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Comparative criminal justice goes global
Criminal procedure. Other related subjects: Jurisprudence. Legal systems
Vogler's World View
In inviting readers to share his ‘ world view' of criminal procedure, Richard Vogler has contributed another confident critical voice to the rising chorus of scholars expressing dissatisfactions, of varying degrees and descriptions, with the current state of comparative criminal justice studies. Bemoaning the ‘ poverty and parochialism of contemporary approaches to the understanding of criminal justice systems and the theoretical problems which may arise in the absence of any truly comparative or global perspective' , Vogler promptly confronts his colleagues with this pointed challenge:
Some of the responsibility for this state of affairs must be attributed to the historical failure of the academic community to provide any consistent guidance on criminal justice process. In contrast to the extensive and innovative work on human rights, criminal law and criminology, the field of criminal procedure is largely undeveloped and continues to be dominated by sterile and atheoretical debates over the supposed opposition between different ‘ systems' of justice. Without better and more sophisticated understanding of the working principles of criminal procedure, little *O.J.L.S. 370 progress can be made and national reform programmes will continue to be developed in isolation and without theoretical direction.
In more reflective mode, Vogler's Preface ventures the speculation that ‘ so little effort has been made to analyse the subject from a global point of view' owing to ‘ the impossibility of achieving anything approaching genuine expertise in more than one jurisdiction' . ‘ More probably' , he adds disarmingly, ‘ the very idea of writing about criminal justice around the world throughout the last millennium is simply over-ambitious!'.
Notwithstanding this meticulously prudent disclaimer, the historical and comparative investigations of criminal procedure undertaken in A World View of Criminal Justice are, in fact, impressively cosmopolitan, wide-ranging and inclusive. For that reason alone, it is a text that repays careful study. Vogler's principal difficulties lie, instead, in keeping a firm grip on the ambitions and development of his narrative. The task of elaborating convincing theoretical foundations, in particular, turns out to elude the author's secure grasp. Such instability at a foundational level complicates any overall assessment of the book's merits and inevitably qualifies the project's success in meeting its self-defined objectives.
The outstanding virtue of A World View of Criminal Justice is the scope and detail of the factual information it digests. Vogler's discussion of the relatively well-documented procedural systems of western Europe, occupying Part I of the volume, extends far beyond the standard treatments to be found in comparative law textbooks or policy-orientated publications with a predominantly reformist agenda. The roots of the modern French and German systems are traced back to their medieval origins, and the evolution of ‘ The European Inquisitorial Tradition' is painstakingly charted via the Imperial Carolina (1532) and the Code Louis (1670) to its apotheosis in Napoleon's monumental Code d'Instruction Criminelle of 1808. Vogler observes:
Despite limited attempts to introduce more adversariality in 1897 and again in 1993-2000, the main architecture of the CIC continues in place in France, and in the *O.J.L.S. 371 substantial portion of the globe where versions of it have been adopted and retained. It is impossible to overstate the importance of the CIC , which has provided the predominant model for criminal justice reform around the globe for the past two centuries. Having described the spread of Napoleon's Code throughout western Europe and Russia during the 19th century, Vogler next turns his attention to topics that feature less prominently in comparative law's standard canon. Here we learn of the abuse of inquisitorial procedure by the totalitarian regimes of Hitler and Stalin, and also of its reception and modification by Chinese Maoists and the development of a uniquely hybrid ‘ theocratic inquisitoriality' by Islamic jurists, clerics and statesmen, which today is simultaneously ‘ the most dynamic and rapidly expanding form of procedure in the modern world' and ‘ a powerful police and judicial bureaucracy with little concern for human rights'.
Part II of A World View of Criminal Justice examines ‘ The Adversarial Tradition' of criminal procedure, starting with its Anglophone historical origins in England and America in the 18th and 19th centuries. (Before then, Vogler explains, ‘ [t]he predicament of a passive and undefended accused faced with an all powerful judicial inquisitor differed little from that of his or her continental counterpart.') From these tentative beginnings emerged in time the mature, rights-respecting adversarial legal framework crystallized in the 1960s jurisprudence of Chief Justice Earl Warren's US Supreme Court and the British Police and Criminal Evidence Act (PACE) 1984.
Aspects of adversarial criminal procedure have also frequently been imported into legal jurisdictions with a predominantly inquisitorial heritage, first by the post-1789 French revolutionaries and subsequently in Germany and Spain, most comprehensively in the reformed Italian Criminal Procedure Code of 1988, and most recently across most of Latin America and throughout the emerging new democracies of central and eastern Europe. There is even growing interest in adversarial criminal process in China, where ‘ the conspicuous absence of important procedural rights … has excited *O.J.L.S. 372 considerable academic criticism'. Vogler makes no effort to conceal his admiration for adversarialism:
In short, the common law trial became the crucible in which, for the first time in human history, a system was created for the practical and universal application of the doctrine of human rights.
Part III of Vogler's World View takes in ‘ The Popular Justice Tradition' , which is comprised of two separate strands. ‘ Unmediated popular justice' is explored in a chapter surveying colonial ‘ native courts' , gacaca proceedings in post-genocide Rwanda, the Chinese ‘ Mass-Line' movement, popular tribunals in Cuba in the 1960s and in Mozambique in the 1970s, and the South African township courts that emerged at the fag-end of the Apartheid regime in the late 1980s.
The second strand of popular participation in criminal adjudication, characterized as ‘ mediated popular justice' , is exemplified by the familiar lay jury of citizen-peers, to which three whole chapters are devoted. The first traces the historical origins and development of the English jury pursuant to the Catholic church's decision to withdraw its support for trial by ordeal at the fourth Lateran Council in 1215. This is followed by a chapter recounting the chequered history of the jury's partial dissemination throughout the British Empire and its former colonial possessions. A third chapter on ‘ The European Jury' explains how the fortunes of the Anglophone lay jury have waxed and waned in continental European jurisdictions over the course of the last two centuries, frequently in competition with ‘ mixed panels' comprising professional judges and lay jurors in various combinations. This history culminates in recent revivalist movements in Spain (where jury trial has been introduced and *O.J.L.S. 373 then abolished ‘ no less than seven times since 1820' ) and post-Soviet Russia.
Modern attitudes towards jury trial, Vogler persuasively insists, have been shaped by markedly different experiences of juries in different legal traditions. This is an important corrective to the tendency of Anglophone scholars to adopt an almost instinctively benign view of juries. German experiences of lay adjudication in the 20th century, for example, are a far cry from the comforting notion of entrusting one's fate to the judgment of sensible and sympathetic neighbours, and this may go some way to explaining why trial by jury is widely regarded with suspicion in Germany today. Moreover, the social and political significance of jury trial cannot be reduced to technical problems of fact-finding in criminal proceedings. In Vogler's penetrating synthesis:
The English jury was transformed from a largely irrelevant procedural archaism … to the very motor of global political change, with a significance which extended far beyond the courtroom. It came to represent, as almost no other institution did, the political aspirations of an entire economic class, throughout the world.
Despite its breathless pace and evident superficiality, this overview should suffice, at least, to give an indication of the astonishing breadth of Vogler's narrative and the rich texture of its jurisprudential detail. 3. Normative or Descriptive?
