Inquisitorial Proceedings Research Articles

Tortury w świetle bulli Ad extirpanda (1252) papieża Innocentego IV

In this paper, the author discusses the content of the bull Ad Extirpanda of 1252 and seeks an answer to the question why Pope Innocent IV allowed in it for secular and ecclesiastical authorities to use torture in trials against heretics. This applied to both the accused and the witnesses. Sinibaldo Fieschi, the valued Romanist, was active during the medieval renewal of Roman law. Undoubtedly, this and many other factors, such as the development of the Inquisition, influenced the Pope's decision. The very issue of torture in the bull was treated quite marginally, and the document was more concerned with inquisitorial proceedings. This paper is dominated by the historical and legal method, but the author also reaches for the dogmatic and legal or comparative methods. Before discussing in detail the content of the bull and the reasons for its announcement, the paper focuses on the figure and teaching of Innocent IV, who, between 1213 and 1225, studied law in Bologna. The bull of 1252 was addressed to the leaders of all Italian communes, i.e. to the podests, rectors, councils of Lombardy, Romagna, and the Marchia Tervisina. Torture was a means of obtaining a confession, which was very important in the catalogue of various sources of evidence, such as oaths sworn by the parties, witnesses, God's judgments, or documents. In light of Constitution 25 of the bull in question torture should not lead to the loss of body members or life itself. It purpose was to get heretics to recant their errors and accuse other heretics known to them. The inquisitorial procedure itself strengthened the power of the Pope and the bishops. It was more rational than trial by ordeal.

Why Carr v. Saul Should Signal the End of Common Law Issue Exhaustion in Inquisitorial Proceedings

This past April, the Supreme Court in Carr v. Saul, unanimously held that claimants need not have raised at the social security administration’s (SSA) hearing stage, an Article II Appointments Clause challenge to the appointment of their administrative law judges (ALJ), to preserve these structural constitutional issues for judicial review under the common law issue exhaustion doctrine. The Court’s decision extended a 2000 decision by a bare majority of the Court in Sims v. Apfel, categorically rejecting common law issue exhaustion for SSA’s inquisitorial administrative appeals stage of review but reserving the question of applying it at the hearing stage. In this year’s Carr decision, however, the Court also reserved the additional question whether common law issue exhaustion should more broadly apply to bar judicial review of “routine” (non-structural constitutional) objections not raised at the hearing—an issue which divided the Justices in separate concurring opinions. Since SSA annually adjudicates approximately 800,000 disability benefits hearings, virtually all involving “routine” issues with critical life support benefits for medically infirm and low-income persons at stake, this open question has raised serious concerns for claimants and agency adjudicators alike. This article addresses the important question reserved by the Court in Carr. It concludes that the Carr Court’s reasoning should put to rest the debate over the propriety of judicially created issue exhaustion in any inquisitorial SSA adjudicative proceeding, including those at the ALJ hearing stage involving “routine” issues. The Carr and Sims decisions require express consideration of the non-adversarial and informal nature of the adjudication context in question and those considerations will decisively weigh against common law issue exhaustion’s application to any of SSA’s inquisitorial proceedings. The federal courts’ extension of common law issue exhaustion into these proceedings was mistaken from the outset and heedlessly adapted from inapposite and questionably supported precedents from adversarial adjudicative systems. Its further application should be discontinued, and any further consideration of its use in inquisitorial SSA proceedings should be confined to the open, deliberative, participatory and democratically accountable regulatory rulemaking or congressional lawmaking processes.

