Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide

Abstract

Abstract Although the terms “inquisitorial” and “accusatorial” (or as those in the common law world prefer, “adversarial”) are fixtures of the comparative literature on procedure, there remains considerable disagreement regarding their definitions and indeed whether to continue using them at all. Yet, despite these debates, we know remarkably little about how the terms first emerged as central to comparative analysis. This Article begins the work of recovering this neglected history. It argues that the immediate spark—especially in Germany, Italy, and France—was the ongoing debate over the French Code of Criminal Procedure, introduced through Napoleonic conquest into large portions of Europe. After the 1815 Congress of Vienna and its pact of restoration, extensive discussion arose regarding whether, and to what extent, to preserve French law—including criminal procedure. So too, in the ensuing nationalist awakening, debates raged over the constitutional foundations of government, pitting defenders of the old order against proponents of more liberal regimes. As these debates regarding criminal procedure and constitutional politics unfurled, they came to intertwine, and were framed in the 1830s in terms of the accusatorial/inquisitorial divide. Since no comprehensive account of these distinct, but intersecting, debates is possible within these brief pages, the Article focuses primarily on France—the country whose revolution and subsequent wars of conquest played such a decisive role in launching these pan-European arguments in the first place. Profoundly influenced by their liberal nationalist (and imperialist) commitments, as well as by their embrace of an historicist approach to law that was widespread among contemporary scholars, French jurists developed the accusatorial/inquisitorial distinction in ways that continue to reflect these core aspects of their mindset. This forgotten history highlights several deep-rooted continuities in how the accusatorial/inquisitorial terminology has long been deployed, affording valuable cautionary notes, while also pointing toward more fruitful lines of procedural inquiry.