langer, plea bargaining

Volume 45, Number 1, Winter 2004

From Legal Transplants toLegal Translations:

The Globalization of Plea Bargaining and theAmericanization Thesis in

Criminal Procedure

Mximo Langer

I. Introduction

Since the end of the Second World War, and particularly following theend of the Cold War, the American legal system arguably has become themost inuential legal system in the world.1 American inuences on the legalsystems of other nations have ranged from general inuences on jurispruden-tial approaches to law (e.g., legal realism and pragmatism, law and econom-ics, rights discourse, etc.)2 to inuences on specic legal areas (e.g., constitu-

Acting Professor of Law, UCLA School of Law. S.J.D. Candidate, Harvard Law School, 2004; LL.B.,

University of Buenos Aires Law School, 1995.I would like to thank Gianmaria Ajani, Bill Alford, Arthur Applbaum, Tal Ben-Shachar, Scott Cum-

mings, Mirjan Damaka, Sharon Dolovich, Vic Fleisher, Stephen Gardbaum, Latonia Haney, Alon Harel,Ben Hett, Duncan Kennedy, Gia Lee, Alejandro Loritee, Stefano Maffei, Bill McGovern, Martin ONeill,Sara Olack, Eric Orts, Randy Peeremboom, Kal Raustiala, Arthur Rosett, Gary Rowe, Yoav Sapir, HaniSayed, Roy Schondorf, Patrick Shin, David Sklansky, Carol Steiker, Richard Steinberg, Bill Stuntz, LloydWeinreb, Adam Winkler, and participants in the UCLA School of Law Faculty Workshop, in theSJD/JSD/PhD 2002 Conference at Harvard Law School, and in the conference Law and Economic De-velopment: Critiques and Beyond organized by the European Law Research Center at Harvard LawSchool, for helpful comments on earlier drafts. I would especially like to thank Carol Steiker, MirjanDamaka, Phil Heymann, Duncan Kennedy, David Sklansky, and the UCLA School of Law Faculty fortheir encouragement and support. Guillermo Bleichman, Janet Halley, Esther Liberman, and DorisSommer gave me useful bibliographical advice on translation studies. Joanne Jackson and SatyanandSatyanarayana did excellent editing work. Jason Kleiman provided very valuable research assistance. Ialso gratefully acknowledge the support of the Byse Fellowship at Harvard Law School, the HarvardCenter for Ethics and the Professions, the Organization of American States, and the Rockefeller Centerfor Latin American Studies at Harvard University. Myriam Hess, Ben Hett, and Laura Elbert helped mewith some of the German texts. Of course, any mistakes are my responsibility.

1. See, e.g., Duncan Kennedy, Three Legal Globalizations (2001) (unpublished manuscript on le withthe Harvard International Law Journal); Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemonyand the Latin Resistance, 10 Ind. J. Global Legal Stud. 383 (2003); Ugo Mattei, Why the Wind Changed:Intellectual Leadership in Western Law, 42 Am. J. Comp. L. 195 (1994); Wolfgang Wiegand, Americanizationof Law: Reception or Convergence?, in Legal Culture and the Legal Profession 137 (Lawrence M.Friedman & Harry N. Scheiber eds., 1996); Wolfgang Wiegand, The Reception of American Law in Europe,39 Am. J. Comp. L. 229 (1991).

2. See, e.g., Kennedy, supra note 1; Mattei, Why the Wind Changed, supra note 1.

2 Harvard International Law Journal / Vol. 45

tional law,3 tax law,4 securities law,5 corporate law,6 patent law,7 interna-tional commercial arbitration,8 etc.); from legal education (e.g., a creditssystem for particular courses, or certain post-graduate studies leading to anLL.M. degree)9 and the structure of the legal profession (e.g., large lawrms10 or the valorization of private practice11) to the reform of the judici-ary;12 from specic legal doctrines or legal tools (e.g., constitutional exclu-sionary rules,13 the doctrine of actual malice in the freedom of speech andof the press,14 class actions,15 etc.) to institutional arrangements such as theseparation of powers and judicial review.16 These undeniable American inu-ences on other legal systems have led a number of commentators, both in theUnited States and abroad, to announce that a substantial number of legalsystems, both at the national and the international levels, may graduallycome to resemble or mimic the American legal system and thus become