O fogo luterano na América portuguesa: hereges protestantes nas malhas da inquisição

O livro “Os pecados do Brasil: protestantes e a inquisição em tempos coloniais” é o resultado da sua tese de doutoramento intitulada “Os pecados do Brasil: luteranos e Inquisição séculos XVI e XVII”, acrescido de um prefácio escrito pelo professor Antônio Edmilson Martins Rodrigues. Suas principais fontes constituem-se de um conjunto de quinze processos inquisitoriais pertencentes ao Tribunal do Santo Ofício de Lisboa que envolveram as culpas de luteranismo, além de contar com as denúncias e confissões provenientes das visitações de Heitor Furtado de Mendonça na Bahia e Pernambuco (1591- 1595). Abrangendo os séculos XVI e XVII a autora realizava uma classificação dos sujeitos processados em três categorias: Os luteranos das naus, luteranos da terra firme e luteranos do coração.

СИСТЕМА СУДОПРОИЗВОДСТА ИНКВИЗИЦИИ В СРЕДНЕВЕКОВЬЕ

The history of the Roman Catholic Church among the modern generation is associated primarily with two historical events - the Crusades and the Holy Inquisition. The last phenomenon is discussing in this article. Here, the inquisitorial tribunals are considered not from a historical point of view, but from a legal one. Shows and analyzes the main procedural aspects of the inquisitorial proceedings, typical for all medieval Catholic countries. The article provides an assessment of both contemporaries of those events and later historians regarding the activities of the Inquisitional Tribunals.

PREGLED AKUZATORSKOG, INKVIZITORSKOG I SAVREMENOG KRIVIČNOG POSTUPKA KROZ RAZVOJ KRIVIČNOG PROCESNOG PRAVA

Any consideration of the development of legal institutes indirectly indicates the development of a person's thoughts and ideas that relate to his or her protection, directly or indirectly. From initial magic-based conceptions, through inquisition and torture as a legitimate mechanism for establishing the “true” truth, the protection of rights and justice has placed an increasingly stringent requirement on establishing rules of criminal procedure. The historical development of criminal procedural law can be clearly seen through three major systems: accusatory, inquisitorial and modern criminal proceedings. This research will review these systems from a brief analysis to a critical review. The accusatory system is characterized by the dominance of the ideas of protecting liberties and human rights, while the inquisitorial concept emphasizes the effectiveness of combating crime. Modern criminal procedure is born as an attempt to establish a harmonious relationship between the decisions of the accusatory and inquisitorial criminal proceedings. Differentiating the aforementioned legal concepts based on different principles of basic procedural principles that have an impact on basic procedural functions. The time of their replacement is very difficult to determine, and the reason is that, in practice, these concepts are, conditionally speaking, articulated most often in mixed forms, which will be discussed more in this paper. At the end of the discussion of the topic of this research, we will outline the opinions and conclusions reached.

Alternatives to Traditional Adversary Methods of Presenting Scientific Expertise in the Legal System

The twin goals of any litigation are to arrive at a correct outcome and provide the parties with a sense that they were treated justly, even if they do not prevail. Adversarial proceedings are often perceived to be superior to inquisitorial proceedings with respect to the second goal but inferior with respect to the first. This is especially the case when proceedings involve expert testimony. In this essay, we discuss several relatively minor changes to typical adversarial processes that offer the potential of improving trial accuracy without disrupting the overall structure of adversarial proceedings. These changes include 1) alterations to the organization of the trial, including concurrent expert testimony; 2) alterations to the role of the jury, including taking notes, asking questions, and receiving written expert reports; and 3) formal expert witness codes of conduct designed to better arm experts to resist the adversarial pressures that lead to biased testimony.

Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction

The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system. In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments. Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.

Defining the Church of England in Italy in the Early Modern Times: British Reconciliations in the Documentation of the Inquisition of Pisa

The documents of the Roman Inquisition evidence the semantic embarrassment of the Inquisitors to define the members of the Church of England. The expression “of the Anglican sect of Protestants” is very rarely used for them. More often the British are defined as Calvinists or as Lutherans, more rarely as “Protestant heretics of England”, or as of the “mixed religion, part of Luther and part of Calvin.” The schemes crystallized in the Inquisitorial manuals present a conceptual framework that obviously did not work well for Protestants who were neither Lutherans nor Calvinists. The mechanical application of these uncertain definitions demonstrates not only the lack of a more sophisticated interpretative paradigm but also the bureaucratic nature of many of the inquisitorial proceedings.

