ARTICLE
Four models of due process
Victor V. Ramraj*
1. Introduction
Human rights watchdogs inform us that extrajudicial executions continue to
be used by many states to exercise control over their citizens.1 Agents of the
state are sent to apprehend political enemies, who are dealt with brutally and
sometimes tortured before being executed. No trial is held, no court passes
judgment, and no law authorizes the execution. In these cases, the rule of law
has run amok. Extrajudicial killings do not conform even to the narrowest,
formal definition of rule of law, which insists only that state action find some
authorization in law duly enacted.2 What is absent in these cases (from a legal
perspective), and what excludes them from any claim to membership in a
constitutional order, is even the barest requirement of due process. A constitutional due process guarantee defines and limits the state’s ability to deprive
a person of life or liberty and ensures that any state-ordered execution or
detention is duly authorized by law.
The constitutions of most modern states include some form of due process
guarantee. What is surprising, however, is the extent to which the highest
courts of these states differ in their understanding of the minimum requirements
of due process. A survey of the constitutional jurisprudence of Singapore,
* Faculty of Law, National University of Singapore. I acknowledge with gratitude a grant from the National
University of Singapore, which made the research for this article possible. I am also indebted to the
participants in my staff seminars at the National University of Singapore in May 2001 and April 2002 and
at the University of Calgary in December 2001 for their insightful and provocative comments on various
aspects of this paper, and to the students in my Comparative Constitutional Law seminar at the National
University of Singapore during the 2001–2002 academic year for many stimulating exchanges regarding
due process and comparative constitutional law theory. In particular, I am grateful to Molly Lien, Sandra
Meadow, Ng Pei Suin, and Kent Roach for their comments on an earlier draft of this article. Any errors,
however, are entirely my own.
1
For instance, according to Amnesty International’s Annual Report Summaries 2001, confirmed
or possible extra-judicial executions were carried out in sixty-one countries in 2000. See Amnesty
International, Annual Report 2001, available at http://web.amnesty.org/web/ar2001.nsf/
regSUM/regSUM?OpenDocument.
2
Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, 1997
PUB. L. 467, 467 (explaining that “[f]ormal conceptions of the rule of law do not however seek to
pass judgment upon the actual content of the law itself. They are not concerned with whether the
law was in that sense a good law or a bad law, provided that the formal precepts of the rule of law
were themselves met”).
© Oxford University Press and New York University School of Law 2004,
I.CON, Volume 2, Number 3, 2004, pp. 492–524
492
Four models of due process
493
India, the United States, South Africa, and Canada reveals four distinct
approaches to due process and, thus, to the ability of the state to deprive a
person of life or liberty. The first, or formal, model insists only that the deprivation
be authorized by law. The sole issue on judicial review would be whether the
law authorizing the deprivation of life or liberty has been duly enacted by the
appropriate legislative or executive body. The second, or procedural, model
imposes limits on the deprivation of life or liberty based only on principles of
procedural fairness. It would require, for instance, a fair trial by an independent and impartial decision maker through the articulation of norms for
procedural fairness, but would not inquire into the substantive reasons
for depriving the person or life or liberty. A third, or procedural-privacy,
model imposes limits that are not only procedural, but also substantive in the
limited sense that they impose constraints on the ability of the state to interfere with individual privacy or autonomy. Even before compliance with
procedural norms comes into question, there are substantive “due process”
limits on the sort of conduct that can properly be criminalized. Finally, a full
procedural-substantive model—or, for short, a substantive model—imposes limits that are both procedural and substantive, not only in the sense that they
impose constraints on what conduct may be criminalized (abortion, for example) but also in the sense that they impose constraints on the principles of
mens rea or criminal fault; in jurisdictions following this model, the state can
subject to punishment only those persons who are morally to blame for their
conduct.
The central claim of this article is that only the substantive model is
normatively defensible. The procedural and procedural-privacy models both
rely on unprincipled line-drawing. The procedural model struggles to maintain
a false distinction between procedural and substantive fairness; the procedural-privacy model, to the extent that it is substantive, attempts to draw a line
between questions of criminalization and of fault. Neither model does so in a
principled, non-arbitrary way. Only the formal and substantive models stand
out as both principled and coherent. But the choice between these two models
depends on more fundamental questions about the nature of constitutionalism and the rule of law, the role of the judiciary, and the extent to which
particular cultural norms, such as “Asian values,” should have a bearing on
constitutional interpretation.
This article begins by describing the four models of due process using
illustrations from constitutional law jurisprudence. The second part of the
article examines the tensions within the procedural and procedural-privacy
models and argues that neither model provides a principled justification for
delimiting due process. After explaining why the formal and full substantive
models are the only principled, coherent choices, the third part of the article
considers the arguments in support of a formal approach and the specific
normative choices that this approach entails. Finally, an affirmative argument
is advanced in support of the substantive model, based on the need for coherence,
consistency, and predictability in the criminal law.
494
V. V. Ramraj
2. Four models
The object of this part is to describe four interpretive models that are used by
the courts of Singapore, India, South Africa, the United States, and Canada
when interpreting constitutional due process provisions. At this juncture, two
preliminary methodological questions arise: What are the provisions that are
being compared, and what makes them comparable?3 Since it is “possible to
compare anything with anything else,”4 it is important to understand at the outset what is being compared and why.
The starting point for this exercise in comparative constitutional law is
the following question: What general limitations does a particular constitution
impose on the ability of the state to deprive a person of life or liberty? The five
jurisdictions in question provide:5
Singapore: “No person shall be deprived of his life or personal liberty save
in accordance with law.”6
India: “No person shall be deprived of his life or personal liberty except
according to procedure established by law.”7
United States: “No person . . . shall be deprived of life, liberty, or property,
without due process of law . . .” (due process clause in the Fifth Amendment
that applies to the federal government) and “No State shall . . . deprive any
person of life, liberty, or property, without due process of law . . .” (due
process clause in the Fourteenth Amendment that applies to the states).8
South Africa: “Everyone has the right to freedom and security of the
person, which includes the right . . . (a) not to be deprived of freedom
arbitrarily or without just cause.”9
3
There is, of course, a third methodological question: Why choose these specific jurisdictions? Not surprisingly, part of the answer lies in the background of the author: I am a common law-trained lawyer
who practiced in Canada before moving to Singapore where I now teach in the Faculty of Law at the
National University of Singapore. However, inevitable personal factors aside, there were good legal
reasons for examining these jurisdictions: the United States is perhaps the most prolific jurisdiction
when it comes to due process and constitutional law; the wording of the “due process” provision of
the Indian Constitution is similar to the corresponding provision in the Singapore Constitution; South
Africa has a new and dynamic constitution and, because of its recent history, is a jurisdiction that is
very much attuned to rights issues which (as we shall see) are interpreted in a boldly comparative way.
4
FRANÇOIS VENTER, CONSTITUTIONAL COMPARISON: JAPAN, GERMANY, CANADA,
CONSTITUTIONAL STATES 44 (Juta 2000).
AND
SOUTH AFRICA
AS
5
In respect of each jurisdiction, the limitation on the ability of the state to deprive the person of
life or liberty is set out in italics.
6
SING. CONST. art. 9(1).
7
INDIA CONST. art. 21.
8
U.S. CONST. amends. V, XIV, § 1.
9
S. AFR. CONST. (1996) § 12(1)(a). Note that the right to life is protected separately, in section 11,
and is not qualified: “Everyone has the right to life.” Id. § 11. On the basis of section 11, the death
Four models of due process
495
Canada: “Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.”10
The common thread in these provisions is that they impose general constraints on
the ability of the state to deprive a person of life or liberty. In terms of their function,11 they serve this same basic purpose, and in terms of their underlying normative premise, they seem to embody the same basic notion of limited
government.
There are, of course, additional clauses in each of these constitutions that
confer specific rights in relation to the criminal process.12 But the provisions in
question state a broader limiting principle, the parameters of which are the
subject of this paper. There are also important questions as to whether
the precise text of these provisions makes a difference as to their meaning.
However, for the nonce, I remain agnostic on this point, and I use “due
process” to refer broadly to those provisions that impose general limitations on
the ability of the state to deprive a person of life or liberty, whether or not they
use those precise words.
Now that we have seen what it is that we are comparing we might usefully
ask why we should bother to compare them. The answer to this question is
twofold. First, by comparative analysis, we may better understand the interpretive choices that are open to the courts in each of these jurisdictions. This
part of the paper suggests that there are at least four interpretive options
available to the courts before legal and normative considerations are taken
into account. Second, the comparative process allows us to investigate more
effectively the reasons for, and implications of, adopting one approach over
another. This is the task of the second, third, and fourth parts of the paper.
One last preliminary point before we turn to the models: the four models
do not correspond exactly to the particular jurisdictions we are considering.
penalty was struck down by the South African Constitutional Court in State v. Makwanyane, 1995
(3) SALR 391 (CC).
10
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as
Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, § 7 [hereinafter Charter].
11
According to KONRAD ZWEIGERT & HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 36 (Tony Weir
trans., 3d ed., Clarendon Press 1998), the “function is the starting point and basis of all
comparative law. . . . [D]ifferent legal systems can be compared only if they solve the same factual
problem.”
12
One example is the right to counsel, as provided for in Singapore by article 9(3) (the right “to
consult counsel and be defended by a legal practitioner, of his choice”); in Canada by section 10(b)
of the Charter (the right “to retain and instruct counsel without delay and to be informed of that
right”); in South Africa by sections 35(2)(b) and (3)(f) (the right, if detained or tried respectively,
“to choose, and consult with, a legal practitioner and to be informed of this right promptly”); in
the United States by the Sixth Amendment (the right of the accused in all criminal cases “to have
the Assistance of Counsel for his defense”).
496
V. V. Ramraj
In some of the jurisdictions, the controversy is centered precisely on the
question of which model is the best one to adopt. But it is fair to say that the
formal model finds favor in some recent Singapore cases; the procedural model
represents, with some notable exceptions, the Indian approach; the procedural-privacy model captures the American approach; and the full substantive
model has been adopted, in theory if not in practice, by the Canadian and
South African courts.
2.1. The formal model
According to the formal model of due process, there are no constitutional
limits on the ability of the state to deprive a person of life or liberty, provided
that the deprivation is authorized by a duly enacted law. The fairness of the
process by which the deprivation takes place is not a matter of constitutional
concern. Constitutional due process is meant only to ensure that there is some
law that authorizes the deprivation. It is strictly a question of legality.
