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Due process is the legal requirement that the
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, Un ...
must respect all
legal rights Natural rights and legal rights are two types of rights. * Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', ''fundamental Fundamental may refer to: * Foun ...
that are owed to a person. Due process balances the power of
law of the land ''Law of the Land'' (1993–1999) was an Australian Australians, colloquially referred to as "Aussies", are the citizens, nationality, nationals and individuals associated with the country of Australia. Between 1788 and the Second ...
and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal of the , published by (OUP). It traces the historical development of the English language, providing a compreh ...

rule of law
. Due process has also been frequently interpreted as limiting
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its bounda ...
s and
legal proceedingsLegal proceeding is an activity that seeks to invoke the power of a tribunal in order to enforce a law. Although the term may be defined more broadly or more narrowly as circumstances require, it has been noted that " e term ''legal proceedings'' inc ...
(see
substantive due process In United States constitutional law United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution The Constitution of the United States is the supreme law of the U ...
) so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial. Analogous to the concepts of
natural justice In English law English law is the common law List of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts o ...
, and
procedural justice Procedural justice is the idea of fairness in the processes that resolve disputes and allocate resources. One aspect of procedural justice is related to discussions of the administration of justice and legal proceedings. This sense of procedural ...
used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. The term is not used in contemporary
English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Blac ...
, but two similar concepts are
natural justice In English law English law is the common law List of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts o ...
, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal of the , published by (OUP). It traces the historical development of the English language, providing a compreh ...

rule of law
as articulated by A. V. Dicey and others.Geoffrey Marshall
"Due Process in England"
in ''Nomos XVIII: Due Process'', eds. J. Roland Pennock & John W. Chapman, 69–92 (New York: New York University Press, 1977), 69.
However, neither concept lines up perfectly with the American theory of due process, which, as explained below, presently contains many implied rights not found in either ancient or modern concepts of due process in England.Marshall, 69–70. Due process developed from clause 39 of
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a Royal charter, royal charter of rights agreed to by King John of England at Runnymede, near Windsor, Berkshire, Windsor, on ...

Magna Carta
in England. Reference to due process first appeared in a statutory rendition of clause 39 in 1354 thus: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." When English and American law gradually diverged, due process was not upheld in England but became incorporated in the
US Constitution The Constitution of the United States is the supreme law A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation An organization, or organ ...
.


By jurisdiction


Magna Carta

In clause 39 of
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a Royal charter, royal charter of rights agreed to by King John of England at Runnymede, near Windsor, Berkshire, Windsor, on ...

Magna Carta
, issued in 1215,
John of England John (24 December 1166 – 19 October 1216) was King of England This list of kings and queens of the begins with , who initially ruled , one of the which later made up modern England. Alfred styled himself King of the from about ...

John of England
promised: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."The Text of Magna Carta (1215)
/ref> Magna Carta itself immediately became part of the "
law of the land ''Law of the Land'' (1993–1999) was an Australian Australians, colloquially referred to as "Aussies", are the citizens, nationality, nationals and individuals associated with the country of Australia. Between 1788 and the Second ...
", and Clause 61 of that charter authorized an elected body of 25 barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man". Thus, Magna Carta established the
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal of the , published by (OUP). It traces the historical development of the English language, providing a compreh ...

rule of law
in England by not only requiring the monarchy to obey the law of the land but also limiting how the monarchy could change the law of the land. However, in the 13th century, the provisions may have been referring only to the rights of landowners, and not to ordinary peasantry or villagers. Shorter versions of Magna Carta were subsequently issued by British
monarchs A monarch is a head of stateWebster's II New College DictionarMonarch Houghton Mifflin. Boston. 2001. p. 707. Life tenure, for life or until abdication, and therefore the head of state of a monarchy. A monarch may exercise the highest authority a ...

monarchs
, and Clause 39 of Magna Carta was renumbered "29". The phrase ''due process of law'' first appeared in a statutory rendition of Magna Carta in 1354 during the reign of
Edward III of England Edward III (13 November 1312 – 21 June 1377), also known as Edward of Windsor before his accession, was King of England This list of kings and queens of the begins with , who initially ruled , one of the which later made up modern En ...