Contemporary reform of the criminal proceedings in the Republic of Serbia: Legal history view

This article aims to review some solutions in the Criminal Procedure Code (CPC) from 2011, which represents breaking with former Serbian and Yugoslav tradition in criminal proceedings. These are, primarily, novelties related to opportunism in prosecution, plea bargaining and presentation of evidence by parties that all devalue principles of material truth determination in proceedings. This work establishes connection between the aforementioned solutions of Serbian legislator and the development of continental European criminal proceeding over centuries. Comparative historical legal analysis of these norms in the Serbian CPC begins with the key turning point in the development of the continental European criminal proceedings - suppression of the adversarial system by the inquisitorial proceedings in the XVI and XVII centuries. As this change has been closely related to the transition of, up to then, dominant type of states (feudal mosaic states to absolute monarchies), these modern changes in criminal proceedings are analyzed not only from the point of view of criminal procedure evolution, but also from the point of view of the evolution of states. In England, country of origin of Anglo-Saxon civilization, the old adversarial system was not transformed into inquisitorial, contrary to the development of the continental criminal proceedings. This transformation was prevented by Puritan revolution, similarly as it prevented the transformation of English state into absolute monarchy. Continental and Anglo-Saxon criminal proceedings have developed as two completely separate systems since then. This article further elaborates some of the key criminal law traditions in continental criminal proceedings and substantive criminal law which resulted from the introduction of the inquisitorial proceedings: development of complicity and guilt as institutes, final suppression of self-representation, incrimination of false testimony and perjury. These are directly related to the active role assigned to court in inquisitorial proceedings, and to court?s obligation to determine material truth. Changes in the role of court also result from the change of states; while weak feudal states were satisfied with passive courts, powerful absolute monarchies demanded courts with active role in all phases of proceedings. Modern Americanization of some European proceeding regulations, as it is the case in Serbia, brings discontinuation in legal proceeding tradition of these states, but also, necessarily, influences regression into domination of adversarial proceedings character?ized by passive court. In continental tradition it also consequently indicates a weak state.

No Justice Without Lawyers The Myth of an Inquisitorial Solution

The withdrawal of legal aid from most areas of civil litigation has resulted in a large increase in litigants in person, or unrepresented litigants. The volume of cases in which one or both parties have no legal representation presents the courts with two challenges; one of resources and the other of justice. A court dealing with unrepresented litigants has to devote more time and effort to the process since lay persons cannot handle litigation as efficiently as lawyers. Further, since unrepresented litigants lack the knowledge or skill necessary for the effective prosecution of their case, they are exposed to a risk of losing which is unrelated to the merits of their case; ie, a justice deficit. The paper deals with strategies that have been proposed or employed for dealing with these problems. One of the strategies involves the introduction of a more inquisitorial procedure in order to redress the justice deficit. However inquisitorial proceedings, in which the court takes over the presentation and testing of evidence, provide a poor solution to the problem. Contrary to what some assume, no modern system in Europe or elsewhere employs such inquisitorial process in civil cases. Both the common law and civilian systems embrace an adversarial model because a judge who undertakes the development of party case is bound to lose impartiality long before pronouncing judgment. Both systems recognise therefore that justice, like all other specialist services, can only be delivered by trained professionals. This is why legal representation is mandatory in civil proceeding (other than small claims) in all major European jurisdictions. If legal representation is mandatory in systems considered inquisitorial, how can an adversarial system manage without it?