This formal approach is evident in the Singapore case, Jabar v. Public
Prosecutor,13 in which counsel argued that the delay in carrying out the death
sentence violated article 9(1) of the Constitution, which provides that “[no]
person shall be deprived of his life or personal liberty save in accordance with
law.”14 The Court of Appeal, in a departure from prior cases15 interpreting this
provision as incorporating fundamental rules of natural justice, held, to the
contrary, that any “law which provides for the deprivation of a person’s life
or personal liberty, is valid and binding so long as it is validly passed by
Parliament” and that the court was “not concerned with whether it is also fair,
just and reasonable as well.”16
13
[1995] 1 S.L.R. 617 (C.A.).
14
SING. CONST. art. 9, § 1.
15
Ong Ah Chuan v. Public Prosecutor, [1981] 1 M.L.J. 64 (PC); Haw Tua Tau v. Public Prosecutor,
[1981] 2 M.L.J. 49 (PC).
16
Jabar, [1995] 1 S.L.R. at 631. A similarly formalistic approach to due process is taken by the
Malaysian Court of Appeal in an environmental law case, Ketua Pengarah Jabatan Alam Sekitar v.
Kajing Tubek, [1997] 3 M.L.J. 23. On the substantive question of whether the authorities were
entitled to proceed with the construction of a dam, which had been approved under state law but
not under Malaysian federal environmental legislation, the Court of Appeal held that federal
legislation did not apply. However, the Court of Appeal went on to address the question of whether
the respondents, natives of Sarawak, who would be deprived of their livelihood by the construction of the dam, had locus standi to bring the action. One of the reasons given by the court for
denying standing was that the deprivation of their livelihood was not contrary to article 5(1) of
the Malaysian Constitution. This provision, which is identical in wording to article 9(1) of the
Singapore Constitution, provides that no person “shall be deprived of his life or personal
liberty save in accordance with law.” (The word “life” in article 5(1) is understood to include a
person’s livelihood or way of life.) The Court of Appeal held that there was no constitutional
violation here since, “in this instance, life is being deprived in accordance with an existing and
valid law.” Id. at 43.
Four models of due process
497
This approach to constitutional interpretation might be characterized more
abstractly as a formal, as opposed to a substantive conception of the rule of
law.17 According to Paul Craig, a formal conception of the rule of law addresses
the manner in which the law was promulgated (was it by a properly
authorized person, in a properly authorized manner, etc.); the clarity of
the ensuing norm (was it sufficiently clear to guide an individual’s
conduct so as to enable a person to plan his or her life, etc.); and the
temporal dimension of the enacted norm (was it prospective or
retrospective, etc.). Formal conceptions of the rule of law do not however
seek to pass judgment upon the actual content of the law itself. They are
not concerned with whether the law was in that sense a good law or a
bad law, provided that the formal precepts of the rule of law were
themselves met.18
The role of the court in this formal approach is limited to ascertaining whether
the law that authorized the deprivation was “validly passed by Parliament.” This
approach to due process does offer some protection to citizens against the
arbitrary exercise of coercive power by the state. It ensures that any attempt by
the state or its agents to deprive a person of life or liberty is publicly, clearly, and
prospectively authorized. It would, for example, prohibit acts carried out by secret
police acting under informal, private orders of those in power. It ensures that, at
the very least, there is rule by law. But this approach is limited in that once the
formal validity of the impugned law is established, there is nothing further the
court can do, however unfair, unjust, or unreasonable the law might be.19
2.2. The procedural model
The procedural due process model goes a step further. It requires that any
deprivation of life or liberty conform to procedural-fairness norms. This model
demands that the court go beyond a mere assessment of formal validity and
inquire into the procedural fairness of the criminal process. It is the model
perhaps most readily associated with the due process clauses in the Fifth and
Fourteenth Amendments to the U.S. Constitution,20 which have been held to
include the right to a fair trial, the right to counsel, the right to a public trial,
the right against self-incrimination, and the right to confront and crossexamine witnesses.21 But well beyond its origins in the U.S. Constitution, this
17
Craig, supra note 2.
18
Id. at 467.
19
In federal states, a constitutional division of powers as between federal and provincial or state
legislatures, can be seen as a general example of a formal limitation on state power. I am grateful
to François Tanguay-Renaud for this point.
20
21
See supra text accompanying note 8.
CRAIG R. DUCAT & HAROLD W. CHASE, CONSTITUTIONAL INTERPRETATION: CASES, ESSAYS, MATERIALS
626–27 (West Publishing Co. 1992).
498
V. V. Ramraj
procedural model of due process can be seen in a line of cases rejected by the
Singapore court in Jabar and a recent line of cases interpreting article 21 of the
Indian Constitution.
In the decade before Jabar, during which time the Privy Council remained
the court of last resort for Singapore, the interpretation of article 9(1) was
markedly different. In the 1981 Ong Ah Chuan decision,22 the issue before the
Privy Council was whether a statutory presumption of trafficking, which
arose on proof of possession of more than a specified amount of a controlled
drug (more than two grams of heroin), was contrary to article 9(1) of the
Singapore Constitution. It was argued by the Public Prosecutor that the
requirement that no person be deprived of his life or personal liberty “save in
accordance with law” would be satisfied if the deprivation were carried out in
accordance with “any Act passed by the Parliament of Singapore, however
arbitrary or contrary to fundamental rules of natural justice the provisions of
such Act may be.”23 Lord Diplock, rejecting the formal model of due process,
held that the reference to “law” in article 9(1) refers “to a system of law which
incorporates those fundamental rules of natural justice that had formed part
and parcel of the common law of England that was in operation in Singapore
at the commencement of the Constitution.”24 These fundamental rules of
natural justice, he explained, include the principle that a person not be
punished for an offense “unless it has been established to the satisfaction of an
independent and unbiased tribunal that he committed it.”25 Ultimately, the
Council concluded that the statutory presumption in this case was not
contrary to the fundamental rules of natural justice; nonetheless, the norms
of procedural fairness established in the case continued to inform the interpretation of article 9(1) at least until 1990 when the Council decided Jabar.26
A similar approach can be seen in the Indian jurisprudence interpreting
article 21 of the Indian Constitution. Article 21 provides that no person shall
be deprived of his life or personal liberty “except according to procedure established by law.”27 The leading case is Maneka Gandhi v. Union of India.28 At issue
was the Passports Act, which empowered the government to impound passports for a number of reasons, including when the government deemed it
22
See Ong Ah Chuan, [1981] 1 M.L.J. 64 (P.C.).
23
Id. at 70.
24
Id. at 71.
25
Id.
26
Prior to Jabar, Ong Ah Chuan was followed in Haw Tua Tau, [1981] 2 M.L.J. 49 (an adverse inference drawn from the silence of the accused does not violate the fundamental rules of natural justice) and in Public Prosecutor v. Mazlan bin Maidun, [1993] 1 S.L.R. 512 (CA) (the right to silence is
not subsumed under the fundamental rules of natural justice).
27
INDIA CONST. art. 21.
28
A.I.R. 1978 S.C. 597.
Four models of due process
499
necessary to do so “in the interests of the general public.”29 The act did not
require that the authorities divulge the reason for the impoundment, nor did it
provide the person whose passport was impounded with an opportunity to be
heard. The petitioner brought a constitutional challenge on several grounds,
including the claim that the provisions of the act violated article 21 in that
they did not provide a procedure at all and that, alternatively, if they did, the
procedure was arbitrary and unreasonable. The Supreme Court of India read
article 21 together with article 14 (equality) and article 19 (fundamental
liberties) as embodying a broad, interrelated constellation of rights and held
that the procedure must be fair and reasonable, not “arbitrary, fantastic or
oppressive.”30 After Maneka Gandhi, the Indian court began to assume a more
activist stance in article 21 cases,31 using it to secure, among others, a right to
a speedy trial,32 and rights against handcuffing,33 delayed execution,34
custodial violence,35 and public hanging.36
The Indian Supreme Court has interpreted article 21 as a general guarantee
of procedural fairness, from which more specific procedural rights can be
derived. This interpretation is by no means unique. The constitutional
jurisprudence in the United States37 and Canada38 suggests that whatever the
29
C.I.S. Part II (1967), Passports Act 1967, § 10(3)(c), June 24, 1967.
30
A.I.R. 1978 S.C. at 622 (Bhagwati, J.).
31
See generally THE CONSTITUTION OF INDIA 37–43 (P. M. Bakshi ed., Universal Law Publishing 1999).
32
Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465; Hussainara v. Home Secretary, Bihar, A.I.R.
1979 S.C. 1360.
33
Sunil Gupta v. State of Madhya Pradesh, (1990) 3 S.C.C. 119.
34
Sher Singh, A.I.R. 1983 S.C. 465.
35
Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675.
36
Attorney General v. Lachma Devi, A.I.R. 1986 S.C. 467.
37
DUCAT & CHASE, supra note 21.
38
See, e.g., Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 (Can.) (Lamer, J.)
(the specific rights enumerated in sections 8 to 14 of the Charter are illustrative, but not exhaustive, of deprivations of life, liberty, and security of the person that are not in accordance with
principles of fundamental justice); R. v. Hébert, [1990] 2 S.C.R. 151 (Can.) (fundamental principles of justice are broad enough to encompass a detained person’s right to silence that was not
expressly set out elsewhere in the Charter). There is some question as to whether section 12 of the
South African Constitution includes a residual element. See S. AFR. CONST. (1996) § 12; Johan de
Waal, Revitalising the Freedom Right? De Lange v. Smuts NO 1998 (3) S.A. 785 (CC), 15 S. AFR. J.
HUM. RTS. 217 (1999) (arguing that, after the Constitutional Court’s decision in Nel v. Le Roux NO,
1996 (4) BCLR 592, 601, the right to freedom of the person will not perform the function of a
general and residual right to procedural fairness). But see Victor V. Ramraj, Freedom of the Person
and the Principles of Criminal Fault (2002) 18 S. AFR J. HUM. RTS. 225 (suggesting that, in contrast
with Nel v. Le Roux N.O., supra, which was decided under s. 11 of South Africa’s interim
Constitution, it remains open to the Constitutional Court to come to a different conclusion under
the different wording in s. 12 of the 1996 Constitution).
500
V. V. Ramraj
specific procedural rights enumerated elsewhere in the constitution, a due
process clause can be understood as a general guarantee of procedural
fairness, supplementing the more specific guarantees.
2.3. The procedural-privacy model
The procedural-privacy model holds that the limits imposed by due process on
the ability of the state to deprive a person of life or liberty are not only procedural but are also substantive in the limited sense that they impose constraints
on the ability of the state to interfere with individual privacy or autonomy. This
approach is substantive because it is concerned both with the process by which
a person is deprived of life or liberty and with the reason for depriving the
person of life or liberty in the first place.39 However, in questioning the reason
for the deprivation, such an approach asks specifically whether the criminalization of a particular activity is consistent with the liberty of the individual,
which it takes to be protected by the due process clause. It might ask, for example,
whether it is consistent with the due process guarantee for the state to deprive
a person of his or her liberty for performing an abortion or engaging in homosexual conduct. These are questions about the prohibitory norm itself.