Generalization is both necessary and inevitable in wide-ranging comparative studies. It goes without saying that, in order to achieve such vast coverage in relatively short compass, Vogler is often obliged to paint in broad brush-strokes *O.J.L.S. 374 and to flatten out countless wrinkles and nuances. When, for example, Vogler writes that ‘ empirical research demonstrates that, generally, PACE has performed as hoped' researchers who know that the impact of PACE has been uneven and remains, in significant respects, hotly debated, must allow a little authorial latitude. To criticize Vogler for failing to undertake a more systematic survey of the extensive evaluation research on PACE would be tantamount to rejecting his entire project. Even a book that was twice or three times the length of this one could barely afford to be comprehensive on doctrinal particulars. Provided that generalizations are illuminating and substantiated, and therefore worth making, those in search of encyclopaedic treatments of particular laws or their impact can reasonably be redirected elsewhere.
More serious criticisms of A World View of Criminal Justice begin with its title. On closer examination, it is apparent that the book is not directly concerned with criminal justice , but rather with criminal procedure, criminal process or criminal justice systems. This is not merely a pedantic terminological quibble. Most of the text is given over to historical or comparative description, but in a short conclusion and somewhat longer introduction Vogler advances explicitly normative legal and moral claims. His principal contention is that every legitimate system of criminal procedure must reconcile aspects of the inquisitorial, adversarial and popular justice traditions (‘ the three great trial methodologies' ) with its own distinctive legal, cultural and political heritage:
The three great trial methodologies discussed here all represent entirely legitimate interests in criminal justice; those of the state in the repression of crime; those of the individuals most involved and those of the community in expressing its own collective interests. To exclude or to disable any of these interests is to produce a fatally unbalanced trial process.
Vogler grounds his argument in historical experience, whilst simultaneously insisting that his analysis substantiates an idealized conception of criminal procedure--a blend of the descriptive and the normative in some ways reminiscent of Ronald Dworkin's influential theory of adjudication:
Every system, at different historical epochs, has experienced the gravitational pull of each of the three trial modes and has responded accordingly. Every system, in its *O.J.L.S. 375 current structure and practice, crystallises their relative influence to a greater or lesser extent. The central argument of this book is that whatever mode of procedure is operated, it should not seek to exclude, significantly limit or disable the participation of any of these three legitimate interests in criminal justice.
A threshold response to these assertions is that, without further clarification of the values that each aspect of trial procedure is supposed to instantiate and promote, no amount of historical or comparative exegesis can tell us how criminal procedure should be designed. Purely descriptive analysis reveals only how criminal procedure has in fact been organized in the past or in other jurisdictions. It might tell us what the practical implications of certain design features might be, their relative strengths and weaknesses, and other empirically-derived information. These could be vital data for would-be law reformers with an eye for comparative inspiration, but empirical description, or even functional diagnosis of observed practices, do not take us very far in specifying the normative ideals that should merit our allegiance.
Elaborating a principled set of values for criminal procedure is indeed an urgent--and relatively neglected--task for criminal justice scholarship. I would regard this undertaking as an applied chapter of moral and political philosophy, to which comparative law scholars could make telling contributions unlikely to be forthcoming from other quarters. Yet this philosophical endeavour is conspicuously absent from Vogler's project. He proceeds, instead, through fleeting hints and suggestions scattered throughout a predominantly descriptive narrative. The reader is clearly meant to understand that inquisitorial procedure is dangerously authoritarian and bloodthirsty. Having been hammered out on the flesh of wretches in the torture chambers of the ancien régime and later systematically codified by Napoleon (not exactly one of history's good guys), its ‘ lethal combination of bureaucracy, science and terror' has been congenial to despots and genocidal maniacs throughout the course of the 20th century. Today, Vogler informs us, inquisitorialism remains an obstacle to the implementation of human rights in criminal proceedings in Russia, China and throughout the Islamic world. Adversarial procedure, on the other hand, is clearly to be admired as an agent of liberty and human rights. But there is a complicating twist in the tale here. Set against these background assumptions, it is puzzling to encounter growing criticism of adversarial styles of criminal trial in its common law heartlands, partly engendered by high profile miscarriages of justice:
This body of work, although by no means representing a dominant view in either the UK or the US, is clearly evidence of a crisis of confidence in adversarial method in its *O.J.L.S. 376 homelands, at a time when it is expanding across the world as never before in its history.
And as for popular justice (including its quintessential British manifestation in trial by lay jury)?
[E]ndogenous forms of justice exemplify both the best and the worst features of any given community. Popular tribunals may flourish as participatory democracy at its most organic or they may represent the patriarchy, the racism or the violence of the people who operate them…. [W]here popular justice is dominant and unchecked, it is impossible to avoid the populist, class or racial abuse of process inherent in the Blackstonian jury, the gangster justice of the South African township or the vindictive cruelties of vigilante movements and lynch mobs.
The jury is apparently still out on the historical record of popular justice!
By this point in the narrative, moreover, excessive generalization threatens to belie the author's comparative sensibilities. Vogler, for all his mastery of European and world legal history, seems to betray a predictable set of Anglophone preferences in his evaluation of procedural forms. Readers will draw their own conclusions. But without having taken the time to substantiate his adversarial preferences through detailed case-studies or more systematic analysis of pertinent empirical research, Vogler may be suspected of merely recycling common lawyers' stereotypes: which my continentally trained colleagues and students never tire of challenging in my own comparative observations whenever I slip into stereotypical thinking, as I frequently do. Everybody inevitably views the world from the place where they stand, both literally and in terms of their figurative ‘ world view' , one's weltanschauung in the language of German sociologists. Still, this inescapable methodological constraint should not preclude meaningful comparative conversations about criminal procedure. How, then, might Vogler reply to the Dutch, who have no tradition of lay involvement in criminal adjudication, or to the French who insist that their procedural system is ‘ mixed' rather than ‘ inquisitorial' , or to Italians who generally think that guilty pleas are a denial of basic due process and contrary to the presumption of innocence rather than, as Vogler would have it, ‘ empowering mechanisms' ? He will, at the very least, need to say a great deal more than he does in A World View of Criminal Justice to defend his *O.J.L.S. 377 thesis against accusations of its propagating unsubstantiated and, as some will think, chauvinistic assumptions.
A second diagnostic clue to the shaky theoretical foundations of Vogler's thesis lies in his treatment of Herbert Packer's seminal contribution to criminal process scholarship. Packer's theoretically informed speculations on criminal procedure bequeathed to future generations two of the most memorable and frequently invoked metaphors in English-language writing on criminal justice. I refer, of course, to the ‘ crime control' and ‘ due process' models, which Packer defined as follows:
[T]he Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process. The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom….The model, in order to operate successfully, must produce a high rate of apprehension and conviction and must do so in a context where the magnitudes being dealt with are very large, and the resources for dealing with them are very limited. There must then be a premium on speed and finality. Speed, in turn, depends on informality and on uniformity; finality depends on minimizing occasions for challenge. The process must not be cluttered with ceremonious rituals that do not advance the progress of a case….The image that comes to mind is an assembly line or a conveyor belt down which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product, or, to exchange the metaphor for the reality, a closed file.
If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of its successive stages is designed to present formidable impediments to carrying the accused any further along in the process … Its ideology is composed of a complex of ideas, some of them based on judgments about the efficacy of crime control devices. The ideology of due process is far more deeply impressed on the formal structure of the law than is the ideology of crime control … Just as the Crime Control Model is more optimistic about the unlikelihood of error in a significant number of cases, it is also more lenient in establishing a tolerable level of error. The Due Process Model insists on the prevention and elimination of mistakes to the extent possible; the Crime Control Model accepts the possibility of mistakes up to the level at which they interfere with the goal of repressing crime….The Due Process Model resembles a factory that has to devote a substantial part of its input to quality control. This necessarily reduces quantitative output.
