The Dearth of Due Process

"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, 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.

Please send your comments and suggestions to:

"Is This What Consensus Looks Like?"

"Is This the Just Society We Want to Model?


[Why This Booklet?]
[Introduction to Consensus]
[The Particular Vulnera-
bility of Collectives
[Power Sharing]
[Red Flags to Guard Against]
[Ploys To Subvert Consensus]
[The Problem With Politeness]
[The Need For Kindness]
[Creating Pariahs]
[Respect for Differences]
[Personal vs. Group Issues]
[Micro-Managing Behaviors]
[Skepticism is Healthy]
[There's Hope]

[A Model for Justice?]
[The Dearth of Due Process]
[What About Free Speech?]

[Codifying the Collective Process]
[Relinquishing Control of Projects and People]
[Staying True to the Mission]
[What’s a Lone Person to Do?]







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