Agents of Our Interests: The Moral Claim to Legal Process

The paper examines important, but underappreciated, aspects of being a rights claimant to vindicate a fundamental moral claim to due process. Much current thinking on the justification of procedural rights treats them as essentially instrumental in character, particularly in securing against risks to legally protected interests. Such instrumentalism lends itself to skepticism about fundamental, pre-institutional procedural rights. Although I accept that legal procedure is, in part, about protecting important human interests from institutional abuse, I argue that due process is also inherent to the regard a sovereign legal order must evince to its subjects, who have a moral status as claimants of their rights. As I frame it, rights claimants are officers of their titles and can demand, as a prerogative of that office, attestation of proper treatment of their rights-based entitlements in the form of public, participatory procedure. The claim is fully general across social contexts where interactive conduct bears on basic rights, but in the context of sovereign law, it requires familiar procedural protections typically treated under the heading of “due process”. The idea of claim rights asserts that individuals occupy a moral office, and participatory legal procedure is among the social background conditions for the effective and dignified exercise of that office.