*O.J.L.S. 378 These models of ‘ conveyor belt' crime control and ‘ obstacle course' due process have been extraordinarily influential for theorists, researchers and textbook-writers commenting on Anglo-American criminal process. Today, Packer's models comprise part of students' and scholars' basic conceptual furniture--so much so, that many apparently feel free to appropriate the models to their own purposes, without much regard for their creator's intentions. Packer's reward for his ingenuity is thus to become a kind of Dr Frankenstein of criminal justice theory: a victim of his own fantastic creation, which (just like Mary Shelley's original) was turned into a monster by other people's lack of comprehension and insensitive handling. The present work is a case in point. Having briefly described ‘ [t]he two alternative models' , Vogler detects ‘ a conspicuous and immediately apparent flaw in Packer's formulation' :
Put simply, crime control is patently an objective whereas due process is a method. In no sense can they be considered as polar opposites or ‘ antinomies' and to do so is to give unwarranted priority to the model which promises results over the model which merely describes a procedure. So far from being value-neutral, the terms of the argument are loaded from the outset.
However, whilst some of these charges might conceivably be redeemed against any number of his expositors' monstrous interpretations, Packer himself is ‘ not guilty' on all counts.
Packer was commendably explicit about the underlying rationale for devising his ‘ models' of criminal procedure. They were intended:
to let us perceive the normative antinomy that runs deep in the life of the criminal law. These models may not be labelled Good and Bad … Rather, they represent an attempt to abstract two separate value systems that compete for attention in the operation of the criminal process. Neither is presented as either corresponding to reality or as representing what the criminal process ought to be. The two models merely afford a convenient way to talk about the operation of a process whose day-to-day functioning involves a constant series of minute adjustments between the competing demands of two value systems and whose normative future likewise involves a series of resolutions, of greater or lesser magnitude, of the tensions between mutually exclusive claims.
So, contrary to the erroneous gloss that is often placed on his conceptual schema, Packer was trying to model competing values within the same procedural system, rather than two opposed models of procedure. The two models are explicitly premissed on shared liberal assumptions--‘ common ground. There is a good deal of it, even on the narrowest view' --including *O.J.L.S. 379 prospective criminalization (nullum crimen, nulla poena sine lege ), routine enforcement, limited government and adversarial legal procedures. Packer consequently does not characterize ‘ crime control' and ‘ due process' as ‘ polar opposites' , and the antinomy that interests him is explicitly normative rather than conceptual, much less ‘ value-neutral' . Ideal(ized) criminal procedures must be located somewhere ‘ between the competing demands of two value systems' , an amalgam of crime control and due process, as opposed to outright victory for either contender. Having concluded--bizarrely, in my estimation--that ‘ Packer is concerned with a functional analysis of criminal procedure' ,even to the point that ‘ systems theory has found its most enduring expression in the work of Herbert Packer' , it is not surprising that Vogler rejects what he calls ‘ the Packer mode of “ value-neutral” systems-analysis for evaluating criminal justice process'. Indeed, it is difficult to understand how a thesis about competing values in criminal process could ever be meaningfully ‘ value-neutral' , without reverting to sociological reportage or collapsing into fatal self-contradiction.
In his fully elaborated theory of the criminal sanction, Packer explicitly linked his analysis of criminal process to a ‘ mixed' account of the rationale for judicial punishment. Similar to his British contemporary, Herbert Hart, Packer posited a consequentialist (‘ utilitarian' ) overriding objective subject to deontological, ‘ retributive' constraints, including the moral culpability of the accused and the proportionality of punishment (which Hart usefully summarized as ‘ retribution in distribution' ). That such a volatile mixture of philosophical commitments is theoretically unstable, and ultimately unsustainable, is beside the point for present purposes. What matters here is that Vogler's misrepresentation of Packer's explicitly normative objectives has serious implications for Vogler's own thesis. For in thus confounding the ‘ is' and the ‘ ought' of criminal process, Vogler is unable to replicate, much less to capitalize on, Packer's firm distinction between normative ideals and empirical realities. The consequence is that a book purporting to offer a normatively inspired world view of criminal justice, maintaining that criminal procedure ‘ should not seek to exclude, significantly limit or disable' any of the three sanctified procedural methodologies, in reality contains essentially descriptive exegesis. It might more aptly have been titled A World History of Criminal Procedure Systems.
Concepts And Values
An essential first step for Vogler in responding to these methodological criticisms would be to define his primary concepts of ‘ inquisitorial' , ‘ adversarial' and ‘ popular' justice procedures with greater precision. As it stands, Vogler's brief sketches of each concept are too loosely specified to bear the weight of his principal thesis. Since this is hardly the place to attempt a systematic elaboration of procedural models, I will confine myself to just one illustration of the need for more fastidious conceptual definition.
Vogler specifies that ‘ inquisitorial methodology' is characterized by ‘ four essential features' , the third of which is ‘ the use of different forms of intolerable pressure against defendants in order to achieve co-operation'. One of the three ‘ essential structural elements of the adversarial method' , in contrast, is that ‘ [t]he state must be prevented by law from using its power to apply psychological pressure to distort the free testimony of the individual.' By this measure, however, adversarial method has probably never been implemented in any criminal justice system and is never likely to be. Today, every police force in every jurisdiction in the world uses lawful psychological pressure to extract confessions from suspects during interrogation, and this undoubtedly frequently produces ‘ testimony' (or evidence presented to the court in the form of a confession) which would not have been forthcoming in the absence of such pressures. Conversely, advocates and apologists for what common lawyers would call ‘ inquisitorial' systems of criminal procedure would deny that their legal systems adopt Vogler's ‘ inquisitorial method' , because they would maintain--in many instances, quite plausibly--that the accused's co-operation is not secured through ‘ intolerable' pressure.
*O.J.L.S. 381 The ease with which these definitions can be manipulated exposes a perilous vacuum at the heart of Vogler's account. If he cannot specify with sufficient particularity and in a way that preserves the practical salience of his analysis what should qualify as an example of ‘ inquisitorial' or ‘ adversarial' or ‘ popular' justice procedures, Vogler's principal contention that every legal system must integrate elements drawn from all three procedural forms cannot really be applied, implemented or tested against extant legal processes or institutions. Yet an ostensibly evaluative standard of procedural design that cannot be applied, implemented or tested in practice is, from a methodological or policy perspective, vacuous to the point of meaninglessness. Each ‘ procedural tradition' becomes a perpetually moving target, a protean shape-shifter impervious to meaningful analysis.
Conceptual clarification is also an indispensable precursor to meaningful normative discussion and debate. I strongly suspect, however, that no amount of conceptual fine-tuning could rescue Vogler's thesis, which seems to me to be caught on the horns of a dilemma: it is either truistic and therefore mostly uninteresting, or false and positively misleading.
