non comparative Justice', in Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), reprinted from The Philosophical Review (1974). Subsequent references in brackets in the main text discussing Feinberg's views are to the pages of this essay. 12 Phillip Montague, 'Comparative and Non-Comparative Justice', Philosophical Quarterly 30 (1980), p. 132. 13 This example of 'absolute' (as opposed to 'comparative') principle of justice is given by Barry, op. cit., p. 44 in connection with p. 96. 14 See pp. 160-161 below. 15 Seepp.178-181 below. 16 Barry,op. cit., pp. 96 and 44. 17 Rachel Karniol and Dale T. Miller, 'Morality and the Development of Conceptions 285 286 NOTES of Justice', in Melvin J. Lerner and Sally C. Lerner, eds., The Justice Motive in Social Behavior (New York and London: Plenum Press, 1981), p. 76. 18 See Wojciech Sadurski, '''Non-Comparative Justice" Revisited', Archiv fUr Rechts­ und Sozialphilosophie 69 (1983), pp. 504-514, esp. 505-507. 19 Eugene Dupreel, Traite de morale, Vol. 2 (Bruxelles: Presses Universitaires de Bruxelles, 1967; 1st ed. 1932), pp. 485-49l. 20 Friedrich A. Hayek, Law, Legislation and Liberty, Vol. 2 (London: Routledge and Kegan Paul, 1976), p. 3l. 21 Friedrich A. Hayek, New Studies in Philosophy, Politics, Economics and the History ofIdeas (London: Routledge and Kegan Paul, 1978), p. 58. 22 See excellent discussion by John Kleinig, 'Good Samaritanism', Philosophy and Public Affairs 5 (1976), pp. 382-407, esp. pp. 391-398. 23 John Stuart Mill, 'On Liberty', in Utilitarianism . .. ,op. cit., p. 137. 24 Aristotle,op. cit., V, 2.12. 2S See Chapter 8.1. below. 26 James Gordley, 'Equality in Exchange', California Law Review 69 (1981), p. 1589. 27 Georges Burdeau, Traite de science politique, Vol. V (Paris: Librarie generale de droit et de la jurisprudence), p. 89. 28 Halsbury's Laws of England (London: Butterworths, 1977), 4th ed., Vol. 18, p. 344. On the development of this doctrine in the United Kingdom, see S. M. Waddams, 'Un­ conscionability in Contracts', Modem Law Review 39 (1976), pp. 369-393. 29 Wood v. Abrey (1818) 3 Madd. 417, at p. 423 per Leach V. C. 30 Fry v. Lane (1888) 40 Ch.D. 312, at p. 322 per Kay J. 31 Horwood v. Millar's Timber and Trading Co. Ltd. [1917] 1 K.B. 305, 311. 32 This Act has been replaced by the Consumer Credit Act (1974). 33 Contracts Review Act, 1980 (N.S.W.), s.7(1). See John Goldring, Joan L. Pratt, D. E. J. Ryan, 'The Contracts Review Act (N.S.W.)', University of N.S. W. LawJournal 4 (1981), pp.1-16. 34 Tasman Dry Cleaners (Balmain)Pty. Ltd. v. Diamond [1960] N.S.W.R.419. 3S A. Schroeder Music Publishing Co. Ltd. v. Macaulay [1974] 3 All E.R. 616. 36 Ibid., at p. 623. See also Lloyds Bank Ltd. v. Bundy [1974] 3 All E.R. 757. 37 See Lord Denning M. R. in Clifford Davis Management Ltd. v. W.E.A. Records Ltd. [1975] 1 All E.R. 237, a case concerning two musicians who signed an evidently unfair contract with their manager. He said (at p. 240): "They were composers talented in music and song but not in business. In negotiation they could not hold their own". 38 U.S. v. Bethlehem Steel Corp., 315 U.S. 289, 326-328 (1941), Frankfurter, J., dissenting. 39 See a recent powerful restatement of this proposition by Anthony T. Kronman, 'Contract Law and Distributive Justice', Yale Law Journal 89 (1980), pp. 472-511. 40 Scott v. U.S., 79 U.S. 443, 445 (1870). On the recent development of this doctrine in the U.S., see particularly M. P. Ellinghaus, 'In Defense of Unconscionability', Yale Law Journal 78 (1969), pp. 757-815 and John E. Murray, 'Unconscionability: Uncon­ scionability', University of Pittsburgh Law Review 31 (1969), pp. 1-80. 41 Frostifresh Corp. v. Reynoso, 52 Misc. 2d 26, 274 N.Y.S. 2d 757 (Dist. Ct. 1966); 54 Misc. 2d 119, 281 N.Y.S. 2d 964 (Sup. Ct. 1967). 42 Campbell Soup Co. v. Wentz, 172 F.2d 80, 83 (3d. Cir. 1948). 