securing legitimate expectations - rawls (ft chamallas)

To what extent should legal precedent, founded on increasingly unpalatable institutional values, be upheld for the sake of formal justice?

Rawls posits that justice must be grounded in the protection of legitimate expectations, particularly in a system where individuals have good reason to rely on established rules. Formal justice, according to Rawls, is the “impartial and consistent administration of laws and institutions, whatever their substantive principles” (51). This is a powerful argument for stability and predictability in legal systems, where individuals can align their actions with the expectations of the law, knowing that even if they will be treated unjustly (as formal justice does not preclude unjust laws), they will be treated consistently. Individuals will at least “know what is demanded" so that they can "try to protect themselves accordingly; whereas there is even greater injustice if those already disadvantaged are also arbitrarily treated in particular cases when the rules would give them some security” (51). Formal justice, while perhaps necessary, is not the same as substantive justice; Rawls questions if it might be better to "alleviate the plight of those unfairly treated" by departing from existing norms - indeed he definitely advocates for substantive justice throughout the text! The extent to which we may do this, "especially at the expense of expectations founded in good faith" (51) is what yields two competing considerations: the importance of stability and the protection of legitimate expectations on the one hand, and the need for substantive justice on the other. 

If we look back to Chamallas’ critique of tort law’s treatment of sexual violence cases, particularly with respect to the role of precedent in maintaining institutional injustice, we are confronted with a philosophical dilemma. Through the concept of ‘preservation through transformation,’ Chamallas contends that the legal system, especially in cases of sexual violence, often operates under a veneer of neutrality, allowing it to preserve the status quo of sexual inequality. In Chamallas’ context, the legal system's continued adherence to these precedents could be seen as upholding formal justice (maintaining consistency in the application of laws) even though the laws themselves perpetuate systemic injustice. This dilemma points to a deeper issue in Rawlsian terms: how do we reconcile the need to preserve stability and legitimate expectations with the need to rectify long standing injustices that are wholly entrenched in our legal precedents? 

The argument for upholding precedent, as Rawls notes, is that individuals benefit from knowing how laws will be applied, even if the laws are unjust. This is particularly true for disadvantaged groups, who might face even greater harm if laws are applied arbitrarily or inconsistently. In the case of sexual violence, victims might be better off if they know the limitations of tort law and can adjust their expectations accordingly. However, this argument implicitly assumes that expectations are immutable; that the status quo should be preserved simply because individuals have come to rely on it. Further, it assumes that people will continue to indefinitely conform their expectations to law, something that simply isn’t true.

Initially, when the injustice of a law is not materially felt by the aggregate, formal justice is a sufficient placeholder for substantive justice. If the sum of social values align more or less with the law, it will not appear to be unjust (even if it is), and this dilemma is not as pressing to the majority. However, over time, our conception of justice will inevitably unmoor itself from previous conceptions, and by extension, from legal precedent. This growing dissonance is at the heart of Chamallas' critique of tort law’s handling of sexual violence. As public consciousness shifts, particularly with movements like #MeToo, it becomes increasingly difficult to justify maintaining legal precedents that no longer reflect the evolving understanding of justice, especially when those precedents perpetuate harm to vulnerable groups.

Given this, Rawls (and, most certainly, Chamallas) would likely argue that the need for substantive justice outweighs the need to uphold outdated precedents. For him, stability is important, but it cannot be pursued at the cost of fairness.