The School of Heretics: Academic Condemnation at the University of Oxford, 1277-1409 by Andrew E. Larsen (review)

The School of Heretics: Academic Condemnation at the University of Oxford, 1277-1409. By Andrew E. Larsen. [Education and Society in the Middle Ages and Renaissance, Vol. 40.] (Leiden: Brill. 2011. Pp. xii, 322. $166.00. ISBN 978-90-04-20661-8.)Andrew E. Larsen's study is an excellent historical and doctrinal analysis of accusations of heresy leveled against various academicians related to the University of Oxford during the period in question.The author has carefully designated the parameters of his study so as to limit its scope and purview.Regarding heresy and heretics, there was a prevailing distinction among falsity, error, and heresy alluded to by Henry of Ghent in his Quodlibet X, q. 5 (Leuven, 1981, p. 12). Likewise, suspects were to be given three warnings before being brought to inquisitorial proceedings (p. 151), a rule to be found somewhere in canon law. The author, understandably, struggles a bit with how to translate the Latin fama, deciding on rumor (p. 15); repute, reputation, as-widely-viewed might be alternatives but hardly more satisfying.References to the Lollards occur periodically in Larsen's work. In addition to the individuals considered to be Lollards mentioned in the index, it would have been helpful for those unfamiliar with this period of history to learn what ideas or views earned them the label.With respect to the controversy regarding the plurality/unicity of forms (pp. 27-29, 46), there was a refinement that seems to have escaped the purview of the author-namely, the opinion that there were multiple grades of a single form. Whether this opinion can initially be traced to John Pecham, we may never know, since his treatise De gradibus formarum (once housed in the Merton library) is now lost. Positing grades of a single form responds to St. Thomas Aquinas's argument that a plurality of forms leads to a sort of metaphysical schizoid in any given individual being.The grades theory was subsequently supported by Roger Marston and opposed by Giles of Rome in his Contra gradus formarum (Venice, 1500).Regarding the career of Blessed John Duns Scotus (pp. 64-65), details may be found in William A. Frank and Allan B. Walter's volume on Duns Scotus Metaphysician (West Lafayette, IN, 1995) as well as in Antonie Vos's monumental treatment in The Philosophy of John Duns Scotus (Edinburgh, 2006). Regarding the allusion to Walter Chatton's view that the brouhaha about the various signa originis in the divinity had come to be considered frivo lous on both sides of the channel, this can now be found in the critical edition (Toronto, 2002).Allusion is made to Ockham's treatises on the Eucharist (p. 77). These have been edited in the critical edition by Carl A. …

Between Christian and Jew: Conversion and Inquisition in the Crown of Aragon, 1250–1391 by Paola Tartakoff (review)

