Chapter 4 examines the historical and theoretical foundations of due process. It draws on the keystone Anglo-American jurisprudence of natural justice, procedural fairness, and due process. Due process is not to provide access to a court, but access to ‘dialogue’. Procedural standards create a dialogue between decision-makers and the community to whom the decisions relate to enhance the legitimacy of the decision-making process.This chapter identifies three value-based models of due process: (1) the instrumentalist model: the aim of procedures is to enhance the accuracy of decision-making outcomes; (2) the dignitarian model: the inherent value of procedures is in preserving the dignity and autonomy of the individual; and (3) the public interest model: due process is a mechanism to enhance public accountability in decision-making. Each model is based on different underlying theories about law and legal system and demonstrates a connection between due process and more deep-seated conceptions of community, law, and values.
Keywords: due process theory; deliberative democracy; dialogue; legitimacy; dignitarian; public interest; pluralist; autonomy; positivism
Chapter. 11911 words.
Subjects: Public International Law ; Constitutional and Administrative Law
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