Abstract
In this chapter I argue that civil justice needs to escape the shadow of criminal justice. Although due process, both in criminal and non-criminal matters, shares a common theoretical core based on the concept of procedural fairness, they differ in important respects. Based on a model designed between purpose and parties’ relative position of power in the legal procedure, I argue in civil matters procedural fairness not only requires procedural rights in order to ensure accurate determination of fact as proxy for a quality outcome, but also to ensure a legal need has been satisfied, a dispute solved, a right has been protected. Procedural due process, in this regard, and as an inherent element of it, requires also access to the legal procedure and the capacity to maintain it until the end. In this sense, a procedure would also be unfair, no matter how accurate it might be or protective of procedural guarantees, if it is too costly or ineffective to be useful.
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Notes
- 1.
Langer (2007), p. 632.
- 2.
Professor Genn makes this claim for England, but it may be applied to many other places as well. Genn (2010), pp. 24–25. In the U.S. for example, between 1982 and 2007, the cost of the nation’s police protection, corrections, and judicial and legal services increased by 171%. The largest proportion of public expenditure in justice were police protection and correctional services, which increased for the same period in 125.6% and 255.3%, respectively. See: U.S. Department of Justice, Justice Expenditures and Employment, FY 1982-2007 - Statistical Tables, pp. 2, 5. Available at: https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2192. Based on the UN Crime Survey of Crime and Criminal Justice, Spencer in 1993 found that during the 1980’s at least there was increase in all areas of criminal justice of the 93 countries which make up the data. While he did not found a correlation between expenditure increase and the rate of total crime—or with any outcome in particular—, he infer that the aim of expenditure is to achieve short-term goals, and that these goals are politically driven to meet momentary concerns. Spencer (1993), pp. 1, 4, 10.
- 3.
This is somewhat the original understanding of Due Process, see e.g.: Eberle (1987).
- 4.
Bone (2003), p. 515.
- 5.
ICHR, Second progress report of the special rapporteurship on migrants workers and their families in the hemisphere, par. 95. Available at: https://www.cidh.oas.org/annualrep/2000eng/chap.6a.htm.
- 6.
Leubsdorf (1984), p. 602.
- 7.
Dworkin (1985), p. 80.
- 8.
Dworkin (1985), p. 75.
- 9.
Dworkin (1985), pp. 89–90.
- 10.
Dworkin (1985), p. 95.
- 11.
Dworkin (1985), pp. 80–88.
- 12.
Dworkin (1985), p. 86.
- 13.
Bayles (1986), p. 46.
- 14.
Bone (2010), pp. 1020–1022.
- 15.
Bone (2010), p. 1023.
- 16.
- 17.
Dworkin (1985), p. 74.
- 18.
Packer (1964), p. 9.
- 19.
Packer (1964), pp. 9–13.
- 20.
This is somewhat the original understanding of Due Process, see e.g.: Eberle (1987), pp. 339–362.
- 21.
Packer (1964), pp. 13–23.
- 22.
See, e.g.: Rhode (2004), pp. 122–144.
- 23.
Medina (2016), p. 260. According to Sarah Summers, at the core of the development of the modern criminal justice systems were the idea of stopping the injustices of the procedures of the Inquisition. And, based on the nineteenth-century liberal ethos of the Enlightenment, to begin to treat the accused not as a mere object subject to investigation first as a citizen, and later as a relevant part of the criminal proceedings. See: Summers (2007), pp. 22–23.
- 24.
Kadish (1957), pp. 346–347.
- 25.
See: Uzelac (2014), pp. 3–34.
- 26.
Genn (2010), p. 11.
- 27.
Uzelac (2014), pp. 6, 7.
- 28.
Bayles (1986), pp. 50–53.
- 29.
This is a formula developed by the European Courts of Human Rights, see: ECHR, Case of Steel Morris v. The United Kingdom, Judgment of 15 February 2005, par. 59.
- 30.
Leubsdorf (1984), p. 602.
- 31.
Uzelac (2014), pp. 7–12.
- 32.
Correa et al. (2000), pp. 391–392.
- 33.
USCS Fed Rules Civ Proc R 1.
- 34.
Marcus (2014), pp. 129–133.
- 35.
Galanter (1974), pp. 97–104.
- 36.
Cappelletti and Garth (1978), pp. 190–195.
- 37.
van Kempen (2010), pp. 3–6, 14.
- 38.
ECHR, Case of OAO Neftyanaya Kompaniya Yukos v. Russia, Judgment of 20 September 2011, par. 536–551.
- 39.
ECHR, Case of the Fortum Corporation v. Finland, Judgment of 15 July 2003, p. 373.
- 40.
Little v. Streater, 452 U.S. 1, 16 (1981).
- 41.
Santosky v. Kramer, 455 U.S. 745, 747–748, 755–757 (1982).
- 42.
- 43.
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Lillo Lobos, R. (2022). Why Civil and Criminal Procedures Require Different Theories on Procedural Due Process. In: Understanding Due Process in Non-Criminal Matters. Ius Gentium: Comparative Perspectives on Law and Justice, vol 97. Springer, Cham. https://doi.org/10.1007/978-3-030-95534-2_12
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