Reviewed by: Between Christian and Jew: Conversion and Inquisition in the Crown of Aragon, 1250–1391 by Paola Tartakoff Milan Žonca Tartakoff, Paola, Between Christian and Jew: Conversion and Inquisition in the Crown of Aragon, 1250–1391 (Middle Ages), Philadelphia, University of Pennsylvania Press, 2012; hardback; pp. 233; 3 illustrations; R.R.P. US$55.00, £36.00; ISBN 9780812244212. In the last forty years, historians have been industrious in their search for evidence of medieval attitudes to outsiders. Heretics, Jews, lepers, and prostitutes have all been assigned a place on the map of medieval Christian society. The intricacies of their social and cultural interaction with the majority have been explored and the hermeneutical images of otherness in Christendom identified and deconstructed. But if otherness lies in the eye of the beholder, then it is also fluid and ambiguous, transcending binary models of ‘us’ and ‘them’. Few groups represent this ambiguity better than Jewish converts to Christianity: embodying the hopes and fears, aspirations and repulsions of Jews and Christians alike, their journeys towards (re)integration were often arduous. While scholars have discussed the stories of some high [End Page 280] profile converts such as Hermann of Cologne or Paul Christian, ‘ordinary converts’ have not yet received systematic attention. The recent monograph by Paola Tartakoff attempts to rectify this situation. Tartakoff’s book revolves around one central episode: a peculiar case of a baptized Jew named Pere, who was almost burned at stake for blasphemy by the justicia in Calatayud in 1341. It was only thanks to the last-minute intervention of the Dominican friar Sancho de Torralba that Pere escaped execution. When interrogated by Fra Sancho, Pere confessed that he had acted under the influence of a group of Jews from a nearby village. Upon hearing about his conversion, they convinced him that the only way to atone for this great sin was to publicly renounce Christianity and suffer the inevitable death at stake. Only then, they claimed, would his soul be ‘safe with God’. Instead of dying as a Jewish martyr, Pere became crown witness in the inquisitorial proceedings aiming to identify and punish the group of ‘Judaizers’ who targeted converts and strove to bring them back to the Jewish fold. Tartakoff examines closely the surviving testimonies of three Jews whom Pere identified as the initiators of his apostasy: the couple Janto and Jamila Almuli, and Jucef de Quatorze. All three denied any involvement in Pere’s apostasy, that is, at least until more ‘efficient’ methods of interrogation were employed. Testimonies recorded by inquisitions are notoriously difficult to interpret, but Tartakoff approaches her sources with commendable caution, using them as a springboard to broader analyses of the phenomenon of Jewish conversion in the Kingdom of Aragon and associated Christian anxieties. In the first two chapters, she maps Christian preoccupations with harmful Jewish influence in Christian society and outlines the formal characteristics of inquisitorial proceedings dealing with the Jews. In the second part of the book, Tartakoff focuses on the converts themselves, examining their background prior to baptism and their lives as Christians. In the last two chapters, she turns to Jewish attitudes to apostates and the efforts to bring them back to Judaism. Tartakoff demonstrates that many converts chose baptism to avoid punishment by Jewish authorities, circumvent the prohibitions regarding marriage and adultery, or to escape poverty and violence. As a result, Christians often doubted the sincerity of Jewish conversions and their suspicion became a self-fulfilling prophecy when converts who failed to integrate into Christian society decided to return to Judaism. In Jewish communities, apostasy had a profound impact on marriages and economic relations. It also produced considerable tensions: many Jews publicly jeered at and insulted apostates. Some Jews, however, continued to interact with the apostates and tried to persuade them to return to the Judaism, employing a variety of rhetorical tools to present the deficiencies of Christian faith. [End Page 281] This book is a valuable collection of carefully interpreted material on Jewish conversion in the Kingdom of Aragon approached with awareness of the complex social and religious implications of Jewish conversion. The compact size of the book and the selection of sources leave some questions unaddressed...

From 'Adversarial v Inquisitorial' to 'Active, Enabling, and Investigative': Developments in UK Administrative Tribunals

By contrast, in inquisitorial proceedings, the judge assumes a proactive role of identifying issues and gathering evidence and also takes full control of the proceedings and governs the participation of the parties. The term “inquisitorial” is though nebulous and can carry a range of possible meanings. A soft inquisitorial approach may mean that the judge can make inquiries by asking questions or, with the assistance of the parties, investigate the issues. By contrast, a fully inquisitorial

The Irishman, the Gypsy, and 'the Olivares Girl'

This article concerns Inquisitorial proceedings conducted in Madrid by the Toledo Inquisition between August 1624 and January 1625. Various witness statements refer to rumours of the machinations at court centred on the Count of Olivares's controversial plans to marry his fourteen-year-old daughter Doña María de Guzmán y Zúñiga to Ramiro Núñez de Guzmán, Marquis of Toral. In so doing, they also paint a fascinating picture of superstition and the predatory activities of Spain's gypsies, not just at the margins, but even, perhaps, at the centre of society in the Madrid of the day.

