Wednesday, December 8, 2010
This chapter, contributed to Philosophical Foundations of Criminal Law, edited by Antony Duff and Stuart Green, forthcoming from Oxford in early 2011, takes up what it claims to be “the hardest problem” in criminal justice scholarship: the relationship between the substantive rules of primary conduct and secondary rules of official response to suspected violations of the primary rules. The chapter distinguishes three possible approaches to the relationship. The first is rationalism, the view that procedure’s mission is to find as accurately as resources permit the historical facts and faithfully to apply the legislature’s directives to the facts so found. The second is pluralism, the view that truth in adjudication is only one value among many deserving pragmatic consideration in the design of procedure. The third is reductionism, the view that substance and procedure are exchangeable inputs in a system that authorizes so many possible outcomes that outcomes in practice are determined by official discretion.
The chapter then suggests that rationalism and pluralism are largely compatible, because the popular departures from the principle of material truth follow from resources constraints, the negative dimension of the legality principle, or advance very important competing goals while detracting only modestly from the principle of material truth. Support for this compatibility thesis is found in comparative criminal procedure. The distinct if very gradual convergence of the inquisitorial and adversarial systems in practice suggests the general compatibility of rationalism and pluralism in theory.
Reductionism poses a difficult challenge to both rationalists and pluralists. As a descriptive matter reductionism captures important empirical truths. As a normative matter, reductionism offends core principles of liberal political theory: transparency, accountability, and the rule of law. Reductionism can itself take a normative turn only by resorting to balance-of-advantage arguments that depend on baseline judgments about the acceptability of prevailing outcomes. Since these baselines can be set only by parasitic appropriation of the substance-procedure distinction, reductionism is claimed to be an empirically plausible, but normatively empty, arrangement of the relationship between substance and procedure. The hardest problem calls for further work, and some possible directions for that work are suggested.