The three ‘ legitimate interests in criminal justice' identified by Vogler, which supposedly--in some vague, general and largely unelaborated way--map onto the three ‘ procedural methodologies' he specifies, are: (i) the interest of the state in the repression of crime; (ii) the interests of ‘ those individuals most involved' ; and (iii) ‘ the community in expressing its own collective interests'. Now, if all that this implies is that a legitimate criminal justice system must attempt to address the problem of criminal victimization in a way which takes appropriate account of the interests of the victim, the offender and society at large, it is hardly a revolutionary proposition. Indeed, I cannot see how any realistically plausible criminal justice process would fail to pass the test, unless the nature of the relevant interests and their relative priority are specified in much greater detail. As it stands, (i) and (iii) substantially overlap, since ‘ the community' as well as ‘ the state' has a strong interest in crime control, and any state with a serious stake in political legitimacy will need to ensure that mechanisms are in place to facilitate democratic accountability of its powers to criminalize and punish. Hitler, Stalin, Mao and the entire rogues' gallery of 20th century dictators at least claimed to be acting in the interests of ‘ the people' (however perversely defined), even when they were in reality pursuing their own psychopathic agendas. Such is the universal (post-Enlightenment) rhetorical appeal of generalizations invoking state, citizen and community.
Vogler consequently needs to be a lot more specific in spelling out the nature of the interests which, on his view, are implicated in criminal proceedings. In theorizing criminal process, as elsewhere, the devil is in the procedural details. Alas, renewed efforts in that direction are liable to impale Vogler on the second *O.J.L.S. 382 horn of his dilemma, by demonstrating more clearly than ever the fallacy of predicating three supposedly indispensable ‘ procedural methodologies' as an allpurpose ideal. The limitations of this self-constraining theoretical straitjacket are further betrayed when Vogler advances specific claims touching on the broader significance of criminal procedure for institutions of government. The synergies linking distinctive styles of government with particular models of criminal procedure are said to have far-reaching moral, political and social ramifications. But the analysis is question-begging and ultimately unpersuasive.
Causes and Contingency
In the final chapter of A World View of Criminal Justice , Vogler asserts that ‘ [t]he first principle' of comparative procedural analysis should be ‘ the abandonment of the impractical dream of discovering the universal laws of motion of criminal procedure through the application of scientific method' . Notwithstanding this explicit disavowal of structural determinism, his narrative seems at times to exaggerate the causal potency and political significance of particular design preferences for legal institutions and procedures.
At the outset, Vogler's tantalizingly amorphous procedural triad, comprising (as we have seen) state, participants and community, is introduced as encapsulating ‘ the specific triangulation of forces which provides the historical necessity for criminal justice and which is crystallised in the [legal] procedure' . Within this seemingly geometrically predictable universe, the reader encounters inquisitorial procedure as a dependable formula for the Gulag and the gas chamber. Stalin's show trials and purges, Vogler insists, were ‘ the logical terminus of all the repressive procedural tendencies inherent within the European inquisitorial tradition'. Likewise, ‘ the routinisation and bureaucratic decision-making within the fascist concept of Inquisitionprozess reached its logical and horrifying terminus' in Hitler's ‘ Final Solution' for European Jews.
*O.J.L.S. 383 These are not historical associations that defenders of continental legal procedure would relish, or regard as representative. And one might be tempted to dismiss the emphatic character of the asserted causal linkages as mere rhetorical over-exuberance, were it not for the fact that Vogler repeatedly expresses himself in deterministic language:
When inquisitorial methodology is dominant and unchecked, the brutalities of the Code Louis and its 20th-century progeny, Soviet and Nazi inquisition-process, are the inevitable outcome.
Yet, at the same time, the ease with which the Nazis were able to hijack the Weimar Republic's liberal constitutional framework and infuse it with the perverted values of the racial, militaristic state is ascribed by Vogler to ‘ the flexibility of Inquisitionsprozess '. So the thesis appears to be that inquisitorial procedure ‘ inevitably' leads to despotism because it is so flexible. But quite apart from the fact that extensive official discretion is normally associated with adversarial rather than inquisitorial legal procedure, if Inquisitionsprozess is so flexible, how can its broader political implications be so predictable? If procedural structures and the official practices they support are relatively plastic, malleable and open-ended, would one not expect criminal procedure to reflect the tenor of the prevailing political ideology and culture, rather than the other way around? In this particular context, Marx's insistence that law is merely a superstructural reflection of the ‘ material base' of political economy seems closer to the mark than Vogler's emphasis on the causal primacy of criminal procedures.
Nor is this the only instance of apparent self-contradiction in Vogler's sweeping narrative. ‘ Dominant and unchecked' popular justice (which, incidentally, sounds suspiciously oxymoronic, or possibly a euphemism for mob rule) is later said to make partisan abuse ‘ impossible to avoid'. However, it is unclear how the specific illustrations of direct and mediated popular justice presented in A World View of Criminal Justice all converge on this conclusion. On the contrary, it is striking, on Vogler's own illuminating account, how varied the experience of jury trial has been in different jurisdictions, each with its own distinctive political, cultural and jurisprudential heritage complicating the reception of this cipher of ‘ mediated popular justice' at the local level. Likewise, it seems difficult to infer any reliably predictive history lessons from the variety *O.J.L.S. 384 of short-lived experiments in direct popular justice canvassed by Vogler-- except, perhaps, the inability of any procedural design to inoculate a society against the ravages of megalomaniac dictators, bloody civil war or genocidal social disintegration.
The language of ostensibly iron causal laws and their inevitable consequences invites unflattering comparison with the phoney determinism of ‘ scientific' Marxism. Vogler is more persuasive when he permits himself greater circumspection. At one point, for example, Vogler speculates that:
it is not unreasonable to link the birth of adversariality with the more profound shifts in contemporary understanding of the world and the political economy which followed from the Glorious Revolution of 1688….Bearing in mind the subsequent spread of adversariality around the globe, it is difficult to escape the conclusion that it bore some deeper relationship to the social, political and industrial changes then underway in England. It seems too much of a coincidence that the first industrial nation should also be the first to develop this mode of trial and at the very same time.
It would require painstaking empirical research to establish firm connections between the growth of British capitalism and the development of adversarial legal procedures, a task plainly beyond the scope of A World View of Criminal Justice. But these are nonetheless illuminating reflections, suggesting an hypothesis (or set of hypotheses) which future research might finesse into valuable historical insights with contemporary resonance. Crucially, Vogler's speculations on the bourgeois origins of adversarialism by no means preclude-- indeed, they practically invite--further empirical and comparative investigation, not least to explain the uneven impact and distinctive adaptations of adversarialism's historical legacy still detectable today in contemporary legal cultures.
It is a plausible, and politically significant, contention that autocratic regimes find it relatively straightforward to manipulate or corrupt a form of criminal procedure dominated by state functionaries; albeit that this conclusion is largely preordained if one has previously stipulated , as Vogler does, that ‘ the first and most essential characteristic of inquisitorial method is that it is authoritarian'. However, Vogler does not succeed in demonstrating that the absence of direct popular participation necessarily produces a ‘ fatally unbalanced trial process', *O.J.L.S. 385 any more than he proves that inquisitorial criminal procedure made 20th century European totalitarianism ‘ inevitable' .
The implication that procedural traditions might improve themselves by learning from comparative experience, and seeking to emulate international ‘ best practice' , remains untouched by this theoretical critique. There is much to be said for the introduction of (carefully tailored) adversarial procedures into inquisitorial systems of criminal adjudication, and the European Court of Human Rights, in conjunction with local and international pressures for reform, are working to make convergence in European criminal procedures a reality to some extent. Conversely, the importation of inquisitorial features into an adversarial system should always be scrutinized with a critical eye (like any other major procedural innovation). But the suggestion of any necessary , conceptual, linkage between contemporary models of criminal procedure and their moral and political qualities strikes a discordant note, disconcertingly reminiscent of the animals on Orwell's farm bleating their doctrinaire mantra, ‘ four legs good, two legs bad' . What is more, the argument's palpably shallow theoretical foundations undercut Vogler's admirably global aspirations for comparative criminal justice.