Being against, being with: Marrano self-identification in inquisitorial Spain (Sixteenth–Eighteenth Centuries). An essay

By the end of the sixteenth century, the economic situation and the Iberian Union (1580–1640) pushed hundreds of Portuguese conversos (New Christians of Jewish descent) to emigrate to Spain. This influx led to a revival of crypto-Judaism and a resurgence of inquisitorial proceedings against conversos. This essay examines the process of identity construction among those crypto-Jews or marranos, both as individuals and as a group. Crypto-Judaism was more related to a social practice than a theological corpus; it was based on a culture of mobility (geographical, socio-economic) that constantly reshaped the markers of difference. Crypto-Jews were mainly those who wanted to be, and were, perceived as such through opposition to an “Other”—sometimes the Jew of the Diaspora (the nacao), sometimes the Catholic Old Christian, sometimes the image of themselves that they saw reflected back from those around them. But the fear of betrayal or unmasking, stimulated by the Inquisition and exacerbated by the great mobility of the conversos, was also foundational to their identity. It gave the marrano group, despite its great religious and socio-economic diversity, the characteristics of certain secret societies where shared solidarities and collective identity are fundamental.

Review Essay – The Criminal Judge as Modern Inquisitor

The term “inquisition” has had bad press for a long time. Comparably bad is the reputation of the inquisitorial system, a judicial model that dominated German criminal law enforcement until the beginning of the 19th century. A distinctive feature of inquisitorial proceedings is the eminently strong position of the inquisitor who unifies the functions of an investigator, a prosecutor, and a judge in one and the same person. Although the codes of criminal procedure in the German states – which in 1871 formed the Kaiserreich (German Empire of 1871-1918)– included detailed rules of evidence to prevent arbitrary investigations, at the beginning of the 19th century it was a common opinion that these control mechanisms were practically insufficient and that the inquisitorial system ought to be replaced by a judicial model, which would guarantee more effective protection of the defendant against unjustified conviction.

Reformulation and Conflict in the Witness Examination: The Case of Public Inquiries

This paper focuses on the development of witness examination as an argumentative dialogue between legal professionals and lay-people, considering in particular the case of Public Inquiries in Great Britain. This paper discusses the retention of traces of the adversarial system, typical of Common Law trials, in this type of inquisitorial proceedings, stressing on how counsels exploit some linguistic features to control both the form and the ideational content of the exchange as well as the power relationship with the witness. The analysis is carried out on a corpus of 15 days of witness examination transcripts (507,346 words) collected from three different Public Inquiries, namely Bloody Sunday Inquiry (Northern Ireland), Shipman Inquiry (England), and Cullen Inquiry (Scotland), to achieve a wider perspective on Common Law administrative justice. The study is based on a discourse and genre analytic approach for the macro-analysis of Public Inquiries in the context of courtroom discourse and of witness examination as a genre that develops within this discourse framework. Subsequently, a micro-analysis of the linguistic features used by counsel in questions to argumentatively shape the content and the form of the exchange is provided. We also take into consideration the role of metadiscourse (textual and interpersonal), repetitions and reformulations. Preliminary results show that these linguistic features provide valuable evidence for the hypothesis that the adversarial side of the argumentative dialogue between legal professionals and lay-people during the witness examination of Public Inquiries is retained.

El Cristo Crucificado de Velázquez: trasfondo histórico-religioso

The author establishes the hypothesis, based on verifiable historical events, that Velazquez's Christ on the Cros was commissioned between the summer and autumn of 1632 by Jeronimo de Villanueva, when the inquisitorial proceedings in which he had been implicated were discontinued. This commision was not, however, imposed as penitence by the Holy Office; it was one among many expiatory acts organized in Madrid occasioned by the desecration of a Crucifix by Portuguese Jews, condemned to die in a public Auto-da-fe in July of that year.

