What is Due Process of Law?

Mary McMahon
Mary McMahon

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.

Books containing codes of law.
Books containing codes of law.

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.

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a wiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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Discussion Comments


@Izzy78 - You are correct. The entire entity of due process involves quite a few matters which have already been mentioned and it is a very broad term that is used to describe nearly the entire judicial process.

Due process is merely the judicial process that is applied to whatever court system is present and allows the person to be ensured of having a fair trial. There are many variations of due process and it may revolve around written law, common law, or even custom, but whatever system is present it has checks, like appeals, to ensure that fairness is administered.

That being said, could anyone list different types of legal systems in the world and maybe give a short explanation of the due process? This will show how different legal systems can be, but still show that due process exists in nearly every type.


@jcraig - That is true, but there are instances in which the court cannot possibly render all bias out of the case.

In cases where feelings may run high and impact the jury or even the way the evidence is presented, that is when the defense or prosecution can request a change of venue, which is done in order to ensure that a fair trial is achieved when the location is an issue, which also falls under due process of law.

A lot of times the judge may deny the change of venue and that is something that can fall under the due process clause as they may be able to appeal to a higher court, claiming that a denial in the change of venue cost them the case.

This is only one example of what one person can appeal, but the appeal process itself falls under the due process clause and is merely a part of the judicial process.


@TreeMan - I agree. The court of public opinion can be very judgmental and can cause a lot of problems in the trial, if the feelings run high for the case being heard.

That being said this is the exact reason why there is such an emphasis on making sure the due process of law is followed tooth and nail to make sure that all fairness ensues and that outside entities and beliefs will not determine the outcome of the courts decision.

One example I can think of is in something heinous like a rape case. Even if it seems like an open and shut case, it may only seem that way to people that do not know all the facts of the case and that is why the court ensures that everyone will receive their day in court and that they will be ensured due process that allows them to have their case heard fairly with all bias possible eliminated.


The reason for having due process of law instead of having a system where the police force is the judge, jury, and executioners is because of the issue of the spirit of the law as well as the issue of the person accused being insured of having their case heard fairly.

It is very easy to point fingers at people and the due process of law protects the person accused of the crime as well as the prosecution in that all the facts will be made available and that all grey area is addressed.

Some people complain about cases that seem open and shut taking up much of taxpayer money and time in courts, but this has to be done in order to assure the courts that the people are being judged fairly and that all possible bias, whether intentional or not, is eliminated and only the facts and circumstances of the case are considered.

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