The Long Shadow of the Adversarial and Inquisitorial Categories
Forthcoming in Oxford Handbook of Criminal Law, Markus D. Dubber & Tatjana Höernle eds., Oxford University Press, 2014
47 Pages Posted: 29 Nov 2013 Last revised: 29 Aug 2014
Date Written: November 27, 2013
This chapter maintains that the adversarial and inquisitorial categories have been more central to comparative criminal procedure than it has been previously acknowledged because they have contributed to constitute it as a transnational field by reflecting and restricting its main theoretical trends and thematic interests. The chapter identifyies the main theoretical traditions of this field by mapping commentators’ and courts’ uses of the adversarial-inquisitorial distinction, and shows that even the main alternative comparative criminal procedure approaches are operating within these same theoretical traditions. The chapter suggests that the adversarial-inquisitorial dichotomy has also contributed to limit the type of themes that the field has covered. Finally, the chapter sketches a number of ways in which this field may transcend the long theoretical and thematic 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.
Keywords: adversarial, inquisitorial, adversary system, inquisitorial system, criminal procedure, comparative criminal procedure, comparative law, comparative models, judicial reform
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