3. See, e.g., Constitutionalism and Rights: The Inuence of the United States Constitu-

tion Abroad (Louis Henkin & Albert J. Rosenthal, 1990); Joan Davison, Americas Impact on Constitu-tional Change in Eastern Europe, 55 Alb. L. Rev. 793 (1992). For a work cautioning against the adoptionof the U.S. constitutional model by other countries, see Jonathan Zasloff, The Tyranny of Madison, 44UCLA L. Rev. 795 (1997).

4. Miranda Stewart, Global Trajectories of Tax Reform: The Discourse of Tax Reform in Developing andTransition Countries, 44 Harv. Intl L.J. 139, 151 (2003).

5. See, e.g., Frederick Tung, Passports, Private Choice, and Private Interests: Regulatory Competition and Co-operation in Corporate, Securities, and Bankruptcy Law, 3 Chi. J. Intl L. 369 n.43 (2002).

6. Paul von Nessen, The Americanization of Australian Corporate Law, 26 Syracuse J. Intl L. & Com.239 (1999).

7. See, e.g., Julia Alpert Gladstone, Why Patenting Information Technology and Business Methods is NotSound Policy: Lessons from History and Prophecies for the Future, 25 Hamline L. Rev. 217, 229 (2002).

8. Yves Dezalay & Bryant G. Garth, Dealing in Virtue: International Commercial Arbi-tration and the Construction of a Transnational Legal Order (1996).

9. See, e.g., Wiegand, Americanization, supra note 1, at 13839; Wiegand, The Reception, supra note 1, at23233.

10. See, e.g., Note, The Protectionist Bar against Foreign Lawyers in Japan, China and Korea: Domestic Con-trol in the Face of Internationalization, 16 Colum. J. Asian L. 385, 389 (2003) (The growing presence oflaw rms in Japan has encouraged a further Americanization of legal practice, but not without continu-ing restrictions.).

11. See, e.g., Bernard Michael Ortwein II, The Swedish Legal System: An Introduction, 13 Ind. Intl &Comp. L. Rev. 405 (2003) (n.247: Professor Modeer maintains that Americanization of the Swedishlegal profession has resulted in an increase in the number of law school graduates who seek membershipinto the Swedish Bar Association, hoping to facilitate a career in the private sector of law practice.).

12. See, e.g., Hiram E. Chodosh, Reforming Judicial Reform Inspired by U.S. Models, 52 DePaul L. Rev.351 (2002).

13. Argentina, Canada, Italy, and Spain, among other countries, have adopted a version of the Ameri-can exclusionary rule regarding evidence obtained in violation of constitutional rights. On the Canadianexperience, see, for example, James Stribopoulos, Lessons from the Pupil: A Canadian Solution to the AmericanExclusionary Rule Debate, 22 B.C. Intl & Comp. L. Rev. 77 (1999).

14. For an analysis of the reception of this doctrine by the Supreme Court of Argentina, see, for exam-ple, Eduardo A. Bertoni, Libertad de expresin en el estado de derecho 7282 (2000).

15. Antonio Gidi, Class Actions in BrazilA Model for Civil Law Countries, 51 Am. J. Comp. L. (2003)(pointing out how Anglo-American class actions inuenced Brazilian developments through the work ofItalian scholars).

16. See, e.g., Erhard Blankenburg, Changes in Political Regimes and Continuity of the Rule of Law in Ger-many, in Herbert Jacob et al., Courts, Law, and Politics in Comparative Perspective 249, 308(1996) [hereinafter Courts, Law, and Politics].

