3. Common Law v. Romano-Germanic Law

This class will be devoted to distinguishing the common law and Romano-Germanic or continental systems of criminal justice, as they occur both in substantive and procedural criminal law. Due emphasis will be given to difficulties in defining each of these traditions, of finding pure versions thereof in the real world, and of the differences within each tradition. The place of Canadian criminal law and procedure will be located within these broad constellations.

It is generally understood that the common law criminal procedure is accusatorial (and generally adversarial) whilst the continental criminal procedure is inquisitorial. The word "inquisitorial" of course invokes images of the "Holy Inquisition" and may thus be unhelpful. Today, both accusatorial and inquisitorial systems of criminal justice belong to the broad family of liberal criminal justice and it would be difficult to claim that one is inherently better at protecting rights. All kinds of other factors enter into account, and each system may be better designed at ensuring justice in certain cases than others. Moreover, there has been some convergence between systems and a certain tendency of traditionally inquisitorial systems to become more adversarial (Italy, Mexico, etc).

Still, notable differences in legal philosophy and culture remain, that have considerable implications for legal practice. This is especially evident if you are ever involved in transnational criminal cases such or work with international criminal tribunals. But it may also be visible domestically as systems increasingly borrow from each other. The common law is generally considered to be the more liberal system, and certainly represents a more atomized take on society. For example, the common law typically does not impose punishment for pure omissions, whereas civil law countries are prone to have a délit of "non-assistance à personne en danger." But the common law has its own illiberal tendencies: for example, a keenness to prosecute conspiracies that has no equivalent in the civil law tradition.

Procedurally, the differences seem to be more systematic and run deeper. Broadly speaking, the adversarial tradition views the trial as a contest between equal parties. Truth may be sought, but it is the particular procedural truth that emerges from that highly regulated contest. Investigations have been undertaken mostly by the police. The judge acts as an impartial umpire ensuring that the contest is fair but does not direct proceedings. The parties are in charge, as seen for example in the mechanism of cross-interrogation. The system relies on highly technical rules of exclusion of evidence to make sure that evidence that would be prejudicial to the accused is excluded.

In the inquisitorial tradition, the pre-trial phase typically involves a magistrate supervising the police investigation with a view to ascertaining whether there is a prima facie case to answer. Her resulting report then provides the basis for the trial. That is why it is sometimes suggested that the defendant is not entirely presumed innocent: if s/he goes to trial it is already that there is an officially sanctioned case against him. Nonetheless, the ensuing trial is a real trial and the presumption of innocence is guaranteed in many continental systems. The judge, however, has access to the pre-trial judge's report, including large amounts of written evidence and transcripts that would not normally be automatically admissible in adversarial proceedings. Moreover, it is the judge who leads proceedings and specifically who questions witnesses.

Further Reading:

• • Spencer, John R. “Adversarial vs Inquisitorial Systems: Is There Still Such a Difference?” The International Journal of Human Rights 20, no. 5 (July 3, 2016): 601–16.

  • Weigend, Thomas. “Should We Search for the Truth, and Who Should Do It.” North Carolina Journal of International Law and Commercial Regulation 36 (2011 2010): 389–416.

  • Fairlie, Megan. “The Marriage of Common and Continental Law at the ICTY and Its Progeny, Due Process Deficit.” International Criminal Law Review 4, no. 3 (2004): 243–319, read pages 246-260

  • Langer, Maximo. “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure.” Harvard International Law Journal 45 (2004): 1–64

  • Judge Peter J. Messitte, Montevideo, Uruguay, PLEA BARGAINING IN VARIOUS CRIMINAL JUSTICE SYSTEMS, May, 2010

  • Ryan, Andrea. Towards a System of European Criminal Justice: The Problem of Admissibility of Evidence. Routledge, 2014, read pp. 1 to 10.

  • King, Matthew T. “Security, Scale, Form, and Function: The Search for Truth and the Exclusion of Evidence in Adversarial and Inquisitorial Justice Systems.” Int’l Legal Persp. 12 (2001): 185.

  • Walpin, Gerald. “America’s Adversarial and Jury Systems: More Likely to Do Justice.” Harv. JL & Pub. Pol’y 26 (2003): 175.

  • Panzavolta, Michele. “Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law System.” NCJ Int’l L. & Com. Reg. 30 (2004): 577.

  • Damaska, Mirjan R. The Faces of Justice and State Authority: A Comparative Approach to the Legal Process. Yale University Press, 1991

  • Jackson, John, and Maximo Langer. Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska. Bloomsbury Publishing, 2008.

  • Mégret, Frédéric. “Beyond Fairness: Understanding the Determinants of International Criminal Procedure.” UCLA J. Int’l L. Foreign Aff. 14 (2009): 37.

• Damaška, Mirjan. “Structures of Authority and Comparative Criminal Procedure’(1975).” Yale Law Journal 84 (n.d.): 480.

  • Damaska, Mirjan R. The Faces of Justice and State Authority: A Comparative Approach to the Legal Process. Yale University Press, 1986. https://books.google.ca/books?hl=en&lr=&id=TSfwAAAAQBAJ&oi=fnd&pg=PP2&dq=structures+of+authority+and+comparative+criminal+law&ots=vgV8O3oRwz&sig=jzmX5U6k9nJ_SrTveoohVuaQhSI.

  • Frase, Richard S. “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?” California Law Review, 1990, 539–683.

  • McDougal, Myres S. “The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order.” The Yale Law Journal 61, no. 6 (1952): 915–946.

  • Pizzi, William T. “Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform.” Ohio St. LJ 54 (1993): 1325.

  • Schlesinger, Rudolf B. “Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience.” Buff. L. Rev. 26 (1976): 361.