This is the model of due process that was developed in its contemporary
form40 by the U.S. Supreme Court in Griswold v. Connecticut41 and Roe v.
Wade.42 Even before these cases, the due process clause had been used in a substantive way to safeguard economic liberties and freedom of contract based
on the right not to be deprived of property without due process of law.43 In
Griswold v. Connecticut, however, a broader doctrine of substantive due process
encompassing a right to privacy was formally recognized. In this case, a
Connecticut statute outlawing both the use of contraceptives and the
provision of information or instruction as to their use was found to infringe the
right of “marital privacy” implicit in the due process clause of the Fourteenth
Amendment. Roe v. Wade built on Griswold, grounding the right to an abortion
prior to the third trimester in a more general constitutional right to privacy.
This line of cases remains controversial, and subsequent decisions have
tried to narrow its impact. For instance, in Bowers v. Hardwick,44 the majority,
39
In light of the substantive aspect of this model, I refer to it elsewhere as the “privacy branch” of
substantive due process. See Ramraj, supra note 38.
40
According to Russell W. Galloway, the requirement under the due process clause that deprivations of life, liberty, or property in the United States be substantively reasonable can be traced to
Allegeyer v. Louisiana, 165 U.S. 578 (1897). See Russell W. Galloway, Jr., Basic Substantive Due
Process Analysis, 26 U.S.F. L. REV. 625 (1992).
41
381 U.S. 479 (1965).
42
410 U.S. 113 (1973).
43
This approach was based on the decision of the United States Supreme Court in Lochner v.
New York, 198 U.S. 45 (1905).
44
478 U.S. 186 (1986).
Four models of due process
501
using a lesser standard of constitutional scrutiny, held that the Fourteenth
Amendment did not protect the right to engage in consensual homosexual
conduct in the privacy of the home. But the U.S. Supreme Court has now overruled Bowers, albeit by a narrow (five to four) margin,45 in Lawrence v. Texas,46
settling at least for now the legal dispute over the status of the privacy branch
of substantive due process. But controversy lingers. While the majority argued
that the “laws and traditions of the past half-century . . . show an emerging
awareness that liberty gives substantive protection to adult persons in deciding
how to conduct their private lives in matters pertaining to sex,”47 Justice
Antonin Scalia, in dissent, insisted that the substantive due process doctrine
has been “subject to unrelenting criticism.”48 However controversial substantive due process continues to be, Lawrence confirms at the very least that the
due process clause has a tenacious substantive dimension that goes beyond
economic freedom and allows the court to scrutinize the constitutional
validity of any law that purports to interfere with an individual’s sphere of
personal freedom or liberty.
The Supreme Court of Canada is similarly empowered by section 7 of the
Charter, which confers on everyone “the right to life, liberty, and security of
the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.”49 From early in the Charter jurisprudence, it was held that section 7 had both a procedural and a substantive
component,50 which enabled Justice Wilson to argue in the 1988 Morgentaler
case that the abortion provisions of the Criminal Code according to which
only “therapeutic” abortions could be legally performed were not only procedurally unfair (as the majority believed) but also infringed the woman’s right
to liberty by preventing her from making “fundamental personal decisions
without interference from the state.”51 Later, building on Justice Wilson’s
judgment, three members of the Supreme Court held in Godbout v. Longueuil
that the right to liberty “protects within its ambit the right to an irreducible
45
O’Connor J., who concurred with the majority in the result, did not join the majority in overruling Bowers v. Hardwick. See infra note 46 at 2484.
46
Lawrence v. Texas, 123 S. Ct. 2472 (2003).
47
Id. at 2480. Even before Lawrence, though, the Supreme Court had, at least in refusal-of-treatment cases, moved away from the language of constitutional privacy rights in favor of the equally
broad concept of a “liberty interest.” According to Chief Justice Rehnquist in Cruzan v. Director,
Missouri Department of Health, 497 U.S. 261, 278 (1990), the “principle that a competent person
has a constitutionally protected liberty interest in refusing unwanted medical treatment may be
inferred from our prior decisions.”
48
Lawrence, 123 S. Ct. at 2489.
49
Charter, supra note 10, § 7.
50
Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. at 498–99 (Lamer, J.).
51
[1988] 1 S.C.R. 30, 166.
502
V. V. Ramraj
sphere of personal autonomy wherein individuals may make inherently
private choices free from state interference.”52 More recently, a majority of the
Supreme Court affirmed in Blencoe v. British Columbia that “an individual has
the right to make fundamental personal choices free from state interference,”
while adding the proviso that “such personal autonomy is not synonymous
with unconstrained freedom.”53 What distinguishes the Supreme Court of
Canada’s approach to section 7 from the U.S. jurisprudence is not the recognition of this privacy or autonomy branch of constitutional due process, but
rather its articulation, in addition, of a distinct, constitutional doctrine of
criminal fault.
2.4. The substantive model
This brings us to the fourth model, which extends substantive due process even
further. With this model, the limits imposed on the state are not merely procedural but are also substantive in the sense that they impose constraints based
both on individual privacy and on the principles of criminal fault. As with the
procedural-privacy model, the courts following this model will inquire into the
reasons for the deprivation of life or liberty but will not limit their inquiry to
questions of privacy. They will also ask whether the deprivation of life or
liberty is justified by the degree of moral blameworthiness of the defendant.
The issue, then, is not only whether a particular course of conduct can properly be criminalized but whether the person who is to be deprived of life or
liberty was sufficiently at fault as to justify the deprivation. This model of
substantive due process is thoroughly retributive in its approach to criminal
law, insisting both on the presence of fault or moral culpability as a precondition to criminal liability and on proportionality between the punishment
imposed and the degree of fault.54
This model is reflected in the early jurisprudence under section 7 of the
Canadian Charter and, more recently, in the jurisprudence under section
12(1)(a) of the South African Bill of Rights.55 We have already seen that the
52
Godbout v. Longueuil, [1997] 3 S.C.R. 844, 893 (LaForest, J.) (L’Heureux-Dubé and McLachlin,
J.J., concurring).
53
[2000] 2 S.C.R. 307, 343.
54
I refer to this approach to due process elsewhere as the “criminal fault” branch of substantive
due process. See Ramraj, supra note 38. It might therefore be suggested that there are three
models of due process, of which the procedural-privacy model and the substantive model are
but two “branches” or “components.” I am not sure that very much turns on the choice
among these approaches, but for the purposes of this paper describing them as “models”
more accurately reflects a fundamental conceptual (but, as I argue, not a normative) difference
as well as a difference in practice as between the U.S. courts and the Canadian and South
African courts.
55
The privacy or autonomy aspect of substantive due process is less developed in South Africa
and may well remain so since the right to privacy is separately enumerated elsewhere in the Bill
Four models of due process
503
Canadian courts recognized early on that fundamental justice has both a
procedural and substantive component, and that the substantive component
includes the right to make “inherently private choices free from state interference.”56 However, the substantive component of fundamental justice has also
been used by Canadian courts to scrutinize the constitutional validity of the
principles of criminal fault. Thus, in Reference re Section 94(2) of the Motor
Vehicle Act,57 the Supreme Court of Canada struck down a law that created an
absolute liability offense for driving with a suspended license, coupled with
imprisonment for a minimum of seven days. Justice Lamer explained that the
principles of fundamental justice set out in section 7 of the Charter were to be
found in the basic tenets and principles of the legal system, and held that the
provision in question was inconsistent with the longstanding principle “that
the innocent not be punished.”58 The reasoning in this case was subsequently
used to strike down the constructive murder provisions of the Criminal Code,
which imposed liability even in the absence of objective59 foresight or subjective60 foresight of death. The principle of subjective foresight was subsequently
extended to accomplice liability61 and was used to reshape the defense of
intoxication62 in light of the Charter.63 The Supreme Court of Canada made
it clear in these early cases that it was the duty of the courts under the
Constitution to review the definition of a criminal offense so as to ensure that
it accorded with the principles of fundamental justice. And subsequent
decisions have confirmed that a violation of section 7 will be saved under the
of Rights in the South African Constitution. See S. AFR. CONST. (1996) § 14; National Coalition for
Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SALR 6 (CC). However, to the extent
that constitutional rights overlap (as for instance do “privacy” and “dignity” in South Africa),
there is no good reason to think that section 12(1)(a) could not also encompass a right to privacy
or autonomy.
56
Godbout, [1997] 3 S.C.R. at 893.
57
Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486.
58
Id. at 310.
59
R. v. Vaillancourt, [1987] 2 S.C.R. 636 (Can.).
60
R. v. Martineau, [1990] 2 S.C.R. 633 (Can.).
61
R. v. Logan, [1990] 2 S.C.R. 731 (Can.).
62
See, e.g., R. v. Robinson, [1996] 1 S.C.R. 683 (Can.) (common law rules based on DDP
v. Beard infringe section 7 by requiring that the accused raise a reasonable doubt about his or
her capacity to form a specific intent as the accused could be convicted despite reasonable doubt
as to actual intent); R. v. Daviault, [1994] 3 S.C.R. 63 (Can.) (common law principle that
intoxication was not a defense to crimes of general intent infringes section 7 since an accused
could be convicted who did not act voluntarily or who lacked the minimum intent for general
intent offenses).
63
See generally Kent Roach, The Effects of the Canadian Charter of Rights on Criminal Justice, 33
ISR. L. REV. 607, 633–35 (2000).
504
V. V. Ramraj
general limitation clause in section 164 of the Charter “only in cases arising
out of exceptional conditions, such as natural disasters, the outbreak of war,
epidemics and the like.”65
In similar fashion to the early section 7 jurisprudence in Canada, the South
African Constitutional Court has also scrutinized the principles of criminal
fault under its due process clause,66 albeit with some reservations. For
instance, in S v. Coetzee, Justice O’Regan framed the test for the constitutional
validity of the standard of criminal fault cautiously, stating that it is “only
when the Legislature has clearly abandoned any requirement of culpability, or
when it has established a level of culpability manifestly inappropriate to the
unlawful conduct or potential sentence in question, that a provision may be
subject to successful constitutional challenge.”67 However, it is clear from the
South African jurisprudence that the Constitutional Court will, under section
12(1)(a), consider both the procedural and the substantive fairness of legislation under its due process clause68 and that the standard of criminal fault will
be subject to constitutional scrutiny.69
In terms of a constitutional doctrine of criminal fault, the Canadian and
South African courts have gone much further than the U.S. Supreme Court,
which flirted only briefly with the notion of a constitutional due process
constraint on the principles of criminal fault in a 1957 case, Lambert v.