2004 / Legal Translations of American Plea Bargaining 3

Americanized.17 Other commentators, while acknowledging the predomi-nant inuence of the American legal system, have stopped short of assertingthat American inuence is actually recreating American legal practice innon-American jurisdictions.18

In this Article, I caution against the former thesis of Americanization (thestrong thesis) through an examination of the introduction of American-style plea bargaining in four civil law countriesGermany, Italy, Argentina,and France.19 The inuence of American plea bargaining in all four of thesejurisdictions is undeniable. Despite this inuence, however, the importationof plea bargaining into these jurisdictions is not likely to reproduce an Ameri-can model of criminal procedure. Each of these jurisdictions has adopted aform of plea bargaining that contains differenceseven substantial differ-encesfrom the American model, either because of decisions by the legalreformers in each jurisdiction or because of structural differences betweenAmerican criminal procedure and the criminal procedures of the civil lawtradition. Consequently, some civil law versions of plea bargaining have notresembled the American practice since their inception. In addition, thestructural differences between the American adversarial conception of crimi-nal procedure and the continental European and Latin American inquisito-rial conception of criminal procedure are so deep that individual reformsinspired by American models are unlikely to push these inquisitorial crimi-nal procedures in the direction of the American adversarial system. Finally,in each of these civil law jurisdictions, some legal actors have distrusted orresisted the adoption of plea bargaining and other consensual mechanisms,either because reforms have threatened their traditional powers within theinquisitorial criminal process or because of their differing legal culture. Thisdistrust and resistance has also played a role in neutralizing the potential forAmericanization inherent in some of these criminal procedure reforms.

Although the factors hindering Americanization have been present ineach of the civil law jurisdictions examined, they have played out differentlyin different jurisdictions. Not only has each of these jurisdictions adopted aversion of plea bargaining different from the American model, but also, each

17. See, e.g., R. Daniel Keleman & Eric C. Sibbitt, The Americanization of Japanese Law, 23 U. Pa. J.

Intl Econ. L. 269 (2002); Paul von Nessen, supra note 6; Wiegand, The Reception, supra note 1, at 24648 (comparing the Americanization of current European legal systems to the reception of the ius com-mune in the Middle Ages in that continent).

18. See, e.g., Gidi, supra note 15; Kennedy, supra note 1; Stephen Zamora, The Americanization of Mexi-can Law: Non-Trade Issues in the North American Free Trade Agreement, 24 Law & Poly Intl Bus. 391(1993) (discussing how Mexicos labor and environmental laws, and related enforcement mechanisms,differ from those of the United States, despite pressures on the Mexican legal system to mimic that of theUnited States).

19. I have chosen these four jurisdictions for two reasons. First, they have traditionally been consid-ered inuential on other countries (France, Germany, and Italy worldwide, and Argentina in LatinAmerica). Thus, to the extent that they still retain part of their ascendance over other civil law jurisdic-tions, they may provide a good proxy as to what may happen in a good part of the civil law. Second, eachof these jurisdictions provide a different version of how plea bargaining may be imported by civil lawcountries and what different effects these different versions may produce in each of them.


one of these jurisdictions has adopted forms of plea bargaining different fromone another. The German, Italian, Argentine, and French plea bargains dif-fer substantially amongst themselves because of decisions by legal reformersin each of these countries, the differing ways in which the practice has beenintroduced, and the resistance it has generated. Given the differences amongthese plea bargains, the adoption of some form of plea bargaining in thesejurisdictions may produce different transformations or effects in each juris-diction. Therefore, the potential inuence of American plea bargaining oncivil law jurisdictions may not be that civil law systems will gradually re-semble the American legal system, but rather that they may begin to differamongst themselves in aspects on which, until very recently, they have beenrelatively homogeneous. In other words, the paradoxical effect of Americaninuence on the criminal procedures of the civil law tradition may not beAmericanization, but rather fragmentation and divergence within the civillaw.

