Strength, Weakness or Both? On the Endurance of the Adversarial-Inquisitorial Systems in Comparative Criminal Procedure

Abstract

This epilogue, written for a handbook on comparative criminal procedure, makes a general reflection on this field of research, inquiry and policy-making by concentrating on the opposition between adversarial and inquisitorial systems in particular and between civil law and common law more generally.

Contrary to claims that comparative criminal procedure is a new field, this paper argues that contemporary comparative criminal procedure is an heir of the classical adversarial-inquisitorial and common law-civil law tradition that have been at the center of this field for a very long time. This paper also maintains that the distinctions between adversarial and inquisitorial systems and common and civil law still provide important insights for analysis of the criminal process from a comparative angle.

Finally, the paper argues that despite the continued utility of these distinctions, the centrality of these categories also has had negative effects on the comparative analysis of the criminal process. The first of these negative effects is blinding. The centrality of the adversarial-inquisitorial distinction has made aspects of or perspectives on the criminal process invisible to comparative criminal procedure scholars (and judges and policy-makers). The second of these effects is distracting. Even when comparative criminal procedure scholars have been aware of unexplored issues around the criminal process, the centrality of the adversarial-inquisitorial categories has led scholars (and judges and policy-makers) to concentrate on certain topics, perspectives and methodologies to the detriment of others. The third of these effects is blurring. The centrality of these categories has, in some cases, impoverished the analysis by comparative criminal procedure scholars (and judges and policy-makers). The paper uses examples to illustrate these effects.

Keywords: Comparative Criminal Procedure, Adversarial System, Inquisitorial System