Global and International
As a necessary corrective to the perceived theoretical ‘ poverty and parochialism' of current criminal justice scholarship, Vogler advocates a ‘ truly comparative or global perspective' to supersede the ‘ unremittingly Eurocentric' preoccupations of existing research and commentary:
Criminal justice can no longer be seen as a purely local phenomenon. Its historical roots lie in the global communication of ideas and procedures in the great periods of imperial expansion and revolution. In the contemporary era of electronic communication, vastly increased international commerce and travel, our common interest in fair and efficient criminal procedure everywhere is all too apparent.
Vogler's commitment to a truly global perspective is clearly evident both in the breadth of his historical surveys of criminal procedure and in the diversity of his historical and contemporary examples of popular justice, to which reference has already been made. This emphatic commitment is also *O.J.L.S. 386 encapsulated in the important connection Vogler forges between comparative criminal procedure and the activities of international criminal courts, particularly the UN's ad hoc tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). International criminal proceedings are considered in a short concluding chapter, where Vogler makes a valiant attempt to push comparative criminal procedure scholarship beyond its conventional territorial boundaries. Unfortunately, the effort to engage with a topic as sprawling and unwieldy as international criminal justice is almost inevitably inconclusive and unsatisfactory when compressed into so few pages. On Vogler's account, the ad hoc tribunals have been disfigured by ‘ the progressive imposition of bureaucratic and authoritarian control mechanisms'. This backsliding is largely attributable to their hijack by judges from civilian jurisdictions with a preference for inquisitorial procedure, precipitating ‘ a significant “ drift” of the tribunal procedures away from the adversarial' :
Judging by the experience of the [Nuremberg] IMT and the ICTY and ICTR, a failure to establish sufficiently clear and detailed procedural norms at the outset is likely to ensure that the trial process will in practice be determined and modified by the participants themselves. In this case [referring specifically to the International Criminal Court], particularly in the context of the disengagement of the US, a further drift towards bureaucratic, inquisitorial procedures is inevitable….Moreover, because of the problems of finding an appropriate constituency in international trials, popular participation has been excluded entirely, thereby removing one important check upon bureaucratic control while at the same time harming the legitimacy of the institution as a whole ….
The ad hoc tribunals operate in a precarious political environment and face many stern practical challenges. Some criticism of their activities is entirely merited. Indeed, occasional mistakes will almost inevitably be made in the international community's pioneering attempts to call individuals (including former heads of state, government ministers and senior military and diplomatic figures) to account for the worst conceivable crimes: anybody demanding perfection is bound to be disappointed. Vogler's analysis is supported by unmistakable evidence of ‘ inquisitorial drift' in the ICTY's procedures over the 12 years of the Tribunal's operational existence, a trend also criticized by other informed observers. However, this institutional realignment does not *O.J.L.S. 387 necessarily vindicate Vogler's conclusion that ‘ the ICTY now has a very different procedural regime than that contemplated by its founders' , not least because the ICTY was deliberately entrusted to develop and adapt its own procedures in the light of judicial experience. Oversight and development of procedural rules and court practice by a rules committee staffed by serving judges is commonplace in the US, and has recently been introduced in England and Wales. To postpone detailed questions of criminal procedure for judicial determination as the need arises, and within the overall framework of the Tribunal's Statute, might well be regarded as a sensible way for the UN Security Council to proceed, particularly since the ICTY was striking out into uncharted territory. Does this flexible, evolutionary procedural structure really make inquisitorial drift ‘ inevitable' ? Seen through continental jurists' eyes, the continued prominence of oral witness testimony, formal equality between the prosecutor and defence attorneys, and the Tribunal's acceptance of guilty pleas might still be regarded as giving the ICTY's rules of procedure and evidence a predominantly adversarial flavour.
The idea of the ‘ appropriate constituency' for international criminal adjudication, for which the term ‘ international community' is merely a suggestive placeholder, is intimately related to the legitimacy of international criminal prosecutions, verdicts and punishments. Yet, it is hard to know what to make of Vogler's unelaborated lament for the absence of popular participation in international criminal trials. One reply might be that international criminal tribunals form a continuum with other judicial and extra-judicial mechanisms comprising what, ideally, should be an integrated international response to serious violations of international criminal law. In relation to the Rwandan genocide, for example, popular participation is extensively accommodated in gacaca proceedings (which Vogler previously *O.J.L.S. 388 summarized in his discussion of direct forms of popular participation) rather than at the ICTR. In terms of popular participation, as well as in other significant respects, these might be regarded as complementary processes in a ‘ blended' suite of institutional interventions. So far as international criminal trials are concerned, Vogler repeatedly mentions the fact that trial by jury has not been adopted. This is presented as a derogation from adversarial Anglo-American culture, and possibly even a diminution of the accused's fundamental rights. But even if these criticisms are well placed (and I am far from convinced that they are), where does this leave us? Much of the world regards trial by lay jury, as opposed to Continental-style mixed judicial panels on which professional judges and lay ‘ assessors' deliberate together to produce a fully reasoned verdict, as an idiosyncratic Anglo-American anachronism. For many of the national representatives and expert jurists who attend diplomatic conferences, an unreasoned (‘ unmotivated' ) verdict by untutored lay jurors is the very antithesis of what justice demands. Furthermore, even if we set aside this weighty ‘ political' objection, there are formidable practical obstacles to the use of lay juries in international criminal adjudication.
On a visit to The Hague some time ago, I observed a few sessions of a trial at the ICTY which is scheduled to be in court for about two years. This was a trial of (only) moderate length and complexity by the ICTY's standards. The witness who was testifying on the day of my visit spoke Spanish. Via simultaneous translation, he was examined in-chief in English and cross-examined in B/C/S (the language formerly known as Serbo-Croat), for the benefit of a French-speaking tribunal. This is not the type of procedural environment in which lay juries normally operate, even supposing the ready availability of impartial jurors (presumably ruling out all Bosnians, Serbs and Croats) with two years' free-time to spare. Within this procedural context jury trial in any recognizable form is effectively impossible. The pertinent question is whether the absence of lay jurors (Vogler's ‘ mediated popular justice' ) necessarily hobbles the whole enterprise of international criminal adjudication from the outset. Or might it be possible to devise alternative procedural mechanisms capable of generating legitimate verdicts without abandoning all principled aspirations for penal justice at the international level? Whilst the difficulty of successful institutionbuilding should not be underestimated, and setbacks must be anticipated along the way, Vogler's critical judgments and instinctive attachment to a *O.J.L.S. 389 particular common law model of adversarial procedure strike me as inordinately premature.
Conclusion: Another View of Comparative Criminal Justice
What can researchers, policy makers and practitioners learn from comparative studies of criminal justice? The concluding paragraph of A World View of Criminal Justice declares that â€˜ the purpose of this study is to stimulate debate about the history and the principles of criminal procedure in a global perspective and not to offer prescriptive solutions at the level of practice Preceding pages have bemoaned â€˜ the historical failure of the academic community to provide any consistent guidance on criminal justice processâ€™ and asserted ‘ the responsibility of the international community and the donor countries, without imposing any agenda for reform, to facilitate such international discussion and to promote a wider understanding of the basic modalities of adversarial justice'. Readers of the book, who might well sympathize with its programmatic agenda, are entitled to ask: what, in the end, has Vogler contributed to advancing the discussion? In his own words:
The central argument of this book is that, whilst the new international regimes of criminal justice are to be welcomed and whilst the underlying traditions of criminal justice are truly universal, it remains a matter for each nation to develop its own particular regime in accordance with local traditions and bearing in mind the guiding principles of procedure ….
