ABSTRACT
This chapter discusses three possible explanations of the normative value of the principle of due process in criminal proceedings. The first, instrumental explanation focuses on the epistemic value of due process. The second, expressive explanation claims that due process derives its value from its expressive role in publicly acknowledging the normative status of the participants. While acknowledging that both the epistemic and expressive explanations highlight important normative dimensions of due process, the chapter argues that neither explanation can explain its inherent value. The preferred alternative explanation (interactive justice), locates this value in the structural properties or ‘constitutive rules’ of the process, which establish what participants in the process can claim against and owe to each other. The chapter argues that the constitutive rules of due process confer a special dignitary status on participants, the status of right holders and claim makers. It concludes that due process as an instantiation of procedural justice thus does not simply express, but rather bestows, normative status on participants.