Before beginning the concrete analysis of these importations, it is neces-sary to address two issues. First, in order to explain and trace the transforma-tions that American plea bargaining has undergone since rst adopted bythese civil law jurisdictions, it is necessary to explain the historical differ-ences between the American adversarial criminal procedure and the inquisi-torial criminal procedures of the civil law tradition. The adversarial and theinquisitorial systems can be understood not only as two different ways todistribute powers and responsibilities between various legal actorsthe de-cision-maker (judge and/or jury), the prosecutor, and the defensebut alsoas two different procedural cultures and thus, two different sets of basic un-derstandings of how criminal cases should be tried and prosecuted.20 Themajor difference between the procedural cultures for the purposes of thisArticle is that, whereas the adversarial system conceives criminal procedureas governing a dispute between two parties (prosecution and defense) beforea passive decision-maker (the judge and/or the jury), the inquisitorial systemconceives criminal procedure as an ofcial investigation, done by one ormore impartial ofcials of the state, in order to determine the truth.21

20. In this sense, it is important to emphasize from the outset that I will use the expression adver-

sarial system as a descriptive category, not as a normative ideal. As a normative ideal, the expression issometimes used in the United States to refer to a criminal procedure where the rights of the defendant arefully respected, see, e.g., Mirjan Damaka, Adversary System, 1 Encyclopedia of Crime and Justice24, 25 (Sanford H. Kadish ed., 1983), and the epitome of the adversarial system is the trial by jury.However, in this Article, I will use the expression adversarial system as a descriptive category throughwhich I will explain the current features of American criminal procedure in opposition to the currentfeatures of criminal procedure in continental Europe and Latin America. Similarly, the expression in-quisitorial system is sometimes used in a negative way to refer to authoritarian conceptions of criminalprocedure. But in this Article, I will use the expression inquisitorial system only as a descriptive category.

21. As I explain later, I do not conceive of the adversarial and inquisitorial systems as homogenousprocedural cultures. But these two conceptions have been predominant in the ve jurisdictions I willexamine in this Article, and thus they are the most relevant for our study.


Given that these cultural differences have been overlooked by traditionalcomparative criminal procedure scholarship, I propose in this Article a newtheoretical framework to reconceptualize the adversarial and the inquisitorialsystems. This new theoretical framework will be useful not only to describethe differences between the criminal procedures of the common and civil lawtraditions but also to analyze some of the transformations that plea bargain-ingand potentially other legal institutionsmay undergo when trans-ferred from one system to the other. This theoretical framework will also beuseful in assessing Americanization, as brought about by the adoption ofsome form of plea bargaining in these four civil law criminal procedural sys-tems, because it will provide a clear axis of reference in comparing the dif-ferences between the adversarial and the inquisitorial systems, and thus, inevaluating whether the latter are moving in the direction of the former.

Second, it is necessary to question and reassess how we think about thecirculation of legal ideas between legal systems. The metaphor of the legaltransplant has been the main device used by comparative law scholars andpractitioners when analyzing the importation of foreign legal practices.22

This metaphor, however, has its shortcomings. Its chief problem is that itconveys the notion that legal ideas and institutions can simply be cut andpasted between legal systems. Thus, this metaphor fails to account for thetransformation that legal ideas and institutions may undergo when they aretransferred between legal systems. In this Article, I propose the metaphor ofthe legal translation as an alternative heuristic device to employ whenanalyzing the transfer of legal ideas and institutions between legal systems.The adversarial and the inquisitorial systems, understood as two differentprocedural cultures, can be understood as two different systems of produc-tion of meaning. Thus, the transfer of legal institutions from one system tothe other can be understood as translations from one system of meaning tothe other. Specically, the transformations that plea bargaining has under-gone when transferred to these civil law jurisdictions can be understood ei-ther as decisions taken by the translators (i.e., legal reformers) or as a

