Due Process

Due Process: Nomos XVIII

J. ROLAND PENNOCK
JOHN W. CHAPMAN
Copyright Date: 1977
Published by: NYU Press
Pages: 396
https://www.jstor.org/stable/j.ctt9qg74v
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  • Book Info
    Due Process
    Book Description:

    Human Nature in Politics brings the competences and perspectives of law, philosophy and political science to bear on an imporant subject seldom treated at book length. The subject of human nature in politics is as old as systematic thought about politics. Out of favor for a period in modern times, it is now once more the subject of attention by political theorists who often borrow heavily from the disciplines of biology and psychology. The plurality of their approaches and insights is reflecteed in Part I of the book: Perspectives on Human Nature.Although appeals to human nature have historically been made by both radicals and conservatives, it is the latter who have more typically sought support from this source. However, modern radicals are beginning to re-explore the subject, as is evidenced in the second section on "Human Nature and Radical Political Thought." In the concluding section of the book, four authors analyze the question of "Rationality and Human Nature" and, with a broader interpretation of rationality, find bases in human nature for some confidence that politics need not be an irrational enterprise. The bibliography at the end of the volume is of particular value for all students of political theory. Thirteen outstanding authors contribute to this volume, which must be of interest to legal philosophers and students of jurisprudence in all English-speaking countries.

    eISBN: 978-0-8147-6888-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. PREFACE
    (pp. vii-x)
    J. W. C. and J. R. P.
  3. Table of Contents
    (pp. xi-xii)
  4. CONTRIBUTORS
    (pp. xiii-xiv)
  5. INTRODUCTION
    (pp. xv-xxxiv)
    J. ROLAND PENNOCK

    The meaning of the phrase “due process of law” takes us deep into history, deep into philosophy, and, were it to be fully expounded—which is impossible—far into the future, for it is evergrowing. Its roots grow out of an intriguing blend of history and philosophy—a blend also, as Charles Miller remarks, “of political symbolism and legal efficacy, both aided by semantic openness”(infra). As is well known, the phrase “due process of law” became the official English translation, enshrined in numerous reissues of Magna Carta, of the originalper legem terrae, “by the law of the land.” It...

  6. PART I
    • 1 THE FOREST OF DUE PROCESS OF LAW: THE AMERICAN CONSTITUTIONAL TRADITION
      (pp. 3-68)
      CHARLES A. MILLER

      The protean tradition of American due process of law confirms in the life of the law what seventeen volumes of NOMOS have demonstrated in scholarship: that fundamental political and legal ideas, like great works of art, resist final definition and perhaps final understanding. Whether one accepts the jaundiced remark of Thomas Reed Powell that “due process is as due process does,” or the more respectful view of Felix Frankfurter to the same effect, that due process has a “blessed versatility,” a study of the American tradition yields few verities but many varieties of due process.² The idea of due process...

    • 2 DUE PROCESS IN ENGLAND
      (pp. 69-90)
      GEOFFREY MARSHALL

      An American constitutional lawyer might well be surprised at the elusiveness of references to the term “due process of law” in the general body of English legal writing. We all recall (dimly) its occurrence in the Petition of Right in 1628 where it is linked to “the law of the land,” as it was by Sir Edward Coke, who spoke of “the process of the law”—that which is carried out “in due manner or by writ originall of the common law.” l Today one finds no space devoted to due process in Halsbury’s Laws of England, in Stephen’s Commentaries,...

  7. PART II
    • 3 DUE PROCESS
      (pp. 93-125)
      T. M. SCANLON

      In this paper I will offer a general account of how the absence of “due process” can give rise to legitimate claims against institutional actions. I will be concerned particularly to show in what ways claims to due process are grounded in moral principles of political right and how far they depend rather on strategic judgments about the prudent design of social institutions. My account will provide a demarcation of the area within which due process claims are appropriate—an area much broader than “state action”—and provide at least a rough framework for determining when given procedures are adequate...

    • 4 FORMAL AND ASSOCIATIONAL AIMS IN PROCEDURAL DUE PROCESS
      (pp. 126-171)
      FRANK I. MICHELMAN

      One familiar notion of due process is that of an obligation on the part of those who make decisions about the concerns of other individuals to engage in explanatory procedures—procedures in which agents state reasons for their decisions and affected individuals are allowed to examine and contest the proffered reasons. Perhaps also an impartial arbiter or judge may render judgment as to the adequacy of the reasons. A potentially adequate reason can typically be divided into two parts: (1) a general precept, rule, or maxim which is supposed to guide or govern the agent’s decision and action, and (2)...

