In this essay 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 the prudent design of social institutions. My account will provide a demarcation of the area within which due process claims are appropriate—an area much broader than “state action”— and provide at least a rough framework for determining when given procedures are adequate responses to these claims. I will also offer an account of substantive due process and undertake to explain why it is that when a legal right to due process is recognized, courts, in enforcing this right, will find themselves making substantive as well as merely procedural decisions.
The account I will offer sticks close to the truism that due process is concerned with protection against arbitrary decisions, and one can find a place in my account for many of the phrases that have been used in interpreting the Fifth and Fourteenth Amendments to the United States Constitution. But while I will have a certain amount to say in the abstract about the role of courts in providing and enforcing due process, my account is a philosophical and not a legal one. It is grounded in a conception of the moral requirements of legitimacy for social institutions and not on what the law of the United States or any other country actually is. I hope that what I have to say may be of some use in legal arguments about constitutional rights to due process of law, but I have not undertaken to defend my theory as an interpretation of the Constitution.
In revising this paper I have benefited from the responses of the commentators and discussants at
the meeting at which the first version of the paper was delivered and from comments by members
of the Society for Ethical and Legal Philosophy and members of Ronald Dworkin's seminar on the
philosophy of law, all of whom heard later versions. I am grateful to the members of these audiences
for their patience and help, and especially to Bruce Ackerman and Ronald Dworkin for many helpful
discussions on the subject of this essay.