Thursday, December 5, 2013
Maximo Langer (University of California, Los Angeles (UCLA) - School of Law) has posted The Long Shadow of the Adversarial and Inquisitorial Categories (Forthcoming in Handbook on Criminal Law, Markus D. Dubber & Tatjana Höernle eds., Oxford University Press, 2014) on SSRN. Here is the abstract:
This chapter argues that the influence and centrality of the categories “adversarial” and “inquisitorial” in comparative criminal procedure run even deeper that it has been acknowledged because the categories have reflected and contributed to creating the main theoretical trends and the main thematic interests of this field. This chapter maintains that it is possible to identify the main theoretical traditions that comparative criminal procedure has engaged with by mapping commentators’ and courts’ uses of the adversarial and inquisitorial distinction. This mapping reveals five main uses of these categories as: 1) descriptive ideal-types; 2) historical or sociological systems present in actual criminal procedures; 3) opposing interests or values that co-exist in any criminal process; 4) functions of the criminal process; and 5) normative models. After doing this mapping, the chapter argues that even the main comparative criminal procedure alternative approaches to the adversarial-inquisitorial opposition are operating within these same theoretical traditions.
The chapter also suggests that the adversarial-inquisitorial dichotomy has also contributed to limit the type of themes or issues that comparative criminal procedure studies have covered such as their focus on the criminal process of the developed West, their interest in the domestic but not in the transnational prosecution of crime, their institutional and role approach to the criminal process, and their interest in only a subset of criminal justice institutions and actors.
Finally, the chapter sketches a number of ways in which comparative criminal procedure may transcend the long theoretical shadow of the adversarial and inquisitorial categories and thus expand the type of positive and normative insights it can bring to our understanding of the criminal process.