There has been a great deal of discussion of due process of law (in American terms) or procedural fairness (in Commonwealth ones) of late. My last post was part of that conversation, and I am grateful to the readers who have said nice things about it (e.g. here). I thought I would take one more beat on this topic, though, in response to something Jonah Goldberg said on a recent episode of his podcast The Remnant.
To be very clear: Mr. Goldberg was very much not pooh-poohing legal procedures, as the Trump administration and its supporters have been doing, either overtly or by misdirection. On the contrary, he underscores the importance of procedural safeguards in preventing the abuses of government power, including abuses that can and will occur in the name, and perhaps in the service, of policy aims one might agree with. That is the essential thing, at least so far as the political conversation is concerned, and Mr. Goldberg is a political journalist, not a legal theorist. But I am a legal theorist, and so it did bug me that Mr. Goldberg is wrong ― I think ― about the reasons why procedures are so important. He was wrong, moreover, in an interesting and illuminating way.
He argued (I am reconstructing this from memory, since there is no transcript), that it is a mistake to talk about law-breakers deserving due process. They don’t. Innocent people do. The trouble ― and the essential difference between Mr. Goldberg’s position and that which the Trump administration and its enablers want us to swallow ― is that we don’t know who is who until we have gone through a sufficiently robust procedure for finding out and making sure that the findings hold up. So everyone must get due process, even though not everyone deserves it.
I understand the initial appeal of this view. But the way Mr. Goldberg argued for it actually shows why it does not hold up. Suppose, he said, that there were a supernatural device ― anything from some sort of technological solution to direct divine intervention ― that allowed us to know, ahead of time and with infallible accuracy, that someone was going to commit a crime. Then we wouldn’t need any further process to, at a minimum, intervene and stop the crime. The legitimacy of punishing someone stopped in this way without having actually done anything wrong just yet would of course be a separate matter ― but the objections to it would have to do, in legal terms, with the absence of an actus reus, not that of due process.
Or (this is my addition, not part of Mr. Goldberg’s argument), to make things a bit simpler, suppose a man were to be put on trial, and an omniscient and totally truthful witness were available to testify ― as in Karel Čapek’s “The Last Judgment“. We wouldn’t need to bother with legal representation, disclosure of evidence, cross-examinations, and all that, as indeed Čapek observes. It would make no sense to complain that the accused didn’t get a fair procedure: what could be fairer than being judged based on all the relevant facts truthfully and dispassionately presented?
I think this is all true so far as it goes, but what makes these examples compelling at first glance is precisely what on further reflection makes them inapposite. They work because, and only so long as, the mechanism for dispensing with due process is a supernatural one, and this is true even if we imagine that it is somehow technologically based: as Arthur C. Clarke pointed out, sufficiently advanced technology is indistinguishable from magic.
Because it is a deus ex machina, let alone Deus simpliciter, that acts in these situations, we do not relate to them as if it were an institution staffed by our fellow human beings. Similarly, people who believe in God accept His commands on all manner of things (from ethics, to diet, to sex) on which they would never be ordered about, perhaps not even counselled, by other people, including parents, teachers, or even doctors and other experts. And I don’t say this out of some desire to dunk on them. It’s just how human beings are. For that matter, people who are not religious may well invest some ostensibly secular entity, from “science”, to some medical quack, to a large language model, with a status that will make them treat the way others treat God. Some of my students are quite ready to regurgitate things an AI tells them even though a minute’s reading would prove them false, but they will never believe me when I warn them that AIs make shit up and cannot be trusted.
Rants aside, I think that this isn’t just because peoplet think that God, “science”, or whatever are so much more accurate than those others whose guidance or direction they will not so readily accept. If God is right 100% of the time and a doctor, speaking within his or her area of expertise, is right 95% of the time, the difference might seem like one of degree. But people treat it as one of kind. They will seek a second medical opinion, but not a theological one. I think that is because they are not just comparing inerrancy with quasi-inerrancy: they are also, and perhaps mainly, comparing hierarchy and equality. God is superior to the human who believes in Him, and while inerrancy is part of that superiority, it is only a part. A fellow human being, even if he or she knows a great deal, is fundamentally equal to another human being, including one who trusts him or her. Taking directon from a superior is natural; but having to take direction from an equal, not so much ― indeed, it can be demeaning.
Hence, the reason we need due process in human institutions is not just that they are liable to err, though they are and that is both an important reason for having procedural safeguards in the first place and an important consideration in how to design the most appropriate set of such safeguards. But the other reason for having due process is that there is a fundamental sense in which the people running these institutons and the people subject to their authority are equals, and respecting this equality imposes constraints on how authority can be exercised even apart from the substantive rightness of what the institution decides.
What these constraints look like depends on the nature of the institution and the authority it exercises. For legislatures or other institutions that make general rules directed at indeterminate numbers of unknown future persons, they are primarily formal. These are the Rule of Law principles, mainly having to do with the generality, accessibility, and consistency of laws, that Lon Fuller describes in The Morality of Law, which he explains are necessary to maintain what he calls reciprocity between the rulers and the ruled. For institutions exercising power over specific persons and in respect of actions or omissions that have already occurred, these formal constraints are inapposite, and it is the requirements of procedure that come to the fore ― notably, allowing the person to know the case against them and to make arguments about the evidence and the law to rebut it. (Legislatures should follow certain procedural principles too, but this is much more a matter of prudence and good government than of respecting those subject to their laws; the occasional statute rushed through a legislature without following these procedures may be unfortunate, but isn’t intolerable in the way skipping a trial in the odd murder case would be.)
If all this is true, then there is a very real sense in which law-breakers, no less than the innocent and law-abiding, deserve due process, and not merely required to be granted it as a regrettable if inevitable by-product of human fallibility. They deserve it by virtue of their humanity and their fundamental equality, in spite of everything, with the people judging them.