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Publication Title

Washington University Global Studies Law Review

Abstract

These remarks begin by expressing a very respectful dissent from other speakers who have referred to different “systems” of criminal justice.This paper argues, on the contrary, that there are three great global methodologies of criminal justice which have become progressively integrated within different systems. First, is the adversarial method developed in the eighteenth century, which is strongly associated with due process, rights, and law. Second, is the inquisitorial method, which is much older and somewhat authoritarian, and which is based upon scientific and forensic inquiry in a very bureaucratic setting. The third method is popular participation in justice, which is characterized by pragmatism and common sense, and is currently represented in the jury system, but through other forms of popular participation as well. This essay argues that these methodologies have historically inter-penetrated each other to such an extent that it is no longer possible for one to talk about distinct “systems.”

This article concentrates on only one of these: adversariality. Although these remarks look specifically at Spain, France, and England, these countries are part of a worldwide movement towards adversariality. Since the Second World War we have seen adversariality sweeping across Western Europe, Latin America, the former Soviet Union, and into the international tribunals. This movement has been described as a transformation similar to the reception of Roman Law in the jus commune period; a transformation of such enormous importance that it is one of the most important cultural changes of our generation.

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