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Due process

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Due process is the term for the legal requirement a government must follow in respecting all of a person's legal rights. It binds the government into exactly following the rule of law when dealing with its people. Most often, it is used in reference to criminal trials or the taking of land. Due process is usually set up in order to protect individuals from any form of arbitrary punishments or burdens. It is one of the cornerstones of the rule of law, as opposed to rule of men, because it removes arbitrary powers from government officials.

Herbert Packer depicts criminal justice as a battle between two competing models — crime control and due process. The former is more concerned with conviction rates and the effective suppression of crime, the latter concerns the fair trial rights of defendants and rules of evidence that favour the defence to balance their lack of resources. Packer describes the due process model as throwing obstacles in front of the prosecution that they must get past before a defendant can be convicted. It should be stressed that both models are still interested in convicting criminals, but they differ in their approach to rules of procedure.[1]

In the Magna Carta, due process is referred to as "legal judgement of peers" and the "law of the land".

The Universal Declaration of Human Rights is generally considered to contain the benchmark for human rights standards to be applied globally, and includes many due process rights.

Further due process rights can be found in the International Covenant on Civil and Political Rights.

In the United States[edit]

In the US, it was first established in the Constitution with Amendment V. It was later revisited in Amendment XIV to protect people from state and local government that wouldn't provide due process. It is noteworthy that this amendment pertains to any person, not just citizens. The ideas that due process provide for include:

  • When property is taken from a person, the owner must be compensated
  • The right to a competent, public, and fair trial
  • The government can only take away property for public purposes
  • The right to be present at one's trial
  • Taxes may only be levied for public purposes
  • The right to an impartial jury
  • Laws must be written in such a way so that any reasonable person may understand what constitutes criminal behavior — The vagueness doctrine states that criminal law must not be vague and must explicitly define the conduct that is punishable. The vagueness doctrine is based on the due process clauses of the Fifth and Fourteenth Amendments.[2] Together, the Fifth and Fourteenth Amendments are overwhelmingly the most cited amendments in judicial opinions.[3]
  • The right to be heard in one's own defense

Lately, due process has become an issue in regards to the detention of suspected terrorists in places such as Guantanamo Bay.

In Europe[edit]

Europe has rights too! Yessir, they do. The European Convention for the Protection of Human Rights and Fundamental Freedoms (which, being a fucking mouthful, is often shortened to ECHR) provides for many due process rights, including, but not limited to:

  • the right to be presumed innocent until proven guilty.
  • the right to be free from arbitrary detention, including the right the have the legality of one's detention examined by a court, and compensation for those unlawfully detained.
  • the right to defend oneself, or to have counsel of one's choice, free if one does not have sufficient funds.
  • the right to examine prosecution witnesses, and to obtain and examine witnesses under the same conditions as prosecution witnesses.

If you're looking for a comprehension analysis of how these rights have been implemented by the European Court and by national courts, you're screwed. But any good textbook on European Human Rights will do.

See also[edit]

External links[edit]


  1. [ "Two Models of the Criminal Process" by Herbert Packer (1964) 113 University of Pennsylvania Law Review 113(1):1-68.
  2. vagueness doctrine Legal Information Institute, Cornell Law School.
  3. The states that produce the most doctors, artists and writers, and more! by Andrew Van Dam (August 18, 2023 at 6:00 a.m. EDT) The Washington Post.