Contested tort-law cases implicate both process as well as substance. Process. Process encourages fair procedures so that all interested have notice and a right to be heard. Substance. Substance addresses the actual merits of what’s at stake. We navigate this split in all contested proceedings, and there’s some relationship between the two.
The Due Process Clause has a similar aspect: “I start briefly with the first question, what is substantive due process, because, strangely enough, if you look through Supreme Court opinions you will never find a definition. Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed the proper procedures when it takes away life, liberty or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation. Consider this simple illustration. The Supreme Court has said that under the word liberty in the due process clause, parents have a fundamental right to the custody of their children. Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody. Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.”[1]
What are some “compelling” reasons giving rise to an “adequate” justification? Public health, stability, safety––society seeks many of the same goals as any other living organism. Those public goals in turn lead to the question: what end result does a reasonably well-functioning society seek? Edward Gibbon, surveying the Roman Empire, notes in passing: “In a civilised state, every faculty of man is expanded and exercised; and the great chain of mutual dependence connects and embraces the several members of society.”[2]
Every faculty of man is expanded and exercised. People are capable of accomplishing (and withstanding) far more than is typically recognized. It’s probably a good idea, physically and mentally, to press up against one’s outer limits from time to time. Expanding the faculty of mankind––who would have guessed this to be a key ingredient to a successful society. It has to with untapped potential, path-clearing, charting a voyage, setting sail. The undiscovered ocean awaits––successful societies enable its citizens to undertake the journey.
The great chain of mutual dependence connects and embraces the several members of society. We don’t often think of “mutual dependence” as being essential to society, but it is. A silent, mutual promise exists between those in power and those not. Both must agree to treat the other with––well, not only respect, but with something akin to devotion, fidelity. Lawsuits provide all––young and old, powerful and powerless––with a means to an end. Be wary of those who would restrict or abolish legal rights in the name of “expediency” or “efficiency,” “profitability” or “progress.” They may be unwittingly weakening the very pillars which support the entire edifice.
Mutual dependence––a principle assumed but not expressed––supports and justifies all tort-law cases. The great challenge of the modern era is to create the legal framework for a world order where nation states retain their cultural, economic, and political sovereignty while simultaneously being governed by a set of laws which protect the earth, its environment, and all of its inhabitants. There’s a tension there to be resolved. Many countries today are one-note, one-idea dictatorships because they’re incapable of conceptualizing any other way of maintaining order.
Tort law will continue to play its small role in a free society––as well it should. Process and substance, method and justification––a good way of thinking about any case, even a simple car accident, is to recognize the importance of both aspects. In one’s day to day practice, it’s probably useful to ask how procedure can help with substance, and how substance can help with procedure. You’re carrying out in microcosm what society requires in macrocosm––a means to an end, where the powerful recognize and give voice to the powerless.
[1] Erwin Chemerinsky, Substantive Due Process, Touro Law Review, Pgs. 1501-1502 (Vol. 15, 1999)
[2] Edward Gibbon, The Decline and Fall of the Roman Empire, Chapter IX, Pg. 89 (1990 University of Chicago)