22. See generally Daniel Berkowitz et al., Economic Development, Legality, and the Trans-

plant Effect (Center for International Development at Harvard University, Working Paper No. 39,2000, available at http://www.cid.harvard.edu/cidwp/039.htm (last visited Nov. 25, 2003) (on le withthe Harvard International Law Journal); Edgardo Buscaglia & William Raiff, Law and Eco-nomics in Developing Countries 1419, 3154 (2000); Alan Watson, Legal Transplants: AnApproach to Comparative Law 21 (2d ed. 1993); Gianmaria Ajani, By Chance and Prestige: LegalTransplants in Russia and Eastern Europe, 43 Am. J. Comp. L. 93 (1995); Ugo Mattei, Efciency in LegalTransplants: An Essay in Comparative Law and Economics, 14 Intl Rev. L. & Econ. 3 (1994); Jonathan M.Miller, A Typology of Legal Transplants: Using Sociology, Legal History and the Argentine Example to Explain theTransplant Process, 51 Am. J. Comp. L. (forthcoming Fall 2003) (on le with Harvard International LawJournal); Loukas A. Mistelis, Regulatory Aspects: Globalization, Harmonization, Legal Transplants and LawReformSome Fundamental Observations, 34 Intl Law. 1055 (2000); Frederick Schauer, The Politics andIncentives of Legal Transplantation, in Governance in a Globalizing World, 253 (Joseph S. Nye Jr. &John D. Donahue eds., 2000); Jonathan B. Weiner, Responding to the Global Warming Problem: SomethingBorrowed for Something Blue: Legal Transplants and the Evolution of Global Environmental Law, 27 EcologyL.Q. 1295 (2001).


product of the structural differences that exist between the adversarial andinquisitorial languages.

In this Article, I show that the inuence of American criminal procedureseems to conrm the weak version of the Americanization thesis and that thestrong version of the Americanization thesis is inapplicable, or, at least,overly simplistic, with respect to criminal procedure. Despite the inuenceof American plea bargaining on civil law jurisdictions, the cultural differ-ences between the adversarial and the inquisitorial systems are too deep tobe overcome by a single American-inspired reform or even a substantialnumber of American-inspired reforms. Furthermore, given that each of thesecivil law jurisdictions has translated plea bargaining in a different way, theultimate effect of this American inuence may end up being a fragmentationand divergence, rather than Americanization, within civil law criminal pro-cedure. The four jurisdictions examined in this Article share a similar pre-dominant procedural culture that regards criminal procedure as an ofcialinvestigation conducted by impartial ofcials. However, each jurisdictionhas adopted a different version of plea bargaining, and thus, these differentreforms may lead them in different directions.

The structure of the Article is as follows. In Parts II and III, I propose anew theoretical framework to conceptualize the adversarial and the inquisi-torial systems. The main idea that I defend here is that these categoriesshould be understood not only as two different ways to arrange powers andresponsibilities between the main actors of the criminal process (judges,prosecutors, defense attorneys, etc.), but also as two different procedural cul-tures. Part IV shows the inuences that the Anglo-American conception ofcriminal procedure has had on the inquisitorial criminal procedure of conti-nental Europe and Latin America in recent decades. Part V discusses theproblems presented by the metaphor of the legal transplant as a heuristicdevice in analyzing the circulation of legal institutions between legal sys-tems. In its place, I offer the metaphor of the legal translation as a morenuanced and productive heuristic device to think about these issues. Thetransferred legal practiceplea bargaining in this instancecan be thoughtof as the text that has been translated from one languagethe adversar-ial system of the United Statesto another languagethe inquisitorialsystems of Germany, Italy, Argentina, and France. Part VI explains how pleabargaining could have a potential Americanization effect on civil law juris-dictions if fully accepted by these systems. My argument here is that Ameri-can plea bargaining assumes an adversarial conception of criminal procedure,and thus, if faithfully translated and fully accepted by civil law jurisdictions,could advance the American conception of criminal procedure in inquisito-rial jurisdictions. Parts VII, VIII, IX, and X analyze the German, Italian,Argentine, and French plea bargains, and also explain not only why eachof these countries has translated American plea bargaining but also why eachof them has chosen to translate the practice in a different manner. Here, Ialso demonstrate how the inquisitorial cultural conception of criminal pro-


cedure has been one of the central reasons why American plea bargains havebeen both transformed and resisted in these jurisdictions. Finally, Part XIdraws together my central argument: Given that each of the jurisdictionsexamined has translated plea bargaining in a different way, American inuencesmay end up producing the fragmentation and divergence, rather than theAmericanization of the criminal law procedures of the civil law tradition.