California.70 The defendant was charged under a provision in the Los Angeles
Municipal Code that made it an offense for any convicted person to remain in
Los Angeles without registering. Lambert, a Los Angeles resident who had
been convicted of forgery, was charged with a violation of this law, even
though she had no knowledge of the registration requirement. Justice Douglas
found that the defendant “on first becoming aware of her duty to register was
given no opportunity to comply with the law and avoid its penalty, even
64
Charter, supra note 10, § 1 (“The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”).
65
Suresh v. Canada, (2002) 208 D.L.R. (4th) 1, 39, citing Reference re Section 94(2) of the Motor
Vehicle Act, [1985] 2 S.C.R. at 518.
66
State v. Makwanyane, 1995 (3) SALR 391.
67
1997 (3) SALR 527, 597 (CC). A similarly cautious approach is taken by the Constitutional Court
in Thebus v. S., Judgement No. CCT36/02 (28 August 2003), § 36, in which it acknowledges, with
reference to Coetzee, that the “entire scheme of sections 35 and 12(1) of the Bill of Rights authorises
and anticipates prosecution, conviction and punishment of individuals provided it occurs within the
context of a procedurally and substantively fair trial and a permissible level of criminal culpability,”
while at the same time upholding the common law doctrine of common purpose.
68
See Bernstein v. Bester, 1996 (2) SALR 751 (CC), 1996 (4) BCLR 449 (CC) (O’Regan, J.);
De Lange v. Smuts, 1998 (3) SALR 785 (CC).
69
See generally Ramraj, supra note 38.
70
355 U.S. 225 (1957).
Four models of due process
505
though her default was entirely innocent,”71 and held that the registration
requirement violated the due process clause. The majority judgment in this
case, which might have opened the door to a constitutional doctrine of criminal
fault, was criticized for its obscure reasoning by legal scholars such as Herbert
Packer, who urged the courts to articulate just such a doctrine.72 In any event,
the door to a constitutional doctrine of criminal fault was slammed shut in
a 1968 public drunkenness case, Powell v. Texas,73 in which the U.S. Supreme
Court, in the context of the prohibition against “cruel and unusual punishment” in the Eighth Amendment, expressly rejected any wider implications of
Lambert, declaring unambiguously that the Supreme Court “has never articulated a general constitutional doctrine of mens rea.”74 Subsequent decisions
have likewise rejected both Lambert and any expansion of due process to
include a constitutional doctrine of mens rea.75
71
Id. at 229.
72
See, e.g., Herbert L. Packer, Mens Rea and the Supreme Court, (1962) S.C. Rev. 107, 127–37. In his
conclusion, Packer urges the Supreme Court to develop a constitutional doctrine of mens rea,
under the banner of substantive due process that would at least prohibit strict liability: “Strict liability in the criminal law is irrational, in the substantive due process sense of the word. Mens rea
as extended to include negligence as a mode of culpability ought to find its way into constitutional
doctrine.” Id. at 152.
73
392 U.S. 514. The Supreme Court also distinguished the Eight Amendment case, Robinson v.
California, 370 U.S. 660 (1962), in which it held unconstitutional a statute making it a crime to be
addicted to narcotics. See id. at 532 (Marshall, J.). The holding in Robinson was regarded as being
limited to “pure status crimes” where no voluntary act is involved. Id. at 544 (Black, J.).
74
392 U.S. 514, 535 (1968). In a separate concurring opinion, Justice Black rejected the rule of
constitutional law urged upon the courts as it “would have a revolutionary impact on the criminal
law, and any possible limits proposed for the rule would be wholly illusory.” Id. at 544. While
openly sympathetic with the notion that it is “cruel and unusual to punish a person who is not
morally blameworthy,” he observes that “the question here is one of constitutional law” and that
the “legislatures have always been allowed wide freedom to determine the extent to which moral
culpability should be a prerequisite to conviction of a crime.” Id. at 544, 545. This deference to the
legislature might be explained, in part, by Justice Black’s underlying concerns about state autonomy and the “ancient faith based on the premise that experience in making local laws by local
people themselves is by far the safest guide for a nation like ours to follow.” Id. at 548.
75
Note, however, that a doctrine vaguely resembling a constitutional doctrine of mens rea might
nevertheless be resurfacing under the Eighth Amendment in death penalty cases. For instance, in
Tison v. Arizona, 481 U.S. 137 (1987), the majority confronted the issue of whether, in a homicide
case involving felony-murder and accomplice-liability laws, “the Eighth Amendment prohibits the
death penalty . . . [for] the defendant whose participation is major and whose mental state is one of
reckless indifference to human life.” Id. at 152. Although the majority upheld the impugned
provisions, it considered the petitioner’s “reckless disregard for human life,” albeit controversially,
as a “highly culpable mental state . . . that may be taken into account in making a capital sentencing
judgment.” Id. at 157–58. See also Enmund v. Florida, 458 U.S. 782 (1982) (referred to in Tison,
which reversed a death sentence imposed for felony-murder on the basis that penalty was
disproportionate to the personal culpability of the offender).
506
V. V. Ramraj
Concerns have been expressed in Canada that its Supreme Court has been
less rigorous in articulating a standard of criminal fault under the Charter than
it was when drawing upon common law in the pre-Charter era76 and it might
reasonably be argued that it has been rather arbitrary in limiting its review of
the standard of criminal fault to serious offenses involving a high degree of
stigma. But whatever the merits of this view, the model of fundamental justice
or substantive due process set out and applied by the Supreme Court of Canada
in the early jurisprudence—which has been echoed in the recent South African
jurisprudence but rejected by the U.S. Supreme Court in Powell v. Texas—represents a novel understanding of substantive due process, one that extends the
analysis beyond a concern for privacy or personal autonomy.77
3. Some unprincipled distinctions
We have now seen the four models of due process and the support that each of
these models finds in the constitutional law jurisprudence of Singapore, India,
the United States, Canada, and South Africa. This part of this article examines
the tensions within the procedural and procedural-privacy models and argues
that the conception of due process behind these models has no persuasive
normative justification. Subsequent parts of this article examine the formal
and substantive models in more detail.
3.1. Tensions in the procedural model
From a textual perspective, it could be argued that the wording of the due
process clauses in the constitutions of India (“except according to procedure
established by law”78) and the United States (“without due process of law”79)
requires a procedural interpretation of due process. There is, of course, a
thriving debate as to the extent to which the text of a constitution ought to
guide its interpretation. What is clear, however, is that the textualists have not
won the day in any jurisdiction, and there are equally powerful arguments for
taking into account social, cultural, historical, and normative considerations
in the process of interpreting the words of a constitution.80 But assuming that
76
See, e.g., Alan Brudner, Guilt Under the Charter: The Lure of Parliamentary Supremacy, 40 CRIM.
L.Q. 287 (1998).
77
Other jurisdictions, such as India, have also been hesitant to embark on a substantive due
process analysis of criminal fault. However, while neither entirely direct nor persuasive, in a 1990
strict liability case involving a prosecution for carrying on business without a license, the Supreme
Court of India hinted in its Order that as the appellant was “not to be blamed . . . [and had] done all
that he could do under the law,” the prosecution was arbitrary and unjustified in violation of
article 21. See Murarilal Jhunjhunwala v. State of Bihar, (1991) Supp. 2 S.C.C. 647, 649.
78
INDIA CONST. art. 21.
79
U.S. CONST. amends. V, XIV, § 1.
80
I address these arguments in more detail below, in part 4.
Four models of due process
507
there are textual arguments in favor of a procedural model of due process, two
problems emerge. First, it is not at all evident that the conceptual line between
procedure and substance is sufficiently clear to warrant drawing the line
at procedural due process. Second, even if a conceptual line could be drawn,
there may not be a convincing normative reason for doing so.
Is there a clear conceptual line between procedure and substance? As we have
seen, article 21 of the Indian Constitution provides that no person shall be
deprived of his life or personal liberty “except according to procedure established
by law.”81 In light of this specific reference to “procedure,” it might be assumed
that the Indian Constitution has drawn this line quite explicitly. But this assumption is not borne out in Indian jurisprudence. The Indian courts, while constrained by the wording of article 21, nevertheless have developed doctrines that
allow them to consider such matters as the constitutional validity of the death
penalty.82 The courts seem to assume that the validity of the death penalty is a
question of procedure. But is it? On the one hand, it might be thought that the
death penalty is a matter of sentencing, which arises after substantive questions
relating to liability have been determined, and thus is merely procedural. On the
other, the relationship between the offense committed and the punishment
imposed goes to the fairness of the classification of the offense. If petty theft were
punishable by death, for example, then theft would be a much more serious
offense than if it were punishable only by a fine. At least in this respect, the line
between procedure and substance seems far from clear.83
Some theorists have even argued that procedural rights are but a specific
form of substantive rights—substantive rights against the imposition of risks
in flawed official adjudications.84 If this argument were correct, substantive
due process rights could be seen as prohibiting the designation of criminal
offenses that punish the innocent, while procedural rights could then be
regarded as protecting innocent individuals from the risk of being convicted
notwithstanding their innocence. In either case, the right can be seen as a
right of innocent persons not to be convicted.
81
INDIA CONST. art. 21.
82
While the death penalty itself was found to be constitutional in Bachan Singh v. State of Punjab,
(1980) 2 S.C.C. 684, the mandatory imposition of the death penalty has been found to be unconstitutional (Mithu v. State of Punjab, A.I.R. 1983 S.C. 473), and other death penalty cases have
placed restrictions on its use. See, e.g., Attorney General v. Lachma Devi, A.I.R. 1986 S.C. 467 (public hanging is unconstitutional); Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465 (unjustifiable
delay in executing is unconstitutional).
83
Indeed, it is precisely the lack of clarity in the distinction between substantive and procedural
content that prompted then-Justice Lamer, in Reference re Section 94(2) of the Motor Vehicle Act, to
reject the terminology of “procedural” and “substantive” due process and instead to focus on
securing the “full benefit of the Charter’s protection” under section 7. (1985) 2 S.C.R. at 298. See
also id. at 323 (Wilson, J., arguing that the line between substantive and procedure “is a very
narrow one”).
84
Larry Alexander, Are Procedural Rights Derivative Substantive Rights? 17 L. & PHIL. 19 (1998).
508
V. V. Ramraj
A plausible counter-argument might be developed along the lines that
substantive rights are concerned with the morally innocent defendant, while
procedural rights are concerned only with the legally innocent defendant.85 But
even if the courts could draw a clear conceptual line between procedure and
substance, a more difficult issue is whether there is any normative basis for
distinguishing between procedure and substance. Why should the law be more
concerned with fair legal procedures than with moral culpability? It could be
argued that it is more properly within the courts’ powers and expertise to assess
the fairness of procedures than it is for them to assess the fairness of prohibiting
the conduct. The latter, after all, is traditionally the province of the legislature in
most systems. But this objection does not survive close scrutiny. The scope of
procedural fairness is equally controversial from a normative perspective.86 And,
as an institutional matter, the common law courts have long asserted the power
and the expertise to decide questions of moral innocence through the development of the principles of criminal liability and, in particular, the doctrine of mens
rea, while leaving questions of procedure largely to the legislature.
