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Due Process

Nomos XVIII

Ronald Pennock, John Chapman

Publication Year: 1977

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.

Published by: NYU Press

Title Page, Copyright Page

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PREFACE

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pp. vii-ix

Due process of law is a concept—or at least an idea—that has played a most important role in American constitutional law for the past century. During that period its path has negotiated many turnings, as Charles Miller's essay in this volume details. But at this particular stage in our history, it has taken on special interest and...

CONTENTS

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pp. xi-xii

CONTRIBUTORS

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pp. xiii-xiv

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INTRODUCTION

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pp. xv-xxxiii

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 ever-growing. Its roots grow out of an intriguing blend of history and philosophy—a blend also, as Charles Miller remarks, "of political...

PART I

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1. The Forest of Due Process of Law: The American Constitutional Tradition

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pp. 3-68

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...

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2. Due Process in England

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pp. 69-89

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...

PART II

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3. Due Process

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pp. 93-125

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...

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4. Formal and Associational Aims in Procedural Due Process

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pp. 126-171

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...

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5. Due Process, Fraternity, and a Kantian Injunction

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pp. 172-181

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...

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6. Procedural Fairness and Substantive Rights

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pp. 182-205

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...

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7. Due Process and Procedural Justice

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pp. 206-228

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...

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8. On De-Moralizing Due Process

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pp. 229-254

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...

PART III

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9. Due Process in a Nonlegal Setting: An Ombudsman's Experience

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pp. 257-263

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...

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10. Some Procedural Aspects of Majority Rule

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pp. 264-295

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...

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11. Majority Rule Procedure

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pp. 296-332

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...

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12. Voting Theory, Union Elections, and the Constitution

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pp. 333-351

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...

INDEX

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pp. 353-362


E-ISBN-13: 9780814768884
E-ISBN-10: 0814768881
Print-ISBN-13: 9780814765692
Print-ISBN-10: 0814765696

Page Count: 362
Publication Year: 1977