Due process

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Due process is the legal requirement that the government must respect all legal rights that are owed to a person.[1] Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this is a due process violation, which offends the rule of law.

A judiciary process[change | change source]

Due process has also been frequently interpreted as limiting laws and legal proceedings. This means that judges—instead of legislators—may define and guarantee basic fairness, justice, and liberty. This interpretation has proven controversial, and is seen as being closer to the concepts of natural justice, and procedural justice used in various other jurisdictions. This interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.

History[change | change source]

Due process developed from clause 39 of the Magna Carta in England.[2] The Magna Carta called it "the law of the land" which became the more modern term due process.[3] When English and American law gradually went in different directions, due process was not upheld in England, but did become part of the Constitution of the United States. It is found in the Fifth Amendment which says "No person shall…be deprived of life, liberty, or property, without due process of law,".[1] It is applied to all states by the Fourteenth Amendment.[1]

In other legal systems[change | change source]

Due process is not used in contemporary English law. But it recognizes two similar concepts are natural justice and the British constitutional concept of the rule of law. However, neither concept lines up perfectly with the American theory of due process. It contains many implied rights not found in the ancient or modern concepts of due process in England.[4]

Islamic law provides for due process.[5] It includes the presumption of innocence, the right to remain silent and a fair and public trial before a judge.[5] There is no jury and both parties, the injured party and the accused, usually present their own cases.[5]

Scandinavia gets high ratings by the World Justice Project.[6] They were noted for their criminal justice system including their observance of due process.[6] As of the 2013 Rule of Law Index, the Scandinavian countries were rated higher than the US for due process.[6] The three lowest rated countries in the index were Afghanistan, Zimbabwe and Venezuela.[6]

References[change | change source]

  1. 1.0 1.1 1.2 "due process of law". Law.com. Retrieved 30 October 2015. 
  2. "CRS Annotated Constitution: Due Process". Cornell University Law School. Retrieved June 30, 2014. 
  3. Magna Carta and its Modern Legacy, eds. Robert Hazell; James Melton (Cambridge; New York: Cambridge University Press, 2015), p. 10 & n. 23
  4. Geoffrey Marshall, 'Due Process in England', Due Process: Nomos XVIII, eds. James Roland Pennock; John W. Chapman (New York: New York University Press, 1977), pp. 69–70.
  5. 5.0 5.1 5.2 "The Origins of Islamic Law". Constitutional Rights Foundation. Retrieved 24 December 2015. 
  6. 6.0 6.1 6.2 6.3 Per Liljas. "Want Justice? Try Scandinavia". Time. Retrieved 24 December 2015. 

Other websites[change | change source]