I shall provide an affirmative argument for substantive rights and due process
later in this article. For now, I mention but two points. First, it can be seen—from
the historical role of the courts in defining the principles of criminal liability—
that the onus falls squarely on those who would restrict the power of courts to
determine moral innocence to prove their case. Second, to the extent that our
goal is to protect the liberty of the individual from the coercive power of the state,
that liberty is no less threatened by the substantive criminal law than it is by the
procedures used by the state to deprive the individual of liberty.
3.2. Tensions in the procedural-privacy model
Whatever we might think about the distinction between procedure and
substance, the more difficult distinction to understand is the distinction
between the privacy and criminal fault branches of substantive due process
that have been drawn by the United States Supreme Court. I acknowledge that
the doctrine of substantive due process remains controversial and that many
either reject it outright or attempt to restrict its scope.87 Were their objections
85
A similar argument is advanced by Lord Diplock in Ong Ah Chuan, as a basis for rejecting
a constitutional challenge, based on the equality provision in article 12(1) of the Singapore
Constitution, to the presumption of trafficking that arises on proof of possession of a specified
quantity of illicit drugs: “Wherever a criminal law provides for a mandatory sentence for an
offence there is a possibility that there may be considerable variation in moral blameworthiness,
despite the similarity in legal guilt of offenders . . . But Article 12(1) of the Constitution is not
concerned with equal punitive treatment for equal moral blameworthiness; it is concerned with
equal punitive treatment for similar legal guilt.” [1981] 1 M.L.J. at 72–73.
86
According to Herbert Packer, a due process model competes with the crime control model for normative supremacy. Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964).
87
See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 159
(The Free Press 1990) (arguing that “there may be no real point in overturning the decision
Four models of due process
509
again to carry the day, they would then be faced with the difficult task of
drawing a normative line between procedural and substantive fairness. But to
the extent that substantive due process is an accepted part of U.S. jurisprudence
(which seems to be the case after Lawrence v. Texas), it is exceedingly difficult to
justify restricting substantive due process to cases involving threats to privacy.
Some legal theorists recognize a conceptual difference between the general
and special parts of the criminal law,88 a distinction that might support a
conceptual line between the privacy and criminal fault branches of substantive due process. The special part of the criminal law concerns the sort of
conduct (abortion or sodomy, for example) that is criminalized. It prescribes
the extent to which the state restricts our personal liberty and prevents us from
making intimate personal choices. In contrast, the general part concerns the
principles of fault (the mental element, for example) that govern a finding of
criminal liability, whatever might be the prohibited conduct. So it would seem
that there is a coherent conceptual distinction within the criminal law itself
between what is criminalized and when criminal liability is assigned.
But even if this conceptual distinction were a coherent one, it does not
necessarily justify a normative difference. If the autonomy of morally responsible persons is the underlying concern behind the right-to-privacy cases, a
person’s autonomy is no less threatened by the principles of criminal fault.
Strict liability offenses, for example, deny personal autonomy by permitting the
law to treat a morally innocent person as a means to an end. The only plausible arguments that can be made in defense of strict liability are based on utilitarian grounds of general deterrence or prosecutorial convenience,89 both of
which subordinate the autonomy of the person to collective goals or interests.
Yet the very reason for the safeguarding of privacy interests is to protect the
individual from the weight of these collective goals and interests.90
in Griswold v. Connecticut . . . since no jurisdiction wants to enforce a law against the use of
contraceptives by married couples” and this “does not mean that Roe v. Wade should not be
overruled or that the spurious right of privacy that Griswold created should ever be used to invalidate a statute again”).
88
See GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART v (Stevens & Sons Ltd., 2nd ed. 1961).
As Williams explains in the preface to the second edition, his book “is concerned to search out the
general rules of the criminal law, i.e., those applying to more than one crime. The great proliferation
of criminal offences by the legislature means that many crimes are not fully covered by judicial
interpretation; but all are governed by certain general principles, which are conveniently described
on the Continent as the ‘general part’ of the law.” Id.
89
R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 1311 (Can.) (Dickson, J., explaining, and then
refuting, the arguments in support of “absolute” liability based on the incentive they create “to
take precautionary measures beyond what would otherwise be taken” and based on “administrative
efficiency”).
90
In the absence of a constitutional doctrine of criminal fault within the due process jurisprudence, the United States Supreme Court has resorted to ad hoc principles of mens rea and culpability
elsewhere in its constitutional jurisprudence, perhaps to fill this lacuna. See, e.g., Tison, 481 U.S.
137 (refusing, in the context of an Eighth Amendment [prohibition against cruel and unusual
510
V. V. Ramraj
Setting aside for a moment these theoretical concerns, it seems that we
could as easily (if not more easily) agree on the basic principles of criminal
fault than we could agree about politically charged privacy issues such as
pornography, abortion, or sexual orientation. It is not surprising that these
latter issues are much more politically charged, as they pose a challenge to
values that are often deeply embedded in cultural and religious mores.
In contrast, there is much broader agreement on what it means for someone to be responsible as a moral agent. Few would challenge the view that
someone who is morally innocent (in the sense of being faultless) should not be
punished—or at least should not be punished to the same extent as one who is
at fault. We might disagree about the precise extent to which a particular mode
of conduct (say, recklessness) is blameworthy and we might disagree about the
precise extent of the penalty that ought to be imposed. Few, however, would
disagree that those who acted with criminal intent are more deserving of punishment than those who brought it about recklessly, negligently, or through no
fault whatever. We might also disagree about the extent to which a system of
justice ought to strive to be procedurally perfect—that is, the extent to which
the system ought to institute procedures to weed out false positives (factually
innocent persons found by the system to be legally guilty). But we are still likely
to find a broad consensus that false positives are undesirable and ought, in a
perfect world, to be eliminated.
I am not defending the implausible claim that a theory of criminal fault that
purported to justify a full substantive model of due process would be uncontroversial. My claim is simply that it would be no more so than a theory that
justified due process review in cases involving privacy or personal autonomy
concerns. It seems to me that any attempt to hold the line at judicial review
based on privacy is destined to collapse conceptually either into full substantive
review, or to retreat to a procedural-substantive divide, which, as we have seen,
has its own distinct problems.
4. An assessment of the formal model of due process
The procedural and procedural-privacy models, it seems, are unsuccessful in
drawing clear normative lines between procedural and substantive fairness
and between different kinds of substantive fairness. Only the formal and
substantive models remain as coherent normative models of due process,
though each is based on distinct understandings of the rule of law, judicial
punishment] challenge to the imposition of the death penalty in a case where the mental element
was only that of “reckless indifference,” to strike down the law, the Supreme Court held that
“[d]eeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished”).
There is at least some recognition, however ad hoc it is in the constitutional structure, that mens
rea has, perhaps, a quasi-constitutional status.
Four models of due process
511
review, and of the significance of local cultural norms to the process of constitutional interpretation. Although I intend, ultimately, to defend the substantive approach, in this part of the article I examine two possible
justifications for the formal approach. Both of these arguments insist that
judges should, as a general rule, be deferential to the legislature on questions
of criminal fault, albeit for different reasons. According to the first version of
this argument, a formal model of due process is justified since any other model
would involve an unwarranted and undemocratic judicial intrusion into the
realm of public policy, for which democratically elected legislatures, not
courts, are better suited. A second version of the argument is based on cultural
values; in Singapore, for instance, it might be argued that in the Asian cultural
context, judges should be more deferential. These arguments cut to the heart
of the controversy over constitutional due process; at stake is the justification
for judicial review itself.
4.1. Arguments from democratic legitimacy
The first version of the argument in support of a formal model is that any
other model involves an unwarranted judicial intrusion into the realm of
policy. The legislature, not the judiciary, is better suited to these sorts of
decisions.91 It might be argued, for instance, that in the absence of express
language to justify a departure from a formal model of due process, the interpretation of a due process provision must be a narrow one. This argument is
not a general argument against the substantive model since the constitutional
text might explicitly allow or demand a substantive approach. But it does
suggest a frugal approach to constitutional interpretation.
The first point in response to this textual argument is that no one seriously
argues that the language of a text, particularly of a constitutional text, is conclusive. The prevailing view in philosophical and literary circles is precisely the
opposite, that textual meaning is “open-textured” or relative to the interpreter.92 Even the originalist theory championed by Robert Bork holds that
courts must go beyond the text of the constitution to interpret it.93 So the real
issue is not whether the text is determinate, but what are the sources beyond
91
This sort of argument is even made by judges who accept generally the need for judicial review.
See, e.g., Andrews v. Law Society of British Columbia, (1989) 56 D.L.R. (4th) 1, 38 (Can.)
(LaForest, J., arguing that “[m]uch economic and social policy-making is simply beyond the institutional competence of the courts; their role is to protect against incursions on fundamental
values, not to second-guess policy decisions”).
92
See Victor V. Ramraj, Comparative Constitutional Law in Singapore, 6 SING. J. INT’L & COMP. L. 302,
322–23 (2002) (arguing that legal texts “are, at best, notoriously open-textured and, at worst, as
postmodernists would argue, have no determinate meaning, independent of the interpreter,” and
citing H. L. A. HART, THE CONCEPT OF LAW 124–36 (1961) (2nd ed., Oxford Univ. Press 1994) and
HELEN M. STACY, POSTMODERNISM AND THE LAW: JURISPRUDENCE IN A FRAGMENTING WORLD 12
(Ashgate 2001)).
93
BORK, supra note 87, 143–60 (“The Original Understanding’ ”).
512
V. V. Ramraj
the text of the constitution that the courts can legitimately consider when
interpreting it. For some, such as Bork, these must be limited to those historical
sources that go to the “original understanding” of the framers of the constitution.94 For others, such as Ronald Dworkin, constitutional interpretation
involves a search for underlying normative principles.95 Yet other constitutional scholars have recast the debate between originalists and non-originalists
as a debate about what sources, beyond the text, are appropriate to the task of
interpreting it.96 The debate over the nature of constitutional interpretation is
too complex to pursue fully here. But once it is recognized that the text alone
is not determinative, the textual argument loses much of its force.97
The structure of a constitution might also be regarded as an important
limitation on its interpretation. For instance, it might be thought that where a
constitution contains an express mechanism for limiting rights, the courts
have more room for an activist interpretive approach since the constitution
specifically provides for taking state interests into account.98 So the Canadian
Charter of Rights and Freedoms or the South African Bill of Rights, both of
which include a general limitation clause,99 would allow for a broader
interpretation of their constitutional “due process” provisions than would an
unqualified due process clause, such as is found in the United States (or, for
that matter, in India or Singapore). Attractive as this argument seems as a
justification for a more cautious approach to constitutional due process, it is
ultimately unconvincing. First of all, the same argument would also weigh
94
Id. at 144 (arguing that the “original understanding is . . . manifested in the words used and in
secondary materials, such as debates at the conventions, public discussion, newspaper articles,
dictionaries in use at the time, and the like”).