    • 5 DUE PROCESS, FRATERNITY, AND A KANTIAN INJUNCTION
      (pp. 172-181)
      EDMUND L. PINCOFFS

      It is impossible to legislate decency in human relations. Decency generally requires that a man seriously and adversely affected by an official’s decision be told why the decision was made as it was, and that he be allowed to contest the reasoning that supposedly justifies the decision. Professor Michelman ably exhibits the difficulties that arise in the attempt to reduce these requirements of decency to a set of entitlements under the constitution. On the one hand, the requirements, tacitly acknowledged to be serious and central, cannot be located among constitutional entitlements; on the other hand, a “modest” court will not...

    • 6 PROCEDURAL FAIRNESS AND SUBSTANTIVE RIGHTS
      (pp. 182-205)
      THOMAS C. GREY

      This essay is a rough attempt to sketch some of the general contours of the concept of procedural fairness. Procedural fairness is a concept in some respects broader and in others narrower than due process of law. On the one hand, norms of procedural fairness—a moral concept—apply to processes used in deciding nonlegal disputes. Thus a parent’s decision of a dispute between children might violate notions of fair procedure if the parent listened to only one side of the dispute before deciding it. On the other hand, procedural fairness does not include those fundamental substantive rights which in...

    • 7 DUE PROCESS AND PROCEDURAL JUSTICE
      (pp. 206-228)
      DAVID RESNICK

      Due process is a fundamental constitutional principle in American jurisprudence. It appears in criminal law, civil law, and administrative law; it applies to the actions of such diverse groups as the police, administrative agencies, legislative bodies, and courts of law. As a descriptive concept, it has been used to explain and organize a great variety of existing legal rules and procedures; as a normative principle, it has been used to justify existing rules and procedures and to generate new ones. As part of our Constitution, it has been responsible for the creation of new legal rights. In the name of...

    • 8 ON DE-MORALIZING DUE PROCESS
      (pp. 229-254)
      THOMAS R. KEARNS

      We are inclined to believe that many legal doctrines originate in morality; that they are, more specifically, simply the result of applying the demands of morality to the legal context. This supposition probably has a certain historical validity. It seems likely that in fashioning certain legal doctrines, legislators, judges and legal scholars actually set about to discern the requirements of morality as they pertain to the law. There is, in any case, considerable evidence of this kind of effort in connection with due process, the doctrine whose relation with morality is the main subject of this paper. But the historical...

  8. PART III
    • 9 DUE PROCESS IN A NONLEGAL SETTING: AN OMBUDSMAN’S EXPERIENCE
      (pp. 257-263)
      DAVID J. DANELSKI

      As a university ombudsman, I was especially interested in Frank Michelman’s and Edmund Pincoffs’s discussion of the moral and legal requirements of due process in cases like Roth v. Board of Regents.¹ Several persons in Roth’s position have sought my help as ombudsman in the past two years, and although only a few of them had their contracts renewed, all of them were given reasons for their terminations. This indicates that the standards of due process in some nonlegal settings differ from judicial due process. For academic ombudsmen, those standards are much like the standards discussed by Michelman and Pincoffs....

    • 10 SOME PROCEDURAL ASPECTS OF MAJORITY RULE
      (pp. 264-295)
      GERALD H. KRAMER

      The idea of due process in the broadest sense entails some notion of procedural fairness or appropriateness; or—perhaps more accurately—of appropriate procedures and safeguards, properly applied, having been used in the process of reaching a decision or outcome. These safeguards and principles range from broad principles to quite specific and technical procedural rules. The particular body of rules embodied in our present understanding of the concept is the product of an historical evolutionary process in which it has undergone successive modification and refinement.

      A somewhat analogous body of principles and customs exists in the political domain, where the...

    • 11 MAJORITY RULE PROCEDURE
      (pp. 296-332)
      ARTHUR KUFLIK

      In “Some Procedural Aspects of Majority Rule,” Gerald Kramer formulates several conditions which it might be reasonable to expect a collective decision-making procedure to satisfy. For example, it is desirable that a procedure be (1)decisive(i.e., “sufficiently well-defined and structured to ensure that some decision is finally reached”); (2)impartial(the result should “not depend on the order of the voting or on the labeling of the alternatives”); (3)robust against devious voting(i.e., the procedure should provide no incentive to vote for any proposal or candidate which one would not vote for were the outcome determined solely by...

    • 12 VOTING THEORY, UNION ELECTIONS, AND THE CONSTITUTION
      (pp. 333-352)
      RICHARD A. EPSTEIN

      In his paper, “Some Procedural Aspects of Majority Rule,” Professor Kramer has discussed the ways in which the general notion of due process may be applied to the rules of order used by parliamentary bodies. In the course of that paper, he has elaborated a notion of majority will that he claims has general acceptance in political theory. In this paper, which began as a comment upon his, I shall use his account of the majority will to discuss in the particular context of labor law two distinct but closely related issues. The first of these concerns the degree to...

  9. INDEX
    (pp. 353-365)
  10. Back Matter
    (pp. 366-367)