These ‘ guiding principles' are none other than the ‘ three great trial methodologies' around which the book has been constructed: inquisitorialism, adversarialism and popular justice. Vogler proceeds to deduce the following ‘ principles' of procedural reform:
[R]eform without awareness of our collective history or of the experience of other nations may lead us back down exactly the same paths of oppressive, ineffectual or merely populist justice, which have disfigured our past….[T]wo principles, one negative and one positive, emerge from this discussion. The first is the rejection of universality and the second is the principle of respect for the constructive aspects of our procedural inheritance.
These ‘ principles' might more appropriately be characterized as broad methodological generalizations. The take-home message appears to be: do not over-generalize, be open to comparative perspectives, but do not underestimate the significance of cultural heritage for criminal procedure and its reform. This is *O.J.L.S. 390 undeniably wise advice, resting on a wealth of historical exegesis. Still, comparative law scholars intrigued, if not piqued, by Vogler's opening volleys against the theoretical impoverishment of their discipline will probably consider such wisdom a fairly meagre harvest to be reaped from almost 300 closely typed pages. Meanwhile, policy makers and legal practitioners will require a great deal more in the way of detailed elaboration before they would regard themselves as being furnished with anything remotely resembling concrete ‘ guidance on criminal justice process' , consistent or otherwise. Academic research and commentary are berated for their failure to provide practical guidance to procedural reformers, yet Vogler himself offers only vague generalizations, rhetorical postures and pessimistic causes for concern and regret.
For all that, A World View of Criminal Justice remains a treasure-trove of historical details, partially submerged subplots and incisive asides. Vogler's retort to John Langbein that ‘ the [parliamentary] debates in the 1820s and 1830s do provide a clear rationale' for adversarial criminal procedure is cogent legal historiography. His criticism of the tendency of continental jurists to imagine a fallacious equivalence between ‘ accusatorial' and ‘ adversarial' procedures is another very telling point, which I have not seen expressed quite so clearly before. Rather more might perhaps have been made of this ‘ accusatorial fallacy' in tracing the interweaving intellectual histories of European criminal procedures in the main body of the text. The broader political significance of criminal procedure reform is memorably encapsulated, if typically overstated, in Vogler's remark that ‘ the French Revolution was primarily a criminal procedure revolution and the symbolism of criminal justice played a central role in the upheaval'. Above all, by describing in detail how criminal procedure reform has always been a more or less global import-export business, Vogler gives an exemplary demonstration of the power of historical inquiry to challenge parochial or chauvinistic assumptions. Just as (to paraphrase Salman Rushdie) the English are a mongrel nation, with a fantastically diverse gene-pool and cultural tastes to match, English criminal procedure is the consolidated product of a cosmopolitan global heritage.
It is only when the critical spotlight shines directly on its theoretical foundations that Vogler's engaging narrative begins to wilt and buckle. A World View of Criminal Justice does not present a world view of ‘ criminal justice' , understood as a normative ideal, principally because its predominant idiom is empirical description. Empirical inquiry is not objectionable per se ; far from it. Good description is at a premium in comparative criminal justice scholarship, *O.J.L.S. 391 in which researchers typically have to contend with formidable linguistic, cultural, bibliographical and methodological obstacles just in order to identify relevant foreign law and practice as a basis for undertaking accurate comparison. The problem for Vogler's readers is that, at key junctures, his narrative abruptly shifts gear from descriptive to normative propositions without adequate warning or explanation. Its expressed normative preferences consequently often appear to rest on little more than unsubstantiated assertion or culturally-loaded assumptions. Vogler even drags Herbert Packer into this mire, by corrupting Packer's self-consciously, and clearly advertised, normative argument into a supposedly ‘ value-neutral … functional analysis of criminal procedure'.
The structural theoretical skeleton of A World View of Criminal Justice fares no better under the critical microscope. Vogler's key concepts of ‘ inquisitorial' , ‘ adversarial' and ‘ popular justice' procedural forms are not defined with sufficient precision or elaborated at adequate length for the purposes at hand. It remains an open question whether they adequately or meaningfully characterize identifiable procedural traditions. When the concepts are put to work in historical exegesis, the relative significance of legal procedure often seems over-inflated in comparison with broader political, economic, social and cultural factors. Criminal procedure is apparently credited with a spurious determinism. Finally, the values which each procedural tradition is supposed to represent, and in practice to incubate and propagate, are not delineated with sufficient care or focused application. It is truistic that legitimate criminal process for a modern democracy must balance the competing interests of individual participants, state and society. The real question is: how? The central thesis of A World View of Criminal Justice , that criminal procedure reform must always combine elements of ‘ the three great trial methodologies' , in itself provides no tangible answers. In the absence of further concrete applications, readers of the book may well be left wondering what this novel conceptualization was supposed to add to our existing knowledge or understanding.
Herein lies what might be regarded as Vogler's final, albeit inadvertent, contribution to the growing methodological sophistication of comparative criminal justice scholarship. Theoretical inquiry, as Vogler himself insists, is an indispensable component of comparative research, and an area in which existing scholarship betrays considerable scope for improvement. However, the implications of this challenge must not be underestimated. For it appears that the exacting standards of conceptual analysis and normative philosophical inquiry to which students of criminal process should aspire may elude even the most historically well-informed and geographically inclusive comparativists.
A review of R Vogler, A World View of Criminal Justice (Ashgate, Aldershot 2005) hereinafter World View .
O.J.L.S. 2008, 28(2), 369-391
See eg M Delmas-Marty and JR Spencer (eds), European Criminal Procedures (CUP, Cambridge 2002).
Most of which, understandably, concentrate on providing descriptive accounts of current law and practice, eg C van den Wyngaert with C Gane, HH Kühne and F McAuley (eds), Criminal Procedure Systems in the European Community (Butterworths, London 1993); J Fionda, Public Prosecutors and Discretion: A Comparative Study (OUP, Oxford 1995); LH Leigh and L Zedner, A Report on the Administration of Criminal Justice in the Pre-Trial Phase in France and Germany , RCCJ Research Study No.1 (HMSO, London 1992); RS Frase, ‘ Comparative Criminal Justice as a Guide to American Law Reform: How Do the French do It, How Can we Find Out, and Why Should we Care?' (1990) 78 Calif L Rev 539-683. Even texts which seek to convey a sense of the historical development of modern criminal procedure law, such as J Hodgson, French Criminal Justice (Hart Publishing, Oxford 2005), are conspicuously less ambitious than Vogler's sweeping World View.
Such cross-jurisdictional transplants rarely proceed as smoothly as their architects and sponsors might wish: see WT Pizzi and M Montagna, ‘ The Battle to Establish an Adversarial Trial System in Italy' (2004) 25 Mich JIL 429-466; E Grande, ‘ Italian Criminal Justice: Borrowing and Resistance' (2000) 48 Am J Comp L 227-259. For theoretical reflections on experiences of procedural borrowing and adaptation, see M Langer, ‘ From Legal Transplants to Legal Translations: the Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure' (2004) 45 Harv JIL 1-64; M Dama%24ska, ‘ The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments' (1997) 45 Am J Comp L 839-852.
