Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

3
Are Inquisitorial and Adversarial Systems Converging?

NICO JÖRG, STEWART FIELD, AND CHRISJE BRANTS


INTRODUCTION: THE QUEST FOR THE TRUTH, THE FAIRNESS OF CRIMINAL PROCEDURE, AND LEGITIMACY

It has been a long-standing habit among legal scholars to think in terms of families of law: civil law families on the continent of Europe, common law families in Great Britain and her former colonies. While differences within these systems are often regarded as incidental, those between them are seen as essential. From a comparative angle, the intriguing question arises whether the legal systems of continental and common law countries-- usually portrayed as diametrically opposed--are gradually converging. If that is indeed the case, does this imply that both systems will eventually adopt so many of each other's characteristics as to become no more than variations on a theme--their differences no longer essential, our traditional frame of reference no longer appropriate?

It is also possible that the two systems are moving towards each other, but that convergence beyond a certain point is out of the question--for the simple reason that there is a critical limit at which each system would start to risk disintegration. This implies--and it may be especially true in the field of criminal justice--that these systems are the embodiment of such divergent norms and values in the field of criminal justice, in their turn reflecting profound societal values, that they can never be brought together entirely. And there is, of course, a third and more radical possibility. Perhaps due to the influence of shared European institutions (notably the European Community and Union Treaties and the Court of Justice in Luxembourg, and the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the European Court of Human Rights in Strasbourg), one system will in the end come to dominate the other, thereby causing the latter to lose many of its salient and unique features.1

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1
Developments within the European Community and Union, and its different institutions especially, are usually referred to in terms of harmonization, which is indeed one of the goals of these institutions. Harmonization, interesting though it is, does not come within the scope of this chapter, for it is based on the assumption that each system will retain is own essential characteristics.

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