"Due Process of law implies the right of the person affected thereby to
be
present before the tribunal which pronounces judgement upon the
question of
life, liberty, or property, in its most comprehensive sense; to be
heard, by
testimony or otherwise, and to have the right of controverting, by
proof,
every material fact which bears on the question of right in the matter
involved. If any question of fact or liability be conclusively presumed
against him, this is not due process of law." Black's Law Dictionary,
6th
Edition, page 500.
While discussing collective process, we have, so far, delved into a
number
of aspects of process that we feel are pertinent to fair
decision-making
within egalitarian groups. However, these different aspects might have
varying degrees of importance with regard to broader concepts of how a
fair and democratic society should function. And in that broader sense, few aspects are nearly as essential as due process.
Among actual definitions of due process, we find that the item above,
from
Black's Law Dictionary, will suffice as well as any. The basic concept
of
due process is that no one should be assumed to have committed any
violation
of legal or ethical codes without having a fair hearing in front of
people
who can judge him or her impartially according to reasonable objective
standards and without prejudice. Essential to the fairness of such a
hearing is the idea that anyone accused has the right to face his
accusers
and defend himself (or have someone of adequate expertise defend him,
if the
complexity of the laws or process so require). Stated most simply,
everyone
is innocent until proven guilty by just and fair means.
This idea is very well established in mainstream culture and society. In
fact, it has been established in all concepts of modern democracy ever
since
modern democracy developed, during the Middle Ages. (Most wisdom
traces the
origins of modern due process back to English common law and the Magna
Carta or restatements thereof - which would mean, depending on how you
look
at it, the year 1215 or, at latest, say, 1355 (see, for example, "Due
Process of Law," by Barnabas D. Johnson,
http://www.jurianda.am/dueprocess.htm).) This is why a basic text such
as
Black's Law Dictionary (a very mainstream text found in any stuffy law firm) contains such a good,
concise and
fair definition of the term. It is also why you will find significant
references to due process in two Amendments to the U.S.Constitution (Fifth and Fourteenth). While we might worry
that
the legal systems and agents of the State often do things to undermine
due
process, and while we might say that the police and courts sometimes
blatantly violate it, the concept itself is considered quite legitimate
in
all corners of legal argument; it is not, by any means, a radical or
utopian
idea.
Unfortunately, once we look at the conduct of many egalitarian
collectives,
due process does begin to look like a radical idea. This is an irony
that
truly puzzles us. Egalitarian collectives are supposed to build upon
the
basic concepts of democracy and strive to make things more democratic.
The
people within these collectives are supposed to view the basic
standards of
fairness within conventional society as being relatively minimal
compared to
those of the society that we all want to build. And yet, we are sorry
to
say, as we examine the process (or lack thereof) among many of our
"radical-democratic" comrades, such standards often seem to comprise a
maximal, nearly unattainable goal.
In a number of cases, we have witnessed the following sort of process
take
place after someone has been accused:
The accused may be told about problems that people are having with
something
he or she did, but specifics are rarely mentioned, and a fair hearing
is
never suggested. Bad word and rumor are accumulated against the
accused,
often in forums that s/he cannot access, such as hidden meetings or
special
e-mail lists. A closed-door meeting takes place in which it is decided
that
the accused has caused certain problems or committed certain violations
or
crimes. Evidence is said to have been produced, but the accused never
knows
what that evidence, exactly, was. A judgment is made in the accused's
absence, and the poor accused individual becomes the last person to
know
about the conviction and the sentence (which usually involves some
deprivation of liberty - such as ending or limiting that person's
participation in a community, forum, or group). In sum, there is no
fair
hearing, no right of self-defense by the accused against the accusers,
and
no adequate revelation of charges or reasons provided for consequent
penalties. Some sort of trial takes place in which everything is
wrong.
We would find it somewhat outrageous if this happened within a single
collective, but we have found that this truly awful kind of
process occurs in more than a few. This mockery of justice is so common, it has actually happened to a few
of
our friends; in fact, it has even happened to some of us.
There may be a number of reasons why we are experiencing this dearth of
due
process. The most common may be that people who call themselves
"anarchists" or "anti-authoritarians" are used to rebelling against
rules,
and many will use their opposition to authority as an excuse to reject
any
and all rules at their convenience. Unfortunately, this eagerness to break the rules in defiance of
authority
often leads people straight into the hands of the real authoritarians,
who
will be all too happy to manipulate others into breaking the rules in order to pursue a specific personal agenda.
Contrary to the sloppy thinking that we've occasionally encountered,
there
is no situation in which someone has been accused of something serious
(i.e., something that might warrant limitation of freedoms or exclusion
entirely) which can be addressed fairly while ignoring due process.
Moreover, due process is not, contrary to what some might think, merely
a
way that a society deals with the commission of crimes. One of the
main
reasons for due process is that we often don't even know, until there
has
been a fair and impartial proceeding, whether a crime or transgression
has
been committed. Even more often, even when we can be certain that
someone
has done something that upset people, we simply cannot be certain of
the
nature, degree, or seriousness of such an act - at least not until the
act
can be investigated in a fair and impartial way.