World View 192. Also see DC Turack, ‘ The New Chinese Criminal Justice System' (1999) 7 Cardozo J Intl Comp L 49-72, 72 (cautiously welcoming the ‘ introduction of some adversarial elements into the pre-trial and trial process' in China). The first-ever ‘ International Symposium on Evidence Law and Forensic Science' attended by scholars, lawyers and judges from all over China, was hosted by the Institute of Evidence Law and Forensic Science of the China University of Political Science and Law (CUPL) in Beijing, 15-16 September 2007. One prominent item on the agenda for discussion was a draft Code of Evidence Law for China, substantially modelled on the US Federal Rules of Evidence. Also see J He, ‘ An Outline for the Reform of the Criminal Evidence System in the People's Republic of China' (2003) 6 J Chinese Comp L 79-123; R Lancaster and X Ding, ‘ Addressing the Emergence of Advocacy in the Chinese Criminal Justice System: A Collaboration between a U.S. and a Chinese Law School' (2007) 30 Fordham Intl LJ 356-373.
Gacaca was a traditional dispute-resolution process, adapted-not entirely successfully-to the exigencies of post-genocide reconstruction in Rwanda: see M Goldstein-Bolocan, ‘ Rwandan Gacaca: An Experiment in Transitional Justice' (2005) J Disp Res 355-400; J Fierens, ‘ Gacaca Courts: Between Fantasy and Reality' (2005) 3 JICJ 896-919; P Roberts, ‘ Restoration and Retribution in International Criminal Justice: An Exploratory Analysis' , in A von Hirsch, J Roberts, AE Bottoms, K Roach and M Schiff (eds), Restorative Justice and Criminal Justice (Hart Publishing, Oxford 2003); MA Drumbl, ‘ Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda' (2000) 75 NYU LR 1221-1326.
Cf M Dama%24ska, ‘ The Death of Legal Torture' (1978) 87 Yale LJ 860-884 (debating the significance of judicial torture, and its ultimate demise, for the character of continental legal procedures).
World View 246. Also see SC Thaman, ‘ Spain Returns to Trial by Jury' (1998) 21 Hastings Int Comp L Rev 241-537.
And see SC Thaman, ‘ Europe's New Jury Systems: The Cases of Spain and Russia' , in N Vidmar (ed) World Jury Systems (OUP, Oxford 2000). Another jurisdiction that has recently reclaimed the lay jury from its pre-Soviet historical legacy is Poland, albeit that implementation has been faltering: see SC Krasnokutski, ‘ Human Rights in Transition: The Success and Failure of Polish and Russian Criminal Justice Reform' (2001) 33 Case W JIL 13-69.
Cf MD Dubber, ‘ The German Jury and the Metaphysical Volk : From Romantic Idealism to Nazi Ideology' (1995) 43 Am J Comp L 227-271.
Of course, quotidian realities often belie the popular ideal; and trial by jury in England and Wales has attracted plenty of local critics as well as defenders. A well-known broadside is P Darbyshire, ‘ The Lamp That Shows that Freedom Lives: Is it Worth the Candle?' (1991) Crim LR 740-752. For a defence linking lay adjudication to traditional common law trial procedures, see P Roberts and A Zuckerman, Criminal Evidence (OUP, Oxford 2004) 59-67; and for more general discussion of these themes, see P Roberts, ‘ Theorising Procedural Tradition: Subjects, Objects and Values in Criminal Adjudication' in A Duff, L Farmer, S Marshall and V Tadros (eds), The Trial on Trial Volume 2: Judgment and Calling to Account (Hart Publishing, Oxford 2006).
Cf T Hö rnle, ‘ Democratic Criminal Process' , in proceedings of a workshop on Democratic Criminal Justice , hosted by the Law Faculty of the University of Warsaw, 14-15 October 2006, 128-129: ‘ [P]ublic support and perceived importance of lay participation is not uniform throughout Europe. In the German literature, scepticism about the necessity of lay participation prevails…. Lay participation is a symbolic token of scepticism towards the state…. From the normative point of view, however, there is no objection to abolishing lay participation.'
These critics apparently include the Home Office, which is currently contemplating systemic reform of PACE: see E Cape, ‘ Modernising Police Powers - Again?'  Crim LR 934-948. For more extensive summaries and nuanced overviews of PACE-evaluation research, see: A Ashworth and M Redmayne, The Criminal Process: An Evaluative Study (3rd edn OUP, Oxford 2005); A Sanders and R Young, Criminal Justice (3rd edn, OUP, Oxford 2007), especially, chs 2-6; P Roberts and A Zuckerman, Criminal Evidence (OUP, Oxford 2004), chs 4 and 9; P Roberts, ‘ Law and Criminal Investigation' , in T Newburn, T Williamson and A Wright (eds), Handbook of Criminal Investigation (Devoni Willan, Cullompton, 2007); S Choongh, ‘ Police Investigative Powers' and M Maguire, ‘ Regulating the Police Station: The Case of the Police and Criminal Evidence Act 1984' both in M McConville and G Wilson (eds), The Handbook of the Criminal Justice Process (OUP, Oxford 2002).
R Dworkin, Law's Empire (Fontana, London 1986).
Cf A Duff, L Farmer, S Marshall and V Tadros, ‘ Introduction: Towards a Normative Theory of the Criminal Trial' in Duff and others (eds), The Trial on Trial Volume 1: Truth and Due Process (Hart Publishing, Oxford 2004) (registering surprise at the paucity of scholarship investigating criminal trials from an explicitly normative perspective).
Ibid 255, 286.
PJP Tak, The Dutch Criminal Justice System: Organization and Operation (2nd rev edn WODC, The Hague 2003).
A perfectly representative example is F Tulkens, ‘ Criminal Procedure: Main Comparable Features of the National Systems' in M Delmas-Marty (ed), The Criminal Process and Human Rights: Toward a European Consensus (Martinus Nijhoff, The Hague 1995).
See eg S Maffei, ‘ Negotiations “ On Evidence” and Negotiations “ On Sentence” : Adversarial Experiments in Italian Criminal Procedure' (2003) 2 JICJ 1050-1069.
HL Packer, ‘ Two Models of the Criminal Process' (1964) 113 U Penn LR 1-68, subsequently expanded and incorporated into Packer's The Limits of the Criminal Sanction (Stanford UP, Palo Alto, CA 1969).
HL Packer, ‘ Two Models of the Criminal Process' (1964) 113 U Penn LR 1-68, 9-11.
HL Packer (n 36) 5 (emphasis added).
Packer, remember, is talking about criminal procedure in the USA. He does not purport to make comparative judgements or to infer global trends.
HL Packer, The Limits of the Criminal Sanction (Stanford UP, Palo Alto, CA 1969).
HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (OUP, Oxford 1968).
For convincing criticisms of Hart's position, see N Lacey, State Punishment: Political Principles and Community Values (Routledge, London 1988); but cf J Gardner, ‘ Introduction' in HLA Hart, Punishment and Responsibility (2nd edn OUP, Oxford 2008) xxix, insisting that ‘ [t]he real problem … is not that the Hartian defence of punishment is too mixed but that it is not mixed enough.'
Many go much further, of course; although extreme psychological pressure and physical abuse typically involve law-breaking. For countries of the Council of Europe, this is now a matter of European Human Rights Law as well as domestic criminal procedure: see, eg Selmouni v France (2000) 29 EHRR 403 (ECtHR).
