Due process of law is a legal concept which can be found in many nations around the world. Globally, there is a widely held belief that people are entitled to fair treatment under the law and that legal systems must protect the rights of individuals who come into contact with the system. In some nations, due process is explicitly defined and protected under that law, while in others, it may not be specifically spelled out or referred to by name, but it still plays a role in the legal system.
There are two key aspects of due process. The first is procedural due process of law, which is concerned with the way in which laws are carried out. Laws must be applied equally to all, reinforced consistently, and the enforcement of the law must follow established guidelines. This includes activities such as criminal procedure, which follow established guidelines. Failure to provide people with procedural due process can result in a challenge or mistrial because people may argue that they were not treated fairly under the law.
Substantive due process of law involves the question of whether or not a law is legal in the first place. Many nations have legal protections for certain activities with which the government cannot interfere. If it can be demonstrated that an activity falls under one of these protections, a law which restricts it may be considered a violation of substantive due process.
Substantive due process can get very complicated, because often legal authorities do not have laws which are conveniently spelled out. Thus, they must look at the spirit of the law when evaluating a case to determine whether or not the case violates the law. For example, if the law prohibits racial discrimination, it may not specifically say “it is not legal to ban Asians from owning property,” but a law doing just that could be struck down under the argument that it clearly violates the spirit of antidiscrimination laws.
Challenges on the grounds of due process of law come up routinely in legal systems in which this right is protected. In these systems, there is a belief that the legal system should be accessible to all, and that all citizens should be equal in the eyes of the law. Cases in which these beliefs are not upheld or are undermined may be considered violations of due process of law.