43 See, e.g., note 38 above. NOTES 287 44 See, e.g., Richard E. Epstein, 'Unconscionability: A Critical Reappraisal', Journal of Law and Economics 18 (1975), pp. 293-315 and Arthur Allen Leff, 'Unconscionability and the Crowd - Consumers and the Common Law Tradition', University of Pittsburgh Law Review 31 (1970), pp. 349-358. 45 Thomas Hobbes, Leviathan, ed. by C. B. Macpherson (Harmondsworth: Penguin, 1981,lded.1651),p.208. 46 Matthew, 20.1-16. 47 Frankfurter, J., in 315 U.S., pp. 326-327 (quoting Holmes, J.). 48 Abbott, C. J., quoted with approval by Frankfurter, J., ibid., p. 327. 49 Ronald Dworkin, op. cit., chs. 2-4, 13. 50 Hobbes,op. cit., p. 388. 51 John Austin, Lectures on Jurisprudence or the Philosophy ofPositive Law (London: John Murray, 1920, 1st ed. 1832), p. 108. 52 Hans Kelsen, What Is Justice? (Berkeley: University of California Press, 1971), p.430. 53 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), in particular pp. 363-366. 54 Lon 1. Fuller, The Morality of Law (New Haven: Yale University Press, 1972, 1st ed. 1964), pp. 33-39. 55 Ibid., p. 133. 56 Rawls,op. cit., p. 59. 57 This example is discussed by Feinberg in Social Philosophy, op. cit., pp. 106-107. 58 1. 1. Fuller, 'Positivism and Fidelity to Law', Harvard Law Review 71 (1958), p.474. 59 Fuller,Morality •••• op. cit., p. 39. 60 Ibid., p. 39. 61 Ibid., p. 96. 62 See also Peter P. Nicholson, 'The Internal Morality of Law: Fuller and His Critics', Ethics 84 (1974), pp. 307-320. 63 H. 1. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 206. 64 See A. M. Honore, 'Social Justice', McGill Law Journal 8 (1962), p. 82. 65 Dupreel, op. cit., pp.485-489; D. D. Raphael, Justice and Liberty (London: Athlone Press, 1980), pp. 80-93; Sidgwick, op. cit., p. 293; Chaim Perelman, The Idea of Justice and the Problem of Argument (London: Routledge and Kegan Paul, 1963), p. 63. 66 315 U.S., pp. 325-326. 67 See Julius Stone, Legal System and Lawyers' Reasoning (Sydney: Maitland Publica­ tions, 1968, 1st ed. 1964), pp. 263-267. 68 W. J. Wagner, 'Equity and Its Socialist Equivalent in the Polish Legal System', Review of Socialist Law 1 (1975),pp.151-169. 69 Quoted ibid., pp. 156-157. 70 315 U.S., pp. 312-313. 71 Hans Kelsen, General Theory of Law and State (Cambridge, Mass.: Harvard Univer­ sity Press, 1946), p. 410 (trans. A. Wedberg). 72 Dworkin,op. cit., chs. 2-4 and Appendix. 73 Ibid., p. 342. 74 Ronald Dworkin, • "Natural" Law Revisited', University of Florida Law Review 34 (1982), p. 165. 288 NOTES 75 Dworkin, Taking •• • ,op. cit., p. 66. 76 Ibid., p. 342. 77 Ibid., p. 102. 78 Ibid., p. 102. 79 Ibid., p. 65. 80 See, in particular, Neil MacCormick, Legal Right and Social Democracy (Oxford: Oarendon Press, 1982), ch. 7. 81 Dworkin, Taking ••. ,op. cit., p. 126. 82 See, e.g., Norman P. Barry, An Introduction to Modem Political Theory (London: Macmillan, 1981), p. 119. 83 Rawls,op. cit., p. 86. 84 See also William Nelson, 'The Very Idea of Pure Procedural Justice', Ethics 90 (1980), pp.502-51!. 85 Rawls,op. cit., p. 86. 86 Ibid., pp. 85-86. 87 Ibid., p. 85. 88 In the following pages I discuss legal procedural justice, but of course the concept of 'procedural jus.tice' is broader: it may be applied to an account of procedures governed by any rules, not necessarily legal. 'Due process of law' and 'natural justice' (in the technical meaning of this last term) are therefore narrower concepts than 'procedural justice' but I think that conclusions drawn from the exploration of those concepts may be applied to procedural justice tout court. On the other hand, the American doctrine of 'due process of law' also contains certain principles of a substantive rather than procedural character (liberty of contract, right to privacy, etc.) but this need not bother us here: we take it as an illustration of procedural principles and discuss it here only in so far as it imposes constraints on procedure.
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