Edward III of England
, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." In 1608, the English jurist
Edward Coke Sir Edward Coke ( "cook", formerly ; 1 February 1552 – 3 September 1634) was an English , judge, and politician who is considered the greatest jurist of the and eras. Born into an upper-class family, Coke was educated at , before leavin ...

Edward Coke
wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by ''legem terrae'', the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.." Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of
Queen Anne Queen Anne often refers to: * Anne, Queen of Great Britain (1665–1714), queen of England, Scotland and Ireland (1702–1707) and of Great Britain (1707–1714) **Queen Anne style architecture, an architectural style from her reign, and its revival ...

Queen Anne
) by the
Queen's Bench The Queen's Bench (; or, during the reign of a male monarch, the King's Bench ('), is the superior court in a number of jurisdictions within some of the Commonwealth realms. The original King's Bench, founded in 1215 in England, was one of the ...
, in the case of ''Regina v. Paty''.''Regina v. Paty'', 92 Eng. Rep. 232, 234 (1704) reprinted in
Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas: In the Reigns of the Late King William, Queen Anne, King George the First, and King George the Second
', Vol. 2, pp. 1105, 1108.(1792).
In that case, the
British House of Commons The House of Commons (domestically known as the Commons) is the lower house A lower house is one of two chambers Chambers may refer to: Places Canada: *Chambers Township, Ontario United States: *Chambers County, Alabama *Chambers, Arizon ...
had deprived John Paty and certain other citizens of the right to vote in an election and committed them to
Newgate Prison Newgate Prison was a prison at the corner of Newgate Street and Old Bailey Street just inside the City of London, England, originally at the site of Newgate, a gate in the Ancient Rome, Roman London Wall. Built in the 12th century and demolis ...
merely for the offense of pursuing a legal action in the courts. The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows: Chief Justice Holt dissented in this case because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the
British House of Lords The House of Lords, formally The Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled, is the upper house of the Parliament of the United Kingdom. Membership is by ...
, ostensibly to regulate the election of its members. Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.


English law and American law diverge

Throughout centuries of British history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land". That view usually held in regards to what was required by existing law, rather than what was intrinsically required by due process itself. As the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the Federal judiciary of the United States, federal judiciary of the United States of America. It has ultimate and largely Procedures of the Supreme Court of the United ...

United States Supreme Court
has explained, a due process requirement in Britain was not "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used".''
Hurtado v. California ''Hurtado v. California'', 110 U.S. 516 (1884),. was a landmark case decided by the Supreme Court of the United States, United States Supreme Court that allowed State governments of the United States, state governments, as distinguished from the Fed ...
'',
Ultimately, the scattered references to "due process of law" in
English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Blac ...
did not limit the power of the government; in the words of American law professor John V. Orth, "the great phrases failed to retain their vitality." Orth points out that this is generally attributed to the rise of the doctrine of
parliamentary supremacy Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty Sovereignty is th ...
in the United Kingdom, which was accompanied by hostility towards
judicial review Judicial review is a process under which executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, ...
as an undemocratic foreign invention. Scholars have occasionally interpreted Lord Coke's ruling in '' Dr. Bonham's Case'' as implying the possibility of judicial review, but by the 1870s, Lord Campbell was dismissing judicial review as "a foolish doctrine alleged to have been laid down extra-judicially in Dr. Bonham's Case..., a conundrum
hat A collection of 18th and 19th century men's beaver felt hats A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safet ...

hat
ought to have been laughed at". Lacking the power of judicial review, English courts possessed no means by which to declare government statutes or actions invalid as a violation of due process. In contrast, American legislators and executive branch officers possessed virtually no means by which to overrule judicial invalidation of statutes or actions as due process violations, with the sole exception of proposing a constitutional amendment, which are rarely successful. As a consequence, English law and American law diverged. Unlike their English counterparts, American judges became increasingly assertive about enforcing due process of law. In turn, the legislative and executive branches learned how to avoid such confrontations in the first place, by tailoring statutes and executive actions to the constitutional requirements of due process as elaborated upon by the judiciary. In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:
An American constitutional lawyer might well be surprised by the elusiveness of references to the term 'due process of law' in the general body of English legal writing.... Today one finds no space devoted to due process in Halsbury's '' Laws of England'', in Stephen's '' Commentaries'', or Anson's ''Law and Custom of the Constitution.'' The phrase rates no entry in such works as Stroud's '' Judicial Dictionary'' or Wharton's ''Law Lexicon.''
Two similar concepts in contemporary English law are
natural justice In English law English law is the common law List of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts o ...
, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the
rule of law The rule of law is defined in the ''Oxford English Dictionary The ''Oxford English Dictionary'' (''OED'') is the principal of the , published by (OUP). It traces the historical development of the English language, providing a compreh ...

rule of law
as articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the American conception of due process, which presently contains many implied rights not found in the ancient or modern concepts of due process in England.


