Beyond normative constraints: Declining institutionalism and the emergence of substantive and procedural justice

Abstract

Popular notions of what it means to be put on trial invariably generate thoughts of the adversarial criminal trial, most often before a judge and jury. However, the criminal trial as the site for the testing of evidence of wrongdoing via a model of proof that proceeds according to prescribed processes in a normative institutional milieu is in decline. Controversially, this decline has been met with resistance from the legal profession, academics, policy makers and other stakeholders seeking to preserve the due process model that defines the criminal trial as an adversarial exchange between state and defendant. While the due process model continues to dominate as popular conceptualisation, the twenty-first century criminal trial has changed to such an extent that it is no longer seen as the quintessential form for the meting out of procedural fairness and testing of state's evidence, that emerged toward the end of the seventeenth century. Rather, the rise of control orders, modifications to the law of evidence, and the right of the accused to confront their accuser, together with the inclusion of non-traditional agents of justice, specifically victims and the community, has brought forward an era of substantive and procedural justice that lies beyond the normative constraints of the criminal trial. Robed counsel and bewigged judges beware; the advent of substantive and procedural justice has allowed for greater innovation transgressing the orthodoxies of criminal law in common law systems of justice. This paper will consider the virtues of the introduction of a transgressive criminal procedure.