95
See RONALD DWORKIN, LAW’S EMPIRE 355–99 (Harvard Univ. Press 1986) (“The Constitution”).
96
Stephen M. Griffin, Theories of Constitutional Interpretation, in AMERICAN CONSTITUTIONALISM: FROM
THEORY TO POLITICS 140–91, 151 (Princeton Univ. Press 1996).
97
Even in Singapore, where the formal model of due process holds sway with some judges, the courts
are still prepared to go beyond the constitutional text to the historical context when interpreting
some provisions in the Constitution. See, e.g., Public Prosecutor v. Taw Cheng Kong, [1998] 2 S.L.R.
410, 419–27 (Yong, C.J., reviewing at length the constitutional history of Singapore and Malaysia
to determine whether the Singapore Parliament has the power to legislate extraterritorially).
98
Kent Roach makes a more general argument along these lines in KENT ROACH, THE SUPREME COURT
ACTIVISM OR DEMOCRATIC DIALOGUE (Irwin Law 2001).
ON TRIAL: JUDICIAL
99
Charter, supra note 10, § 1; S. AFR. CONST. (1996) § 36. Section 1 of the Charter “guarantees the
rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.” Section 36(1) of the South African Bill of
Rights provides that the “rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant factors,
including: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the
nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e)
less restrictive means to achieve the purpose.”
Four models of due process
513
against an approach to procedural due process in the United States, and yet the
United States Supreme Court has not hesitated to be very robust in its
approach to procedural due process rights even in the absence of a limitation
clause.100 Second, there is no doubt that a “definitional” balancing of constitutional rights and state interests does indeed take place in American
constitutional jurisprudence.101 Structure, it would seem, is less important
than understanding the nature of rights and the relationship between those
rights and any reasonable limits to them.
But even if a narrow textualist or structuralist approach were rejected, it
might still be argued that judges should not venture into the arena of policy for
reasons of democratic legitimacy. An important concern behind the textualist
approach is precisely that appointed judges do not have the same democratic
credentials as elected legislative representatives. One might therefore be tempted
to minimize the scope of judicial review in constitutional cases generally, and due
process cases in particular, by limiting the sort of cases that are subject to judicial
review. But as I argued earlier, these attempts are normatively suspect and tend to
rely on arbitrary line-drawing. A more conceptually coherent position would be
that judges should focus on questions of formal validity or legality rather than
substantive content, as the Singapore Court of Appeal did in Jabar. The Court of
Appeal, it will be recalled, insisted that any law “which provides for the deprivation of a person’s life or personal liberty, is valid and binding so long as it is validly
passed by Parliament” and the court was “not concerned with whether it is also
fair, just and reasonable as well.”102 Following this approach, the scope of judicial
review for an alleged infringement of due process would be extremely narrow,
since in all of the jurisdictions we have been looking at it would an exceptional
case in which a person is deprived of liberty without any legislative basis whatever. But it would arguably have a greater legitimacy precisely because it is
content-neutral and deferential to the legislature.
It should be observed that while this argument provides support for a formal
due process, it is really a broader a challenge to constitutional rights. There are
a number of well-known responses. It might be argued, for instance, that an
expansive approach to judicial review is a countermajoritarian check,103 or
100
See DUCAT & CHASE, supra note 21, and accompanying text.
101
The pervasive use of “balancing” in American constitutional jurisprudence is clearly
demonstrated in T. Alexander Aleinikoff, Constitutional Law in an Age of Balancing, 96 YALE L.J.
943 (1987).
102
103
Jabar, [1995] 1 S.L.R. at 631.
See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 85 (Harvard Univ. Press 1977) (explaining
in his chapter on the role of legal principles in hard cases, “an argument of principle does not often
rest on assumptions about the nature and intensity of the different demands and concerns
distributed throughout the community. . . . A judge who is insulated from the demands of the
political majority whose interests the right would trump is . . . in a better position to evaluate the
argument”).
514
V. V. Ramraj
even a necessary component of an ongoing institutional dialogue between
judiciary and legislature.104 I shall not evaluate or defend these general
arguments here. But I do question whether a formal model of due process alone
would be enough to satisfy critics of judicial review. Most modern constitutions
invoke such value-laden concepts as liberty, freedom, and equality that require
the courts to engage in normative analysis and make normative interpretive
choices. And, as my earlier arguments suggest, attempts to limit the scope of
judicial review to a particular range of issues often amount to little more than
unprincipled line-drawing. It seems unlikely that critics of judicial review
would be satisfied by anything short of an outright repudiation of constitutional rights and a return to a regime of legislative supremacy, coupled perhaps
with a limited form of judicial review based on the concept of legality.
4.2. The Asian values argument
A rather different kind of argument in support of the formal model might be
made on broadly cultural grounds. Instead of focusing on the democratic legitimacy of judicial review, it might be claimed instead that the particular social,
cultural, and historical context of a constitution justifies the formal approach.
In Southeast and East Asia, the argument that a more deferential approach to
the legislature is justified by the particular sociocultural values of the region
is a version of the so-called “Asian values” argument.105 Although this
argument is not often linked directly to questions of constitutional interpretation,106 it is said to embody a vision of rights distinct from the West:
The Asian argument views culture as the factor that makes Asian people
and societies, in contrast to their Western counterparts, more “consensusseeking,” “communitarian,” and “accepting of authority.” The state and
the citizen, the majority and the minority: these are not necessarily in
conflict, contrary to what Western democratic theorists suppose when
they warn of the Leviathan or the “tyranny of the majority.” They can
be brought into harmony. . . . The emphasis is not on individual rights,
which are Western constructs; rather it is on duties. Duties, once fulfilled, create and earn rights for the individual. In this way, conceptions
of “rights” in Asian society differ from . . . Western concepts that see
rights as self-evident, not created.107
104
ROACH, supra note 98.
105
For two useful overviews of the “Asian values” controversy, see Venkat Iyer, Asian Values and
Human Rights, in DEMOCRACY, HUMAN RIGHTS AND THE RULE OF LAW: ESSAYS IN HONOUR OF NANI
PALKHIVALA 155–72 (Venkat Iyer ed., Lexis Law Publishing 2000); Daniel A. Bell, The East Asian
Challenge to Human Rights: Reflections on an East West Dialogue, 18 HUM. RTS. Q. 641 (1996).
106
For two recent attempts to do so, see Li-ann Thio, An “i” for an “I”? Singapore’s Communitarian
Model of Constitutional Adjudication, 27 H.K. L.J. 152 (1997); Ramraj, supra note 38.
107
Simon S. C. Tay, Human Rights, Culture, and the Singapore Example, 41 MCGILL L.J. 743, 757 (1996).
Four models of due process
515
If this view of rights were adopted, including its emphasis on the importance
of community and consensus,108 it would imply that the judiciary should be
respectful of and hesitant to second-guess the will of the legislature. The role
of the judiciary, it might be argued, is simply to ensure that rules of formal
validity are observed.
There are several objections to the Asian values argument itself—such as
whether there can be a homogeneity of values across such a large, diverse, and
densely populated region;109 whether, in any case, a shared set of values can
accurately be isolated and identified;110 and whether such values are present to
the exclusion of contrary values.111 I shall not examine these arguments here.
Instead, I assume provisionally that they can be met, and focus instead on specific
problems with the Asian values argument from a constitutional perspective.
The problem with an Asian values approach to constitutional interpretation
is that it is inconsistent with the idea of constitutionalism itself, which ostensibly
governs the interpretation of many constitutions in Asia, including Singapore.
It suggests that the institutions are not what they purport to be—that the
rights as set out in the constitution are not really rights and that judicial
review is not really judicial review. Many constitutions in East and Southeast
Asia, in express terms, purport to recognize and protect human rights and
imply or expressly maintain both the separation of powers and the independence of the judiciary. But a deferential “Asian” or communitarian approach to
constitutional interpretation of the sort described in the literature112 is difficult
to reconcile with the robust constitutionalism promised in the various constitutions. In Singapore, for example, it is hard to reconcile a deferential
“Asian” approach to constitutional interpretation with a broadly worded
due process guarantee113 that forms part of a larger constitutional framework
that purports to protect religious freedom; freedom of speech, assembly and
association; and equality before and equal protection of the law.114
108
These are two of the values described in the Singapore government’s White Paper on Shared
Values (Jan. 2, 1991) Cmd. 1 of 1991.
109
See, e.g., Amartya Sen, Human Rights and Asian Values, in BUSINESS ETHICS IN THE GLOBAL MARKET
37–62, 42–43 (Tibor R. Machan ed., Hoover Institute Press 1999).
110
Even if there are some shared values across Asian traditions, constitutional problems are likely
to arise in precisely those situations where these values appear to diverge. Consider, for example,
the controversy that arose recently in Singapore when four Muslim girls were suspended from
school after insisting on wearing a tudung (a Muslim headscarf). For an account of this incident,
see Li-ann Thio, Recent Constitutional Developments: Of Shadows and Whips, Race, Rifts and Rights,
Terror and Tudungs, Women and Wrongs, 2002 SING. J. LEGAL STUD. 328.
111
Sen, supra note 106, at 44.
112
See, e.g., Thio, supra note 106.
113
SING. CONST. art. 9, § 1 (“No person shall be deprived of his life or personal liberty save in accordance with law”).
114
Id. arts. 15, 14, 12.
516
V. V. Ramraj
The arguments in this part are not conclusive against the formal model.
They are intended only to highlight the controversial claims that would have
to be defended to justify a formal model of due process: (a) that judicial review
should not be concerned with substantive normative issues but only with
questions of legality; and (b) that in light of particular cultural values, the
institutions of the constitution, including judicial review, are not what they
purport to be.
5. A defense of the substantive model of due process
It remains for me to provide an affirmative argument in support of the
substantive model. The arguments that we have been looking at tend to favour
a substantive model of due process because, if judicial review is accepted and
other constitutional rights are protected, there is no good reason not to extend
the same degree of protection to the realm of criminal fault. The success of this
argument depends on accepting the need for judicial review generally, and the
non-uniqueness of criminal fault. I intend now to provide an independent
argument, one that is rooted not in the need for judicial review but rather in
the need for coherence, consistency, and predictability in the substantive criminal law. The essence of this argument is that the only way to achieve coherence,
consistency, and predictability in the criminal law is through a constitutionally
rooted theory of criminal fault.