Without due process, not only do we risk the unfair treatment of known
criminals and a poorly planned way of dealing with crime; we also run
the
risk that crimes might be completely invented and people might be
turned
into criminals for reasons that have nothing to do with
anything
that actually happened. Without due process, anybody runs the risk of
being
criminalized by individuals or cliques who hold power, who feel in any
way
challenged or threatened by the accused. Without due process, even
people
who do not have any power or influence might easily vilify someone who
is
innocent if they can figure out how to influence or manipulate a
powerful
individual or clique. Due process, followed correctly, is the specific
mechanism through which innocent dissenters and iconoclasts can often
make
sure that they are not instantly, unjustly turned into villains or pariahs.
Sometimes, people think that due process can be altered or circumvented
when
the person or people making the accusations belong to a traditionally
oppressed group. This is a problematical concept that is actually
supported
by many people on the left. For instance, an accusation of racism
stemming
from an argument might be acted upon without adequate investigation of
the
contents of the disagreement or the evident intentions of the accused.
Intentions are sometimes simply assumed, without anyone asking for
proof.
The same problem might occur when the issue revolves around a woman
accusing
a man of sexism. Often, out of some eagerness to pursue an
"anti-oppressive" policy, an egalitarian collective will approach an
accusation with particularly strong prejudice against the accused. At
best,
the burden of proof then falls upon the accused (i.e., s/he is guilty
until
proven innocent); at worst, there is no proof even requested, as the
accusation itself is considered sufficient.
With regard to such matters, we'd like to call readers' attention to
the
last sentence of the excellent definition of due process above: "If
any
question of fact or liability be conclusively presumed against him,
this is
not due process of law." In the world of left-leaning or egalitarian
groups
and collectives, where people might have particularly strong desires to
right certain wrongs found within our society, that is a thought well
worth
keeping in mind. Prejudice in judgment is unacceptable regardless of
the
gender, race, or ethnic identity of the accuser or the accused.
Prejudicial presumption in general is an even more common problem than the blatant
violation of due process that we described earlier. As we discussed in
"Creating Pariahs," there are numerous ways that accusers and their
allies
can spread ill opinion long before a supposedly fair and just trial
takes
place. It is a frequent tactic of vilifiers to spread the bad word in
forums to which the accused does not have access. (E-mail lists can be
particularly good for that. The accused might not have access to
e-mail, or
simply might not have access to a particular list.) As we have said
before,
when this sort of tactic is taken to the extreme in advance of any
trial,
then the trial might as well not happen.
In standard legal practice here in the U.S., the accused theoretically
has
recourse to change the place of trial when the immediate surroundings
have
already been inundated with news or publicity creating prejudice.
True,
this happens most often when the accused is wealthy or famous or is
being
accused of a particularly infamous crime. However, this is a right
that
seems to be universally recognized, at least in principle.
Unfortunately,
within many egalitarian collectives, such a right seems not to be known
at
all. Thus, in circles within which someone has been totally vilified,
and
people have discussed and built upon rumors to which the accused might
not
even have had access, the local "fair trial" is pursued anyway, as
though it
still could be fair.
In our opinion, this kind of situation is unacceptable.
When
local rumors and accusations spread like wildfire, it is important to
move
the trial beyond the places where the fire has spread. That is why,
contrary to the practice of some unions, organizations and networks,
the
local group from which a case originated is often the last place where
that
case should be tried. If there is another place within the larger
organization where a controversial or much-talked-about case might be
moved,
then it should be moved as soon as possible. If there is no group
outside
of the small local group involved, then maybe outside judges or
mediators
should be seriously considered right away.
There are probably many more specific examples of the violation of due
process that takes place within collectives, surely enough to fill a
few
books. Nonetheless, it would be advantageous for existing collectives
to
address the most obvious and immediate problems, at least as a start.
Egalitarian collectives owe it to themselves and others to pursue
important
principles such as due process in more advanced ways than conventional
society, rather than acting as though they are ignorant of the
conventions
of justice that most people already recognize.
Admittedly, in the present day, due process isn't in such great shape in
mainstream society either. In the age of the Patriot Act, secret
military
tribunals, and the "War on Terrorism," we see the conventional rights
that
everyone knows about repeatedly trampled upon or ignored. Many
egalitarian
groups, among other factions (both left and right), are fighting the
good
fight to protect people's civil liberties. However, groups will
probably
lose credibility if they don't protect the civil liberties of their own
members as well. (This is why many groups on the left have found
themselves
discredited by groups on the right who have seized upon and publicized
the
most obvious infringements on personal expression resulting from left
political correctness. It is true that the stereotype is an
exaggeration,
but it is not completely false; it is not simply an invention of
right-wing
propaganda, as some "progressives" might proclaim.)
It is also important for people within egalitarian collectives simply
to
know what they're fighting for. By addressing the dearth of due
process in
their own circles and communities, these activists will probably learn
a few
more things, becoming more skilled and articulate in advocating for the
new
world that they would like to create. If they lose track of the basic
principles of due process at the same time that due process is being
stifled
in the mainstream community, then the outcome might not be so good.
The
dearth of due process within our collectives might simply contribute to
the
death of due process everywhere.