Due process
Legal principle requiring state to respect all legal rights owed to a person.
Due process of law is how a state applies every legal rule and principle relevant to a case, ensuring that a person’s legal rights are respected. It acts as a check on the power of the law, shielding individuals from it. If a government harms someone without following the precise legal path, that is a due process violation and goes against the rule of law. Due process is also often interpreted as a way to limit laws and court proceedings—an idea called substantive due process—so that judges, rather than lawmakers, can define and guarantee basic fairness, justice, and liberty. This interpretation has sparked debate.
The concept developed from clause 39 of Magna Carta in England. The phrase “due process” first appeared in a 1354 law that restated that clause: no person of any status could be removed from land, imprisoned, disinherited, or killed without being brought to answer by due process of law. As English and American law grew apart, due process stayed in force in England and was later written into the U.S. Constitution.
In 1215, Magna Carta’s clause 39 promised that no free man would be seized, imprisoned, stripped of rights or property, outlawed, exiled, or otherwise deprived except by the lawful judgment of his peers or the law of the land. The charter itself became part of the law of the land, and clause 61 let a group of 25 barons decide by majority vote what the king must do if he offended anyone. This established the rule of law by requiring the monarchy to obey the law and limiting how it could change the law. However, in the 1200s, these protections may have applied only to landowners, not ordinary peasants.
Later, shorter versions of Magna Carta were issued, and clause 39 was renumbered as clause 29. The phrase “due process of law” first appeared in a 1354 statute under Edward III, stating that no person of any estate or condition could be removed from land, imprisoned, disinherited, or killed without being brought to answer by due process of law.
In 1608, jurist Edward Coke wrote that “law of the land” meant the common law, statute law, or custom of England—essentially, the due course and process of law. In 1704, in the case *Regina v. Paty*, the Queen’s Bench explained that due process of law meant that a person could not be deprived of life, liberty, or property without being brought to answer by ordinary legal process. The House of Commons had jailed John Paty for pursuing a legal action, but the court ruled that due process had not been violated. Chief Justice Holt disagreed, arguing the commitment lacked legal authority. Paty was freed when Queen Anne prorogued Parliament.
Over centuries, British laws and writings listed various requirements as part of “due process” or “law of the land,” but these were usually seen as what existing law demanded, not what due process inherently required. As the U.S. Supreme Court later noted, a due process requirement in Britain was not essential to the idea itself but was just an example of how it worked in practice. Ultimately, English references to due process did not limit government power. Legal scholar John V. Orth says these great phrases lost their vitality, largely because of parliamentary supremacy in the UK, which led to hostility toward judicial review as an undemocratic foreign idea. Some scholars have occasionally interpreted Lord Coke’s rulings differently.
- Field
- Law and constitutional rights
- Jurisdictions
- England (historical), United States (constitutional)
- Key associated concept
- Rule of law, natural justice, procedural justice
Lore & Background
Due process of law is the state’s application of all legal rules and principles to a case so that every legal right owed to a person is respected. It balances the power of the law of the land and protects the individual from that power. When a government harms a person without following the exact course of the law, a due process violation occurs, offending the rule of law. The concept has also been interpreted to limit laws and proceedings themselves, allowing judges to define fundamental fairness, justice, and liberty—a controversial interpretation. This idea is analogous to natural justice and procedural justice in other jurisdictions, and is expressed as a command that the government must not be unfair or abuse people physically or mentally. The term is not used in contemporary English law, but similar concepts include natural justice (applying to administrative agencies and some private bodies) and the British rule of law as articulated by A. V. Dicey; neither aligns perfectly with the American theory, which contains many implied rights absent from English concepts.
Due process developed from clause 39 of Magna Carta, issued in 1215, which promised that no free man would be seized, imprisoned, stripped of rights, outlawed, exiled, or deprived of standing except by lawful judgment of his equals or by the law of the land. Clause 61 authorized an elected body of barons to determine redress when the King offended against any man, establishing the rule of law by requiring the monarchy to obey and limiting how it could change the law. In the 13th century, these provisions may have referred only to landowners. The phrase “due process of law” first appeared in a statutory rendition of Magna Carta in 1354, stating that no man shall be put out of land, taken, imprisoned, disinherited, or put to death without being brought to answer by due process of law. In 1608, Edward Coke explained that “law of the land” meant by common law, statute law, or custom—by the due course and process of law. In 1704, Queen’s Bench Justice Littleton Powys explained that due process includes all laws in force in the realm, including civil and canon law, and that commitments must be by a legal authority.
Reader's Guide
Due process is significant as a foundational legal concept that originated in Magna Carta and evolved to protect individuals from arbitrary government action. In England, due process did not limit the power of government due to the rise of parliamentary supremacy and hostility toward judicial review. English courts lacked the power to declare an Act of Parliament invalid as a violation of due process. In contrast, American judges became increasingly assertive about enforcing due process, and the legislative and executive branches learned to tailor statutes and actions to constitutional due process requirements. The term is not used in contemporary English law, but similar concepts are natural justice and the rule of law as articulated by A. V. Dicey. Neither concept lines up perfectly with the American theory of due process, which contains many implied rights not found in ancient or modern English concepts. The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause, which deals with the administration of justice.
Did You Know?
- English law does not use the term 'due process' today; instead it uses natural justice and the rule of law as articulated by A. V. Dicey.
- American due process contains many implied rights not found in ancient or modern concepts of due process in England.
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