Due Process or Justice

Another fundamental conflict in rights theory is which is more important Due Process or Justice? It may occasionally happen that laws are not just in all cases. That deciding a case by the law is unjust, but deciding it on the basis of what feels just or right is not really legal.

If you adopt due process, the proper exercise of established laws, you must accept an occasional injustice when the law does not properly fit the situation. If you demand a court which decides each case on the basis of what feels right to them, you have government by edict and not government by law.

This problem goes back to our earliest recorded civilizations. In Egypt the Pharaohs chief officer or Vizier took an oath to decide all cases in accordance with existing tradition. This is a guarantee against arbitrary edicts, and very similar to the Constitutional guarantee against Ex Post Facto laws. Hammurabi is justly famous for his legal code. Greek tradition records when laws were first written down in Athens and it was made illegal to judge a case except by existing written laws.

All of these show the ancient existence of a recognized need for Due Process as a right in our earliest societies. This again ties in directly to the right to act in self interest and expect reward to be tied to actions. If legal decisions are made arbitrarily, then rewards and punishments are not tied to actions. If rewards are not tied to actions then it is impossible to act in ones own self interest because there is no telling if you will be able to reap the fruits of your efforts.

All of these rights seem to be defending this one facet of human nature. If it is not protected the springs of human nature that produce motivated work and stimulate ingenuity and invention are crippled or dried up.

Still there is a similar expectation of justice sometimes trumping the law. Rome had it’s courts of equity, the Federal Justice system combines courts of equity with courts of law.

What does equity mean in a legal sense? The answer may be found in “The Federalist Papers” number 80,

An additional guarantee of equity in the courts is the system of Jury trial discussed in detail in the section of this book on that issue. A Jury has not just a right but a duty to ignore the law and refuse to convict if a law appears unjust in a given case or the mandatory penalty too harsh.

Our system protects both justice and due process but it is written so that if it errs, it errs on the side of the Citizen. It is juries of Citizens who have the right to nullify a law. The guarantees of due process are intended to protect the Citizens from an arbitrary government. The guarantee of due process is not designed or meant to guarantee the right of Citizens to use the letter of the law to abuse other Citizens.

Truth is a two edged sword. Sometimes it appears that the protection of one citizens rights denies another citizen a right to justice. At others it appears that penalties invoked against companies and businesses are so harsh as to destroy the connection between work and reward. Companies cannot stay in business if bankrupted by lawsuits.

Doctors are striking because of the cost of malpractice insurance. It is almost impossible to find a gynecologist in Texas, or so I hear.

All real rights derive from a persons need to be able to act effectively in their self interest. When that action involves destroying another persons same right, it ceases to be a right. No person can have a right to violate other persons rights.

Still, it can be seen that the right to Due Process is an ancient right which has been found necessary to legally protect in most of history. It is possibly the only absolutely necessary right in any legal system. Without Due Process, all the other rights can be violated arbitrarily at will. Due Process is the guardian and protector of all other Rights. It is the most Sacred and Important of all Rights.

There is a tension between this and the right to Justice because laws and men are not perfect. Legal systems must reach an equitable compromise on this issue. The problem with allowing the Judicial system to decide cases arbitrarily in favor of one party or another is that it destroys any sense of trust in the system. Citizens and businesses cannot feel secure that if they follow the rules and work to earn their rewards they will receive and be able to keep the fruits of their labor. The exceptions to the law which make Justice conflict with Due Process are a minority. To create a policy which sets such exceptions above the right to Due Process is to sacrifice justice in the majority of cases to a minority. As a general policy Due Process must trump Justice lest Party create a system that is systematically unjust.

This apparent conflict between Due Process and Justice occurs when either of these principles is carried to an extreme which violates Natural Law. The same Natural Law which underlies Hospitality, Property Rights, and Adam Smith’s “Invisible Hand” governs this issue as well. When a person plays by the rules and wins his reward is just. This is guaranteed by the guarantee of Due Process or government by Law. If he becomes so clever at playing by the rules that he can use them to deny another person a fair recompense for labor or goods, then that other person is denied a direct relationship between work and reward. The first person believes he deserves his profit because of his cleverness, the second person believes he deserves his profit because of his labor. When either is denied a just profit, Natural Law is outraged. This outrage becomes institutionalized in Positive law in the conflict between Due Process and Justice and law courts and courts of Equity.

When cleverness in the law bilks honesty out of fair reward for labor done, all the economic problems of slavery result. This violation of Natural Law cripples the economy of the society which allows it to the extent that it is allowed. When due process is flouted consistently on party lines, the poor against the rich for example, no one is motivated to invest, develop businesses, or stimulate the economy. All the problems associated with Socialist Rights, resulting in a slave state result, and the economy of the society which allows is it crippled to the extent that it is allowed. In both these cases violation of the Natural Law which requires a reliable and trustworthy relationship between work and reward results in a crippled economy, a weak state, and a comparatively poor population.

Both due Process and Justice attempt to formally institutionalize protection of this fundamental principle in the Law. The apparent conflict between them occurs when either is carried to an extreme which violates the fundamental principle which underlies them both.

To apply the Aristotelian principle here, “Virtue, then, is a state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it. Now it is a mean between two vices, that which depends on excess and that which depends on defect; and again it is a mean because the vices respectively fall short of or exceed what is right in both passions and actions, while virtue both finds and chooses that which is intermediate. Hence in respect of its substance and the definition which states its essence virtue is a mean, with regard to what is best and right an extreme.”

The rational principle here is the need for a strong relationship between action and reward. The extremes are Due Process enforcing the letter of the Law in a way which produces injustice and a lack of Due Process allowing arbitrary legal decisions based on favoritism and politics. The middle ground between these extremes may be called Justice.