In England and Wales, confession evidence cannot be adduced in court if it was procured by ‘ oppression' or official conduct liable to render confessions unreliable: Police and Criminal Evidence Act 1984, s 76(2). This by no means precludes all psychological pressure or trickery by the police. For examples of conduct on either side of the line, compare R v Fulling  QB 426, CA, with R v Paris, Miller and Abdullahi (1993) 97 Cr App R 99, CA.
It has been suggested that the notion of ‘ inquisitorial' Continental legal procedure today exists only in the untutored projections of common lawyers: JF Nijboer, ‘ Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective' (1993) 41 Am J Comp L 299-338.
Descriptions of French criminal procedure, for example, frequently comment on the weight of the social expectation that accused persons must speak up for themselves and participate actively in their trials: see eg S Field, ‘ State, Citizen, and Character in French Criminal Process' (2006) 33 J L Soc 522-546; B McKillop, ‘ Readings and Hearings in French Criminal Justice: Five Cases in the Tribunal Correctionnel ' (1998) 46 Am J Comp L 757-783. But cf the empirically based criticisms of ‘ the religion of confession' developed by J Hodgson, French Criminal Justice (Hart Publishing, Oxford 2005).
See (n 24) and accompanying text.
Ibid 13 (emphasis added).
Ibid 65. Cf PH Solomon Jr, Soviet Criminal Justice Under Stalin (CUP, Cambridge 1996), whose comprehensive historical study concludes that ‘ [m]any of Stalin's extensions of the criminal law and his introduction of harsh punishments for particular offences contradicted the values of legal officials and their understanding of what was fair or appropriate. In fact, both judges and other would-be enforcers of these changes in the law resisted their implementation…. As long as careers were not at stake, many judges in the USSR were ready to resist orders that violated their sense of fair play. Only when the potential loss of post in a legal agency came to matter did judges adopt a more uniformly compliant cast…. Even in the most centralized system of criminal justice administration, practitioners manage to shape its contours in significant ways….When Stalin tried to use the criminal law for purposes and in ways not accepted by its enforcers (legal officials, police, and others) or call for penalties that struck them as too severe, the result was evasion, resistance, and inconsistent enforcement' (ibid 451, 453, 462-463). The fact that Stalin's Great Terror was largely conducted through exceptional process (secret police; military tribunals; summary adjudication by executive means) rather than regular criminal procedure also seems to contradict Vogler's thesis.
Endlösung --a typically Nazi euphemism for the physical destruction of European Jewry: see, generally, R Hilberg, Perpetrators, Victims, Bystanders: The Jewish Catastrophe 1933-1945 (HarperCollins, New York 1992); Z Bauman, Modernity and the Holocaust (Polity, Cambridge 1989); DJ Goldhagen, Hitler's Willing Executioners: Ordinary Germans and the Holocaust (Abacus, London 1997).
Cf MR Dama%24ska, The Faces of Justice and State Authority (Yale UP, New Haven 1986) 20, 28, remarking that ‘ official discretion is anathema' to the inquisitorial procedural tradition whilst ‘ the theme of official discretion becomes the essential accompaniment of coordinate judicial organization' in adversarial legal systems.
For an accessible summary, see H Collins, Marxism and Law (OUP, Oxford 1982).
Ibid 142-143, 144.
To cite just one suggestive example, it would be interesting to investigate how the version of adversarialism now practised in the USA has diverged from criminal procedure in England and Wales, notwithstanding a shared Anglophone cultural heritage and broadly similar socio-economic conditions, owing to the distinctive experience of constitutional republicanism institutionalized in American law and practice. The most obvious manifestation of this distinctive experience, and a promising place for such researches to begin, is the US Bill of Rights, and in particular the Fourth, Fifth, Sixth and Eighth Amendments to the US Constitution pertaining directly to criminal procedure: see AR Amar, The Constitution and Criminal Procedure: First Principles (Yale UP, New Haven 1997).
Art 6 of the ECHR, which was largely devised by British draftsmen, works a number of distinctively adversarial notions into the Council of Europe's conception of ‘ fair trial' : see S Trechsel and S Summers, Human Rights in Criminal Proceedings (OUP, Oxford 2006); G Marston, ‘ The United Kingdom's Part in the Preparation of the European Convention on Human Rights, 1950' (1993) 42 ICLQ 796-826.
Section 2, above.
Bearing the less than fully transparent title ‘ Criminal Justice Reform'.
Cf P Roberts, ‘ Comparative Law for International Criminal Justice' in E Örücü and D Nelken (eds), Comparative Law: A Handbook (Hart Publishing, Oxford 2007), elaborating ‘ seven concentric circles' of International Criminal Justice (ICrimJ). For general surveys, see R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure (CUP, Cambridge 2007); A Cassese, International Criminal Law (OUP, Oxford 2003).
Ibid 284-285. The ICC was established by the Rome Statute 1998: see www.icc-cpi.int/.
Cf P Murphy, ‘ Excluding Justice or Facilitating Justice? International Criminal Law would benefit from Rules of Evidence' (2008) 12 E & P 1-31, 13, contending that ‘ [t]he ICTY's jurisprudence on evidence … though paying lip service to the adversarial nature of the Tribunal's proceedings … treats evidence much more in accordance with the civil law tradition of free proof.'
See further, RWD Jones and S Powles, International Criminal Practice (3rd edn OUP, Oxford 2003) Pt 7; P Wald, ‘ Fair Trials for War Criminals' (2006) 4 International Commentary on Evidence, Art 6.
Comprehensive information on the federal system of procedural rule-making by judicial committees can be found on the web site of the ‘ U.S. Courts' : www.uscourts.gov/rules/newrules3.html.
Freshly minted Criminal Procedure Rules (CrimPR) came into force in England and Wales on 4 April, 2005. The Rules are maintained on-line by the Ministry of Justice at www.justice.gov.uk/criminal/procrules_fin//rulesmenu.htm. CrimPR are drafted and revised by a standing Criminal Procedure Rule Committee, established by Pt 7 of the Courts Act 2003. The Committee is chaired by the Lord Chief Justice, and its membership includes representatives drawn from all levels of the judiciary, as well as police, prosecutors and the voluntary sector.
SC Res. SC 827 (1993), as amended: www.un.org/icty/legaldoc-e/index.htm
Which has attracted significant critical attention: see eg C Warbrick and S Tierney (eds), Towards an ‘ International Legal Community' ?: The Sovereignty of States and the Sovereignty of International Law (BIICL, London 2006); B Simma and AL Paulus, ‘ The “ International Community” : Facing the Challenge of Globalization' (1998) 9 EJIL 266-277; P Allott, ‘ The True Function of Law in the International Community' (1998) 5 Ind J Glob Leg Stud 391-413; G Abi-Saab, ‘ Whither the International Community?' (1998) 9 EJIL 248-65; D Kritsiotis, ‘ Imagining the International Community' (2002) 13 EJIL 961-992.
See (n 14).
MA Drumbl (n 14).
Prosecutor v Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić & Berislav Pu%24sić (IT-04-74). The trial proper commenced on 26 April 2006, and remained in-session at this writing (January 2008).
JH Langbein, The Origins of Adversary Criminal Trial (OUP, Oxford 2003) 9.
See J Waldron, ‘ Minority Cultures and the Cosmopolitan Alternative' in W Kymlicka (ed), The Rights of Minority Cultures (OUP, Oxford 1995).
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