Procedural fairness generally

Sophie Boyron, Wendy Lacey

Research output: A Conference proceeding or a Chapter in BookChapter

1 Citation (Scopus)

Abstract

Legal rights and interests are protected in myriad ways and not always in a substantive sense or through entrenched constitutional provisions designed to prescribe or limit power. Procedural safeguards that regulate the exercise of power have historically played an important role in protecting rights to life, liberty and property. As Felix Frankfurter of the United States Supreme Court stated, '[t]he history of liberty has largely been the history of the observance of procedural safeguards'.' And, as Jackson J noted in Shaughnessy v United States.' 'Severe substantive laws can be endured if they are fairly and impartially applied '. Still, the treatment of procedural safeguards throughout history has also reflected profound differences between the common law and civil law worlds. While common law jurisdictions attached great importance to the guarantee of liberty through appropriate procedures, civil law jurisdictions gave priority to the detailed identification and declaration of rights as substantive limits on power. Less thought was given in civil law systems to ensuring these rights procedurally. Nowadays, constitutional orders widely recognise the necessity of procedures for preserving the rights and freedoms of citizens and for preventing the abuse of power by governmental institutions. This trend has also been influenced by the increasing recognition, since 1945, of procedural rights in international human rights law.
Original languageEnglish
Title of host publicationRoutledge Handbook Of Constitutional Law
EditorsMark Tushnet, Thomas Fleiner, Cheryl Saunders
Place of PublicationUnited States
PublisherRoutledge
Chapter20
Pages259-272
Number of pages14
Edition1
ISBN (Print)9780415782203
Publication statusPublished - 2013
Externally publishedYes

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