My civil procedure professor once suggested that there was no reason to discuss procedural versus substantive due process because they are really the same thing. If that’s the case, then the titles remain as vestigial reminders of the past and present reminders that academics can sometimes create distinction without difference just for the sake of discussion.

The purpose of either form is to promote and protect fairness. When we talk about the process that is due someone, we refer to the safeguards that shield that person as he traverses through the process – which will result in an outcome that is fair and proper. With this perspective, it seems the two cannot be separated and the only essential element is fairness. It doesn’t seem to matter whether the seeds or the fruit are fair: the whole system, being consistent and homogenous, is therefore fair.

When defining our view of what fairness is, it may be easier to talk about behaviors that aren’t fair, than behaviors that are. Perhaps, collectively, we have a better sense of what is unfair (and should be prohibited) than what is fair (and should be required). That is, our lowest thresholds are more likely to be alike than our highest ideals. And so what we get is a restrictive list of don’ts.

I can’t think of a judicial system with more judges, who operate more often, on a larger set of people, with more significant decisions to be made, than people who date. I can’t dictate what level of fairness people should exercise – these are their decisions to be made, after all. But was fairness supposed to be self serving?

A lot of emphasis is put on the procedure of dating. Specifically, we talk about what the other person did and why it wasn’t correct. Again, we seem to have an understanding of what violates the rules, but vary on what should be extolled.

So we date and have a variety of opportunities to interact in a diversity of situations. Are we to marry the person who, while dating, doesn’t violate the rules? maybe just rarely and not very egregiously? And if we do, do we necessarily get what we thought we were getting? That is, if, as above, we take a series of steps that are all fair we get a fair outcome. Does that conclusion follow here?

Ask someone to describe who they want to marry. He or she will tell you about a person that has this certain feature, has that sense of humor and does some certain job. What is this, but a substantive description? We envision our ideal mate as having certain characteristics. Do we talk about procedure?

There is where, perhaps, the two are appropriately conflated. But before discussing that, I’d like to highlight my central premise: does focusing on the process get us the substance that we want? do we really just want someone who is good at the game?

Maybe procedure and substance are the same with people, too. Does an honest person tell a lie? Does a hard worker take a day off? As Batman Begins taught us, "it’s not who you are but what you do" that defines you. I guess there really isn’t a way to directly observe character. Our next best thing is watching people and interacting with them, filling in the gaps with assumption, then surmising what their character really is. If what we saw was a good thing, we hope that they’re consistent and that the behavior was demonstrative. If we saw something bad, we can hope that it was anomalous.

So let’s assume that we can only judge people by what they do. What do we learn from dating? Of course we pick up on those holistic traits and some of the nuances. We’re also learning how good they are at dating. To resolve my premise, we must know how this knowledge informs us – substantively. They are good at dating. Therefore, what?

Perhaps the guy called the girl the right number of days after a date. Can she conclude that he’s a considerate person? that he wants to talk to her? that he strictly adheres to the rules of dating? Does following the rules indicate a trait? that he’s interested in her enough that he’ll follow silly rules, because he thinks that’s how you get what you want in this game? Sure that might be flattering. But what have we learned about him substantively?

Perhaps he opens a car door for a date. Is it just because he knows she’ll think he’s a jerk if he doesn’t? Yes, a lot of these questions are intertwined with motive. But before we can connect behavior with character traits, don’t we need to understand motive? That’s another topic for another day, for sure.

What I’m trying to get at here is that we can be pretty hard on people for not following the rules of dating. Is it because we think they’re bad people for breaking the rules? At a job interview lunch, poor table manners may turn a potential employer off. Isn’t that the same issue? Using the wrong fork tells you something about someone’s character?

Maybe the rules of dating, like dinner etiquette, are sometimes arbitrary. But after generations of refinement, perhaps they’re the best benchmark we have.

Still, I’m left wondering if we’ve focused on procedure over substance. And isn’t substance what we want? This is a game that we have to play. But remember that the game is only a means to an end. This isn’t baseball – take your eyes off the ball. Don’t just play to win. Make sure you’re on the right team.

Tags: 3 Comments