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.

Potted Contents

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 crimin