On the Inquisitorial Spectrum : The Story of Comparative Criminal Procedure
This work, On the Inquisitorial Spectrum: The Story of Comparative Criminal Procedure, stands at the intersection of comparative law, legal history, and criminal procedure. It goes beyond merely comparing procedural similarities and differences between legal systems, by proceeding to identify those phenomena and examining them through the broader interdisciplinary lenses of history, ideas and overall tradition and culture. Through an in-depth investigation of the historical and cultural environments of multiple legal traditions, this work aims to achieve three objectives. First, and most significantly, it proposes a new scholarly paradigm which rejects the traditional binary distinction – so prevalent in traditional scholarly analysis – between the “adversarial” model of the common law tradition and the “inquisitorial” model of the continental law tradition. The findings of this work assert – in stark contrast to the traditional model – that the world’s legal traditions, in the area of criminal procedure, are all inquisitional at their core; differences among them are due to divergent locations on the inquisitorial spectrum. This proposed paradigm proposes that legal models of criminal justice (at least surveyed in this work) are merely manifestations or variations of the traditional inquisitorial system. Thus, while the criminal justice system is more decentralized, the roles of the participants vary (for example, the judge is merely reactive, not an active inquisitor) and individual rights are seen as better protected, the “adversarial” model is only an extremely decentralized version of an inquisition. In other words, the “adversarial model” of criminal justice from which much of American exceptionalism stems from, remains a criminal justice model of “parental” or “paternalistic” control, albeit one where the state – operating in a much more laissez-faire fashion – demands that the participants largely resolve disputes amongst themselves on (fictitious) equal terms, with less formal and overt oversight by the state. Second, a common claim – stridently proclaimed by “the oracle of the common law,” Sir Edward Coke – has been that the common law has existed since time immemorial, in essentially permanent, and unchangeable, form. Importantly, it claims that the common law was unaffected by other cultural and legal traditions. This claim of “legal isolationism” – readily embraced in American legal history and a further reason for American exceptionalism – has been buttressed by the phenomenon of “chronological isolationism,” which is widespread today. This work shows that despite Coke’s protestation, no pure legal tradition exists, particularly in the realm of criminal procedure. Third, this work helps the reader appreciate how certain procedural rights, taken for granted today, were developed around the world in multiple legal traditions. More significantly, this work shows why procedure is of the utmost importance. This is not to deny the importance of substantive principles, particularly in criminal law. Rather, this work shows that how substantive law is applied (referred to as “procedural justice”) provides greater validity to the criminal justice system, which ultimately endows the state itself with its very foundational legitimacy. Readers (both academics and practitioners) will better understand the historical development of how and why procedural rights arose, their significance in our contemporary society, and will be better-equipped to thrive in a progressively globalizing world, as criminal procedure becomes increasingly international and comparative.
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