Put another way, by forcing constitutional courts to articulate a coherent,
normative theory of criminal fault, substantive due process provides the only
plausible response to charges of indeterminacy and inconsistency in the
substantive criminal law. There are three possible explanations for such
indeterminacy. The first, and perhaps strongest version of the claim, is the legal
realists’ argument that all law, including criminal law, is indeterminate and that
the rational rhetoric of the law masks the reality that legal decisions are made
for extralegal, political reasons. On this view, the indeterminacy is arguably
inherent in the law. A second way in which the criminal law is indeterminate is
that there is sometimes no principled way of resolving specific doctrinal
inconsistencies; the law points us in different directions even with respect to a
single issue and there is no way within the rules of, for example, stare decisis to
reconcile inconsistent lines of cases. The indeterminacy here might be called historical indeterminacy. Third, criminal law may be said to be indeterminate
because of its mixture of common law and statutory principles. The indeterminacy here is systemic, arising out of the competing sources of law within a single legal system. My argument in this section is that if there is an answer to these
charges of indeterminacy, it depends on the articulation of a unifying theory of
criminal law, and that the best vehicle for articulating and implementing that
theory is substantive due process. Let us begin by examining more carefully
these three forms as they relate to the principles of criminal fault.
Four models of due process
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5.1. Inherent indeterminacy
The legal realist claims that legal reasoning is inherently indeterminate. This is
the most serious of the three forms of indeterminacy because it represents a
challenge to the rationality and autonomy of law and of legal reasoning itself.
Mark Kelman advances a version of this argument specifically for criminal
law. Kelman challenges the view that doctrinal arguments in the criminal law,
“while grounded in politically controversial purposes, are deduced or derived
in a rational and coherent fashion once the purposes are settled.”115 He maintains, instead, that before we reach the phase of legal argument that he calls
“rational rhetoricism,” where standard doctrinal arguments are made, there is
a preliminary phase of “interpretive construction.”
Interpretive construction involves the framing of concrete factual situations
in terms of legal concepts.116 This allegedly non-rational process of framing a
factual dispute in legal terms masks the real basis for legal decision making,
which is based on conscious or unconscious political or philosophical beliefs that
Kelman calls “interpretive constructs.”117 One of these interpretive constructs
involves the use of broad and narrow timeframes.118 To illustrate how this
unconscious construct operates, Kelman explains that “issues of voluntariness
of a defendant’s conduct can be resolved only after we have agreed, for reasons
outside of our rational discourse, to include within the relevant time frame some
obviously voluntary act that contributes to the ultimate harm.”119 The choice of
whether to look at the defendant’s earlier choices or only the precise moment of
the incident, which is neither explained nor made in the same way in all criminal settings,120 is an “arational choice . . . [that] keeps us from having to deal
with more explicit political questions arising from one conscious interpretive
construct—the conflict between intentionalism and determinism.”121
Kelman uses many examples from the positive criminal law in the United
States to illustrate how each of the interpretive constructs that he identifies
gives rise to legal indeterminacy. His analytic approach follows a typical
pattern. He begins with a doctrinal dispute in substantive criminal law and
identifies the manner in which the substantive criminal law purports to
115
See, e.g., Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV.
591, 591 (1981).
116
Id. at 592.
117
Id.
118
According to Kelman, there are four forms of unconscious constructs (broad and narrow time
frames, disjoined and unified accounts of incidents, broad and narrow views of intent, and broad
and narrow views of the defendant) and two conscious constructs (intentionalism and determinism,
rules versus standards) that are used by the courts. See id. at 593–600.
119
Id. at 592.
120
Id. at 592–93.
121
Id. at 594.
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V. V. Ramraj
address the problem. He then argues that the resolution of the problem
depends not on principles of substantive criminal law but rather on interpretive constructs that do not form a part of the legal discourse. For example,
Kelman argues that the outcome of cases involving strict liability depends
ultimately not on principles of criminal liability but rather on the unconscious
interpretive constructs of time framing and a conscious interpretive construct
that he describes as the choice between rules and standards.122
Consider his views on time framing in strict liability cases. Kelman argues
that whether or not it is regarded as wrong to punish the defendant because he
or she “could not have helped it” depends on the time frame one adopts. If we
look far enough back, he explains, we can always find an earlier stage at which
the accused could have taken affirmative steps to avoid the harm caused.123
But the explanation as to why a particular time frame is unconsciously
adopted in a particular case is not legal but, in fact, political or ideological:
In terms of “explaining” the narrow time-framed interpretation that
suppresses the policy complexities of the strict liability issue, one could
conceivably see the construction in either result-oriented or ideological
terms. One can view this attack on strict liability as a simple class-biased,
result-oriented defense of corporate managers, those persons most likely
to harm others through routine business operations. Certainly, the bulk
of strict liability crimes are regulatory crimes, which, unlike the traditional common law incidental harms, are most likely to be committed
by those who control the means of production. Of course, the defense of
strict liability is likewise grounded in a political agenda—in an attempt
to “get” harm-causing managers—rather than in abstract “legal”
thought. But since strict liability crimes have rarely been imposed in
ways that threaten corporate managers, the narrow-time-frame-based
dismissal of strict liability more likely serves ideological ends.124
It is therefore the ideology behind the use of the “unconscious” interpretive
construct of time framing—which does not form part of the legal discourse—
that ultimately determines the result in a particular case, not the principles of
criminal fault set out in the case law.125
122
Id. at 605–11.
123
Kelman gives the example of People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799 (1956), in which
the defendant, as a result of an epileptic fit, lost control of his car, which struck and killed the victims, and was convicted for negligent homicide on the basis that, in Kelman’s words, “he had made
a conscious decision to drive, knowing that an epileptic fit was possible.” Kelman, supra note 15,
at 603. Kelman argues that cases such as Decina, which open up the time frame, are difficult to
square with other cases where the courts, by employing a narrow time frame, rule out the possibility of prior voluntary conduct that might have led to the “involuntary” conduct in question. Id.
124
125
Kelman, supra note 15, at 610.
Id. at 607–8. See also Mark Kelman, Strict Liability: An Unorthodox View, in 4 ENCYCLOPAEDIA OF
CRIME AND JUSTICE 1512–18 (Sanford H. Kadish ed., The Free Press 1983).
Four models of due process
519
There are different ways of responding to Kelman’s argument. We could, for
instance, dispute his positive claims about the state of the law of strict liability
in a particular jurisdiction. We could dispute his claim that strict liability has
“rarely been imposed in ways that threaten corporate managers” or argue that
strict liability is not applied as rigorously in non-regulatory cases. However, we
could also question his claim that the use of a time frame is arbitrary and
ideologically driven.
Why should we accept Kelman’s claim that the choice of time frame is
necessarily unconscious, ideologically driven, and arbitrary? Kelman’s
methodology implies that the inconsistencies of case law that he has exposed
prove the arbitrariness of legal decision making in criminal law and lead,
ultimately, to an explanation outside legal discourse. There is no disputing that
there are varying degrees of inconsistency within the substantive criminal law
of any jurisdiction. But we might just as well argue that the inconsistency
arises from the absence of a clearly articulated theory of criminal fault. We can
certainly agree with Kelman that the case law does not always address fundamental philosophical questions about, for instance, the nature of responsibility, but we can, at the same time, reject his conclusion that the law need not do
so and that the answers to these questions are necessarily extralegal. Indeed, it
may well be that the purpose of theorizing on a specific area of law is to provide
a principled basis for resolving doctrinal ambiguities within that area of law.
Such is the view of Michael Moore in the first chapter of Placing Blame,
entitled “A Theory of Criminal Law Theories.”126 Moore shows how theories of
particular areas of law might be able to answer charges of indeterminacy.
According to Moore, the theory of an area of law can take one of three forms:
historical, descriptive, or evaluative. Historical theories try to explain the
emergence of an area of law in a value-neutral way, looking for causal explanations for how the law has come to be the way it has. In contrast, “a deep
description does not deal with datable historical events (case decisions and
emergence of doctrine, beliefs of judges) or with the causal relations that may
exist between them” but rather “with timeless propositions of law . . . and the
logical relations that may exist between them.”127 Finally, an evaluative theory
is a theory of what an area of law ought to be about. Moore proceeds to defend
a descriptive theory of the general part of the criminal law, which governs the
principles of criminal liability.128 But since his theory is descriptive, Moore has
to tell us what body of law he purports to describe. And he does. Moore says
126
MICHAEL MOORE, PLACING BLAME 3–80 (Oxford Univ. Press 1997).
127
Id. at 9.
128
Id. at 9–10. In contrast with his approach to the general part, Moore defends normative theory
of the special part, which governs the sort of conduct that is criminalized. Id. at 64–78. Since we
are concerned only with the principles of criminal fault, his normative theory of the special part
need not detain us.
520
V. V. Ramraj
explicitly that his “interest in this paper is in a theory of criminal law as it
exists in Anglo-American legal culture.”129
In explaining what a descriptive theory would look like, Moore makes two
points that bear on the problem of indeterminacy. First, the development of a
descriptive theory is important because it implicitly comprises part of an area
of law and “helps judges to find those unobvious standards that bind them as
judges.”130 One of the reasons Moore offers for this proposition, which is
particularly important to this discussion, is that deeply descriptive theories
enhance predictability.131 They do so in two ways—by covering “cases not
covered by the less general doctrines and decisions, and thus [making] determinate (and thus predictable) what would be indeterminate without them,”132
and then by serving a heuristic function for situations already covered by
existing doctrine.133
Second, Moore argues that a descriptive theory, while purporting to explain
the law as it is, necessarily has an evaluative component. This is because of
what philosophers call the under-determination of theory, which holds, in the
context of scientific theories, that an infinite number of theories might equally
explain a set of phenomena. In science, experimentation might help us to
falsify certain theories. But in law, values must, in Moore’s words, “enter into
descriptive theories at least as tie-breakers between equally well-fitting
theories.”134 Thus, even a descriptive theory of an area of law, such as criminal law, must have an evaluative component if it is to be of any use to judges.
The legitimacy of the descriptive theory is therefore a function of how well
it fits and how morally sound the theory is.135 However, Moore explains,
notwithstanding their evaluative component, deeply descriptive theories do
not collapse into evaluative theories because “such theories still take seriously
the institutional history that makes up an area of law.”136
129
Id. at 19.
130
Id. at 13.
131
Id. at 11.
132
Id.
