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Due Process

"by the law of the land"

The concept of regarding the due process of law, represents the cornerstone of the judicial process. It guarantees that fairness and justice are imparted through the whole process. Due process of law guarantees that the fundamental rights of the individuals are protected.Due process of law represents the foundation for democracy and the respect for the higher law of the land.

There is the procedural Due Process and the substantive Due Process

The procedural due process is concerned with the fairness of the judicial procedure. Everyone is equal before the law. Its basic philosophy is that no one even the ruler is above the law. Everyone must abide by the fairness of a judicial procedure. The citizen is secure against arbitrary seizure of property and /or arbitrary detention. The substantive due process is related with the basis substance of the law protects all individuals. There is an equal protection for everyone

For more information in these two aspects of due process go to Lectric Law Library's stacks'

Origins of the concept

Jurow,K (1975) asserts that in 1225 in the Magna Carta is the first time that the phrase appears "by the law of the land" Historically has been equated wit the "due process of law". It seem that this concept has sparked debated among historians. Cronin in 1938 ventured to say that due process only meant a fair trial for the accused persons. Robert Reeder asserts that :due process means simply the process which the person involved is entitled to receive. The rule process has historical roots in the English law.Edward the Third declared in 1354 " that no man of what State or condition that he shall be put out of land off Tenement, not taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law". On 1352 the status form the parliament sought to prohibit the King's council from summoning parties to appear before them other than the usual procedures contemplated in the common law. Only the accused can be brought to counsel to answer criminal charges by a written statement from the Chancery. It seems the process referred to written statement. On 1368 Due process could signified to the method of summoning a person to appear before the council to answer the accusation made against him. However, the due process of law did not play a great role as the concept by the law of the land. The concept brought great crisis toward liberty cases.(Keith Jurow. Untimely Thoughts: A reconsideration of the origins of the Due Process of law. The American Journal of Legal History Vol XIX (4) 1.(1975).


Canadian Context

Ref. Peter Hogg." Constitutional law of Canada" Fourth student edition. 1996. Craswell. Thompson Canada Limited.

The Canadian Charter of Rights contains no reference to " due process of law" it substitutes for the Phrase " fundamental justice". The court interpreted "fundamental Justice as the substantive concept" . Main Problem: vague concept.

The Canadian Charter of Rights and Freedoms

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Last Updated: 29-Mar-2004