United States

The
Fifth Fifth is the Ordinal number (linguistics), ordinal form of the number 5, five. Fifth or The Fifth may refer to: * Fifth Amendment to the United States Constitution, as in the expression "pleading the Fifth" * Fifth column, a political term * Fifth ...
and Fourteenth Amendments to the
United States Constitution The Constitution of the United States is the supreme law A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation An organization, or orga ...

United States Constitution
each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or Americ ...

Supreme Court of the United States
interprets the clauses as providing four protections:
procedural due process Procedural due process is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those inte ...
(in civil and criminal proceedings),
substantive due process In United States constitutional law United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution The Constitution of the United States is the supreme law of the U ...
, a prohibition against
vague In philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those about reason, Metaphysics, existence, Epistemology, knowledge, Ethics, values, Philosophy of mind, mind, and Philosophy of language, lang ...
laws, and as the vehicle for the
incorporation of the Bill of Rights Incorporation, in United States law The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, which prescribes the foundation of the federal governmen ...
.


Others

Various countries recognize some form of due process under
customary A convention is a set of agreed, stipulated, or generally accepted wikt:standard, standards, norm (philosophy), norms, social norms, or wikt:criterion, criteria, often taking the form of a custom. In a social context, a convention may retain the ...
international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nation A nation is a community A community is a social unitThe term "level of anal ...
. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own
citizens Citizenship is a relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection. Each state determines the conditions under which it will recognize persons as its citizens, and t ...

citizens
, the doctrine of
national treatment National treatment is a principle in international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally accepted in relations between nations. It establishes normativ ...
, which also means that both would be vulnerable to the same deprivations by the government. With the growth of
international human rights law International human rights law (IHRL) is the body of international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nation A na ...
and the frequent use of
treaties A treaty is a formal, legally binding written agreement between actors in international law International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally accepted in relati ...

treaties
to govern treatment of foreign nationals abroad, the distinction, in practice, between these two perspectives may be disappearing.


See also

*
Continuance In American procedural law, a continuance is the postponement of a hearing (law), hearing, trial, or other scheduled court proceeding at the request of either or both parties in the dispute, or by the judge ''sua sponte''. In response to delays in ...
*
Crime control Crime control refers to methods taken to reduce crime in a society. Crime control standardizes police work. Penology often focuses on the use of criminal penalties as a means of ussc.gov/2009guid/1a1.htm , publisher=2009 Federal Sentencing Guideli ...
* Fair procedure * Fundamental justice * ''Habeas corpus'' * Peremptory norm * Presumption of guilt * Presumption of innocence * ''Subpoena ad testificandum'' * ''Subpoena duces tecum'' * Prison Litigation Reform Act


Notes


Further reading


''Goldberg v. Kelly''
* * * * * * * * * * * * Shipley, David E
Due Process Rights Before EU Agencies: The Rights of Defense
Article discussing the procedural safeguards that have been recognized in the EU and the parallels between procedural due process in the United States and the rights of defense in the EU. * Sudbury Valley School (1970). Sudbury Valley School#Educational philosophy, Due Process of Law in School. A school where order and discipline is achieved by a dual approach based on a free and democratic framework: a combination of popularly based authority, when rules and regulations are made by the community as a whole, fairly and democratically passed by the entire school community, supervised by a good judicial system for enforcing these laws—due process of law—and developing internal discipline in the members of the community by enhancing their ability to bear responsibility and self-sufficiency. * Discussing potential of liberty rights to overtake equality rights. * "It’s important to remember that even though private employees don’t have constitutional or federal protection, they do have a due process right."


External links


Cornell University Law School
{{Authority control Legal doctrines and principles
Legal terminology {{CatAutoTOC Terms Jargon Terminology Terms Terminology Terminology is a general word for the group of specialized words or meanings relating to a particular field, and also the study of such terms and their use. This is also known as termino ...