II. Re-conceptualizing the Adversarial and theInquisitorial as Theoretical Categories

Traditionally, scholars of comparative law and comparative criminal pro-cedure have employed the theoretical categories of adversarial and inquisi-torial through two primary approaches:23 the lowest-common-denominatorapproach and the ideal-type approach.24

According to the lowest-common-denominator approach, the adversarialand the inquisitorial categories simply contain the features common to allcriminal procedure systems of the common and civil law, respectively.25 Forinstance, the trial by jury or the hearsay rule would be features of the adver-sarial system if all common law jurisdictions included these elements at acertain moment in time. This approach presents several problems. First,each time a particular jurisdiction leaves aside a feature that was part of thisminimum common denominator, the proponents of the approach have thefollowing dilemma: either they have to modify the content of the adversarialand the inquisitorial categories, or they have to remove this jurisdictionfrom either the adversarial or the inquisitorial system. The lowest-common-denominator approach does not provide a clear answer for dealing with thisdilemma.26 Second, it is also not clear how to distinguish between the pri-

23. The use of the expressions adversarial and inquisitorial has not been limited to comparative

criminal procedure. For descriptions of other uses of these terms, see Mirjan Damaka, Adversary System,in 1 Encyclopedia of Crime and Justice 24 (Sanford H. Kadish ed., 1983); Malcolm Feeley, TheAdversary System, in Encyclopedia of the American Judicial System 753 (Robert J. Janosik ed.,1987); Mximo Langer, La Dicotoma acusatorio-inquisitivo y la importacin de mecanismos procesales de latradicin juridical anglosajona. Algunas reecciones a partir del procedimiento abreviado, in El ProcedimientoAbreviado 97, 10211 (Julio B. J. Maier & Alberto Bovino eds., 2001).

For studies of other models and categories that have been used for analyzing different types of criminalprocedure, see, for example, Herbert L. Packer, The Limits of the Criminal Sanction 149246(1968); Peter Arenella, Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts Com-peting Ideologies, 72 Geo. L.J. 183 (1983); Mirjan Damaka, Models of Criminal Procedure, 51 Zbornik(Collected Papers of Zagreb Law School) 477 (2001); John Grifths, Ideology in Criminal Procedure,or a Third Model of the Criminal Process, 79 Yale L.J. 359 (1970); Erik G. Luna, The Models of CriminalProcedure, 2 Buff. Crim. L. Rev. 389 (1999).

24. See generally Mirjan R. Damaka, The Faces of Justice and State Authority 46 (1986).25. See Mirjan Damaka, Adversary System, supra note 20, at 28 (giving as an example of this approach;

Joachim Herrmann, Various Models of Criminal Proceedings, 2 S. Afr. J. Crim. L. & Criminology 3, 46(1978). In order to reject the idea that the exclusion from trial of illegally obtained evidence is not adening feature of the adversarial approach, Prof. Herrmann mentions that the exclusionary rule has notbeen adopted by all Anglo-American jurisdictions, and that it has been adopted in the legislation ofseveral European countries. Id. at 18.)

26. See Damaka, supra note 24, at 5.


mary and secondary features of both systems. In other words, the lowest-common-denominator approach does not provide an answer to why certainfeatures are more relevant than others in distinguishing the two systems.27

Third, this approach does not seem useful in analyzing hybrid systems,which have been inuenced by both legal traditions, and perhaps also byother legal traditions of the world. These mixed systems are very importantphenomena to study now, not only because the incidence of hybrid nationalsystems is greater than in the past due to mutual inuences between thecommon and the civil law, but also in order to understand internationalcriminal tribunals, from Nuremberg to the International Criminal Court,where rules and legal professionals from different legal traditions meet andinteract.28 Finally, this approach does not seem to provide a useful theoreti-cal framework to deal with the phenomena of legal inuences and legaltransplantation because the most this approach can offer when a legal prac-tice (such as plea bargaining) is transferred from an adversarial to an inquisi-torial jurisdiction is either that the absence of this institution is no longer acharacteristic feature of the inquisitorial system, or that the specic receiv-ing jurisdiction is no longer a part of the inquisitorial legal family, thusleading us back to the rst problem of the lowest-common-denominatorapproach.