133
Id. at 11–12. Here Moore refers to C. C. Langdell’s famous heuristic in contract law that a
contract is a “meeting of minds.”
134
Id. at 15.
135
Moore’s argument is, at this point, very much Dworkinian. Ronald Dworkin offers an
interpretive theory of the constitution according to which the judge’s interpretation of the
constitution as a whole “and of its abstract clauses, must be foundational. . . . It must fit and justify
the most basic arrangements of political power in the community, which means it must be a
justification drawn from the most philosophical reaches of political theory.” RONALD DWORKIN,
LAW’S EMPIRE 380 (Harvard Univ. Press 1986).
136
MOORE, supra note 126, at 18.
Four models of due process
521
Moore’s theory of criminal law theories is considerably more sophisticated
than these two brief points might indicate. But Moore does suggest to us how a
theory of law might provide an answer to Kelman’s inherent-indeterminacy
thesis. Moore’s theory tells us that a theory of an area of law may guide judges
in cases not covered by pre-existing rules. When faced with a novel issue, judges
could look to an overarching theory of criminal law for an answer. But this in
itself is not enough to answer the charge of indeterminacy. The charge of indeterminacy is not simply a charge that there are gaps in the law—that the law is
incomplete. Rather, it is a charge that even when the law seems to address the
point in question, it is unable to yield a determinate answer. Moore’s descriptive
approach, which is committed to a theory that provides the best fit with the
positive law, is constrained by “an institutional history that is far from ideal.”137
A theory of criminal fault that is rooted in the constitution can assist us
here; it can provide us with a theory that enhances predictability and reduces
indeterminacy by helping us to weed out those doctrines that are anomalous
and that cannot be explained merely by a descriptive theory. This is not to say
that the theory must necessarily reject the institutional history, only that it
need not contort itself in an incoherent way simply to explain doctrines that
do not fit easily with the foundational normative principles. Another way of
looking at the matter is that between the two factors that Moore uses to evaluate a descriptive theory—fit and moral goodness—the latter, supported by a
normative theory of the criminal law, must ultimately have more weight.138
Moore provides us with a retributive theory of criminal fault that he claims is
both the best description of Anglo-American criminal law and morally better
than a utilitarian theory. Whatever the merits of Moore’s theory, could such a
theory—assuming that it is both a good fit and normatively defensible—provide
an answer to the three forms of indeterminacy identified above? As far as
Kelman’s inherent-indeterminacy thesis is concerned, the answer is “quite possibly.” To the extent that the theory makes explicit and takes a clear stand on the
questions that Kelman regards as part of the conscious or unconscious constructs employed by judges, legal indeterminacy would be minimized. Indeed,
most modern retributive theories, including Moore’s, are built on an explicit theory of responsibility.139 At the very least, such a theory would account for the
137
Id.
138
Dworkin makes a similar point, in responding to the claim that stability (and hence “fit”) is
more important than moral goodness in the interpretation of constitutional rights: “Stability in
the interpretation of . . . these rights taken one by one is of some practical importance. But since
these are matters of principle, substance is more important than that kind of stability. The crucial
stability in any case is that of integrity: the system of rights must be interpreted, as far as possible,
as expressing a coherent vision of justice.” DWORKIN, supra note 135, at 368.
139
MOORE, supra note 126, at 45–60. For a contemporary philosophical approach to criminal
responsibility based on action theory, see ANTONY DUFF, INTENTION, AGENCY AND CRIMINAL LIABILITY:
PHILOSOPHY OF ACTION AND THE CRIMINAL LAW (Blackwell 1990).
522
V. V. Ramraj
indeterminacy in the positive criminal law; furthermore, by providing an
antidote, the theory would diminish the claim that the indeterminacy is inherent.
5.2. Historical and systemic indeterminacy
What of the charges of historical indeterminacy and systemic indeterminacy?
The charge of historical indeterminacy is agnostic as to whether the law is
inherently indeterminate. But it maintains that, as a matter of fact, judges have
interpreted particular points of law in inconsistent ways by relying on
competing lines of cases, which happen to point in different directions, and
that there is no clear rule based on, say, stare decisis, that would lead us to a
definite legal conclusion. Similarly, the charge of systemic indeterminacy
maintains that indeterminacy arises from the complex interplay of common
law and statutory principles based on conflicting first principles.140 So even
where the case law is consistent on a particular point of law, there is no overall
consistency. This is because common law principles and statutory principles
point in different, inconsistent, directions in respect of principled issues
relating to the substantive criminal law.
To respond successfully to Kelman’s charge of inherent indeterminacy, a
theory of criminal fault would have to provide a mechanism for purging
anomalous doctrines from the criminal law, whatever their historical or
statutory basis. It might be argued, however, that whatever the merits of a
theory of criminal fault for coherence, consistency, and predictability, it need
not be constitutionally entrenched. The common law, it might be thought,
could just as easily respond to charges of indeterminacy. There is certainly
something to this point. For instance, the common law in South Africa has,
since the 1960s, been interpreted largely in accordance with retributive
principles of criminal justice.141 And Canadian legal scholars have observed
that the pre-Charter, common law principles of criminal fault142 were in many
respects closer to retributive principles.143
140
One example of this complex relationship can be seen in the tension in Singapore criminal law
between the Penal Code–based approach to strict liability (which seems to allow for a defense of
mistake of fact in good faith) and the common law approach (which involves a presumption of
mens rea but allows for strict liability in certain circumstances). See Chan Wing Cheong,
Requirement of Fault in Strict Liability, 11 SING. ACADEMY L.J. 98 (1999); KHENG LIAN KOH ET AL.,
CRIMINAL LAW IN SINGAPORE AND MALAYSIA 83–94 (Lexis Law Publishing 1989).
141
R. v. Nsele, 1955 (2) SALR 145 (A). See also R. v. Bernardus, 1965 (3) SALR 287 (A) (rejecting
the notion that a person could be convicted of culpable homicide when they could not reasonably
have foreseen the death). See generally 1 E. M. BURCHELL ET AL., SOUTH AFRICAN CRIMINAL LAW AND
PROCEDURE 220 (3rd ed, 1997) (arguing that since the early 1960s, the common law has moved
away from the objective test in favor of a subjective test of intention).
142
Such as were articulated by the Supreme Court of Canada. See Sault Ste. Marie, [1978] 2 S.C.R.
1299.
143
See Brudner, supra note 76. Glen Luther made this point to me independently, during my staff
seminar at the University of Calgary in December 2001.
Four models of due process
523
These are crucial practical concerns, which cannot be lightly disregarded.
Certainly, if an answer to Kelman’s indeterminacy thesis is to be had at all, it
would take more than a coherent theory of criminal fault as embodied by a
substantive model of due process. It would also require a judicial commitment
to constitutionalism and to the basic notion of judicial review. A half-hearted
approach to judicial review and to substantive due process—one that does not,
at least in the long run, take the normative demands of substantive due
process to their logical conclusion, or that dilutes them in their application—
is likely to pose as much of a threat to the underlying theory of the criminal
law as is posed by a purely common law approach.144
However, with a sufficient institutional commitment on the part of the
judiciary and the major players in the legal system to reducing the scope of
indeterminacy in the substantive criminal law, a constitutionally rooted
theory of criminal fault could well provide the needed mechanism (say, a
declaration of constitutional invalidity) for purging principles of statutory law
that are inconsistent with the basic normative framework. By locating a
theory of criminal fault at the constitutional level, in terms of a theory of
substantive due process, we give the theory the tools it needs to bring about a
greater degree of consistency and predictability than is possible in a system
where statutory principles of fault mingle freely, if uneasily, with their
common law counterparts.
6. Conclusion
I have tried to demonstrate in this article that of the four models of due process
that can be gleaned from the constitutional jurisprudence of Singapore, India,
the United States, Canada, and South Africa, only two (the formal model and
the full substantive model) stand out as coherent. The other two (the procedural model and the procedural-privacy model) rely on arbitrary distinctions
and unprincipled line-drawing, suggesting that if constitutional due process
review is accepted, there is no normative basis for limiting judicial review to
considerations of procedural fairness or personal autonomy.
The main problem with the formal model is that it involves an emaciated
approach to constitutionalism and judicial review. This is particularly
problematic in the context of a modern constitutional framework that
purports to protect fundamental freedoms, with all their normative dimensions.
The normativity of the contemporary constitution is hard to square with a
vision of constitutionalism based simply on the formal notion of legality.
To argue that a modern constitutional framework, such as is found in the
countries I have considered, is consistent with a formal approach to constitutional interpretation, is not convincing. Although I believe that many of the
144
See Ramraj, supra note 8, esp. Part II (b) A Hesitant Constitutional Approach to Criminal Fault?
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V. V. Ramraj
objections to judicial review can be met, I do not in this paper attempt to defend
it from the ground up. Rather, my goal has been to show that the real debate
over the interpretation of constitutional due process is a debate over judicial
review itself, and attempts to frame it as, for instance, a debate as to whether
due process review should be procedural or substantive, obscure the real
issue.145 Opponents of a substantive model of due process—whether in the
West or in Asia—must be prepared to defend the outright repudiation of modern constitutionalism per se and a return to an age of executive or legislative
supremacy with, perhaps, a limited role for the judiciary in scrutinizing the
legality of government action.
Such are the problematic implications of a formal model of due process. But
an affirmative argument can also be made in support of a substantive model,
based on the need for consistency. The first premise of this argument is that the
three branches of due process, represented incrementally by the procedural,
procedural-privacy, and full substantive models of due process, are not
normatively distinguishable. Procedural fairness in the criminal law, the
protection of a sphere of autonomy in fundamentally personal decisions, and
the protection of the morally innocent from punishment have in common the
protection of the liberty of the individual from unreasonable interference by
the state. Normative consistency demands that the constitution guarantee all
three. The second premise of my affirmative argument is that a normative
theory of criminal fault entrenched in a constitutional doctrine of substantive
due process provides the best possible response to the claim of indeterminacy
of criminal doctrine. A substantive due process doctrine forces courts to think
seriously about underlying normative issues in precisely the same way that
they do for other constitutional issues; it forces them to articulate fundamental normative principles that will constrain the pursuit of otherwise legitimate
policy objectives by the state. And a substantive model of due process provides
the courts with the necessary tool—the declaration of constitutional invalidity—to shape the principles of criminal liability, whether statutory or common
law, into a coherent normative system. I do not mean to suggest that any jurisdiction has successfully achieved this goal. But the judicial recognition of the
substantive model of due process is a necessary first step.
145
The same goes for general challenges to judicial review based on cultural relativism. The question is not whether substantive due process is inconsistent with, say, Asian values, but whether
judicial review is. This is a more fundamental question, but courts in Singapore, for example, purport to accept judicial review, at least in theory.