An introspective view of the inquisitorial trial

The day I stumbled on Trial in Germany, I felt a call to arms. The piece of incriminating evidence was there. Time and again, common law lawyers observe the civil law system with the curiosity of tourists who visit the Tower of Pisa. Eventually, they offer advice on how we could straighten it up. In the present case, an American professor witnesses a criminal under German law. His reflections also encompass the court dynamics. This approach is original for Europeans, strangers to the concept of Court TV or to gavel media reports. The commentary unfolds on three levels. The criminal becomes the bridge to a trial of the German judiciary and the German code of penal procedure. The author's conclusions are somewhat less than favorable, both on the outcome of the case and its technicalities. Under the circumstances, offering a European perspective appears the natural thing to do. A long-time adept of comparative law, I thrive on opportunities to referee legal systems in a fair and square confrontation. In the gladiatorial contest between the common law system, with the United States on one side, and the Continental system, with Germany on the other side, the stakes are high. To be totally honest, it is not solely the desire for equilibrium that motivates me. The deeper reason goes back to my experience as a law student in the United States. I remember comparative law classes as exercises in great frustration. A fervent believer in the values of the continental system, I felt under constant attack from my American colleagues. Discussions appeared to me to be a pretext for emphasizing the superiority of my guest country's legal accomplishments. You need only mention adversarial versus inquisitorial proceedings to feel a chilling breeze on the back. Every reasonable person chooses an encounter of equals over a rerun of the Spanish Inquisition. When I came out of the closet not solely as a sitting judge in the civil law tradition, but also as one who practiced during a dictatorship, I became a downright outcast. Professors seemed oblivious to the cold war unraveling under their very eyes. The only comment I received on my exam paper read: Why are you so angry? Subsequent exposure to the French press shook away some of the victim status in which I was self-righteously indulging. To provide a glimpse of the bitter taste of European prejudice, consider an interview of Daniel Zagury, an expert psychiatrist at the Appeals Court in Paris, offering explanations on why the majority of serial killers are American. His first argument is geographical: large spaces encourage serial criminals. His other argument--of questionable historical merit--follows these lines: In the United States, the historically recent conquest of the New World rendered precarious the passage from a state of wilderness to civilization and a reversal remains always possible. Puritanism and sexual hypocrisy probably also pay an important role: they provide a permanent manichean confrontation of good and evil.(1) The casual manner in which personal fantasies stand for expertise made me aware that when it comes to legal issues, we would rather be patriots than scientific researchers. Language bears witness to such internalized biases. Take, for instance, the antonyms and foreign law. In common language domestic suggests the family realm or things we know and control. The opposite is the unexplored, the dangerous, the threatening. Following this line of thought, a animal may be contrasted with a wild beast. Remembering the times when crossing the ocean was an adventure, we can detect the opposition between and international flights. We might now live in the era of the global village, but language still preserves the memory of ancient fears. As it happens, fear of the unknown leads to prejudice. The same seems true in comparative law. When emotions trump reason, the expectation of a reciprocal profitable exchange is eluded. …

Answering “the Known Men”: Bishop Reginald Pecock and Mr. Richard Hooker

There are both striking similarities and significant differences between the Lollards of the fifteenth century and the radical Puritans of the sixteenth. Both rejected the authority of the established church in England, and both suffered for such boldness. With the passage of De heretico comburendo in 1401 the so-called Wycliffites were liable to inquisitorial proceedings and punishments. Lollards were now felons as well as heretics. In 1406, by means of a supplement to the 1401 legislation, the laymen in Parliament at last took heed of the warning from the churchmen that confiscation of church possessions threatened all lordship, secular as well as spiritual. Under a constitution drafted at the Oxford Assembly from November to December, 1407 and republished at St. Paul's in 1409, any preacher other than a priest in his own parish was required to obtain a license from the ordinary or the archbishop in order to preach. Arundel further decreed that such preachers were to speak only on the subjects set forth in Peckham's constitution, Ignorantia sacerdotum. As the chief legal instrument of this English Inquisition, De heretico comburendo remained in effect until set aside by Henry VIII. It was later revived by Mary, and finally repealed by Elizabeth.