The second main approach to comparative criminal procedure has been toconceptualize the adversarial and the inquisitorial as Weberian ideal-types.29

These models do not exactly exist in any historical legal system, but whilethe common law jurisdictions would be closer to the adversarial type, thecivil law jurisdictions would be closer to the inquisitorial type.30

This theoretical conception is much more promising than the lowest-common-denominator approach and addresses many of its shortcomings. For

27. See id.28. For analyses of the procedure and rules of evidence of the different international criminal jurisdic-

tions based on the dichotomy of the adversarial and the inquisitorial, see, for example, Guillaume Champy,Inquisitoire-Accusatoire devant les juridictions pnales internationales, 68 Intl Rev. Penal L. 149 (1997);Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa.L. Rev. 1 (2002); Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg,Tokyo, The Hague, and Arusha, 37 Colum. J. Transnatl. L. 725 (1999); Daryl A. Mundis, From CommonLaw Towards Civil Law: The Evolution of the ICTY Rules of Procedure and Evidence, 14 Leiden J. Intl L.367 (2001); Vladimir Tochilovsky, Rules of Procedure for the International Criminal Court: Problems to Addressin Light of the Experience of the Ad Hoc Tribunals, 46 Neth. Intl L. Rev. 343 (1999).

29. In his classic description of Webers methodology, Max Rheinstein writes:Situations of such pure type have never existed in history. They are articial constructs similar tothe pure constructs of geometry. No pure triangle, cube, or sphere has ever existed. But never couldreality have been penetrated scientically without the use of the articial concepts of geometry. Forthe pure concepts created by him, Weber used the term ideal type . . . . The ideal types . . .are simply mental constructs meant to serve as categories of thought the use of which will help us tocatch the innite manifoldness of reality by comparing its phenomena with those pure typeswhich are used, so to speak, to serve as guide in a ling system.

Max Rheinstein, Introduction to Max Weber on Law in Economy and Society XXIXXXX (EdwardShils & Max Rheinstein trans., Max Rheinstein ed., 1954).

30. Mirjan Damaka has shown the most sophisticated use of this approach, though he replaces theadversarial and the inquisitorial with his own categories. See Damaka, supra note 24.


instance, the use of ideal-types identies the relevant differences between theadversarial and inquisitorial systems, and a change to the concrete criminalprocedure of a system does not necessarily lead to changing or discarding themodel. Instead, this approach only labels concrete criminal procedure ascloser to or farther from the ideal-type. Additionally, the ideal-type approachmay also be fruitful in analyzing hybrid criminal procedures like the inter-national criminal tribunals by identifying those features that correspondwith each type.31 The ideal-type approach also provides a useful frameworkfor analyzing the phenomena of inuences and legal transplantation betweencommon and civil law procedures.32 First, by providing a clear axis of refer-ence, this approach allows us to analyze the extent to which criminal proce-dures are transformed as a consequence of inuences or transplantation. Sec-ond, to the extent that the concrete criminal procedures are closer to theideal types, they explain the incentives and logic of the system so that it ispossible to identify in advance potential foci of resistance to reform.

A. Structures of Interpretation and Meaning

Nevertheless, there is one area the ideal-type approach does not address,or leaves in the background, and I would like to bring it to the foregroundin this Article. The adversarial and the inquisitorial models are not only twoways to structure criminal proceedings, but also two ways of understandingand representing criminal procedure. For instance, common law judges par-ticipate in the interrogation of witnesses much less than do their Continen-tal colleagues, not only because procedural rules give them less power to doso, but also because the role of the judge is understood differently in thecommon law system. Whereas the inquisitorial system judge is understoodand perceived as an active investigator with, consequently, the duty to beactive in these interrogations, the adversarial system judge is usually under-stood as a passive umpire who is not supposed to participate actively in theinterrogation of witnesses.33

31. See, e.g., Tochilovsky, supra note 28.32. See Mirjan Damaka, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental

Experiences, 45 Am. J. Comp. L. 839 (1997); Elisabetta Grande, Italian Criminal Justice: Borrowing andResistance, 48 Am. J. Comp. L. 227 (2000).

33. With the re-conceptualization of the adversarial and the inquisitorial systems developed in thisArticle, I am trying to capture the internal point of view of the legal actors who are part of criminalprocedures of the common and the civil law. This distinction between an external and internal point ofview has been used in a multiplicity of disciplines. For instance, Max Weber took this distinction intoaccount by including as the object of sociological study not only the external aspect of human behaviorbut also the meaning that human beings ascribe to their own behavior. See Rheinstein, supra note 29, atXXIXXXX:

The observation that one man hands to another a piece of greenish paper is as such irrelevant in thestudy of human relationships. The observed phenomenon does not assume social signicance untilwe know that a large group of human beings, of which our two actors are members, regard thegreenish paper as a piece of paper money or, in other words, that they ascribe to it the function ofserving as a generally recognized means of exchange and payment.

Id. at XX. In jurisprudence, the classic reference is H. L. A. Hart, who used this distinction between


In other words, the adversarial and the inquisitorial can be understood astwo different structures of interpretation and meaning through which the actorsof a given criminal justice system understand both criminal procedure andtheir role within the system.34 Within these two procedural structures ofinterpretation and meaning or procedural languages, the same terms orsigniers often have different meanings. For instance, in the adversarial sys-tem, the word prosecutor means a party in a dispute with an interest atstake in the outcome of the procedure; in the inquisitorial system, however,the word signies an impartial magistrate of the state whose role is to inves-tigate the truth.35 The word truth also has a different meaning in eachprocedural structure of interpretation and meaning. In the adversarial sys-tem, even if the dispute is about truth, the prosecution tries to prove thatcertain events occurred and that the defendant participated in them, whilethe defense tries to question or disprove this attempt. The adversarial con-ception of truth is more relative and consensual: if the parties come to anagreement as to the facts of the case, through plea agreements or stipula-tions, it is less important to determine how events actually occurred.36 In theinquisitorial structure of interpretation and meaning, truth is conceived inmore absolute terms: the ofcial of the statetraditionally, the judgeissupposed to determine, through an investigation, what really happened,

external and internal point of view. H. L. A. Hart, The Concept of Law 8891 (2d ed. 1994). See alsoPaul W. Kahn, The Cultural Study of Law (1999). In anthropological studies, Clifford Geertz hastried to capture the idea of the internal point of view through his concept of thick description. Clif-ford Geertz, The Interpretation of Cultures 510 (1973). Since Weber coherently used theideal-type approach and took into account the internal point of view of the social actors, I do not considermy re-conceptualization of the adversarial and inquisitorial systems as incompatible with the ideal-typeapproach; I think they are simply independent from one another. My point is that comparative criminalprocedure analyses have generally overlooked the internal point of view of the actors of the criminaljustice system and that including this perspective is central both to examining the differences betweenthe criminal procedures of the common and the civil law as well as phenomena such as the circulation oflegal ideas and institutions between them and to debates about the Americanization of law.

34. I take the expression structures of meaning from Clifford Geertz, Local Knowledge: Fact and Lawin Comparative Perspective, in Local Knowledge: Further Essays in Interpretive Anthropology167, 182 (1983) (which states: The turn of anthropology . . . toward heightened concern with structuresof meaning in terms of which individuals and groups of individuals live out their lives, and more par-ticularly with the symbols and systems of symbols through whose agency such structures are formed,communicated, imposed, shared, altered, reproduced, offers as much promise for the comparative analysisof law as it does for myth, ritual, ideology, art, or classication systems, the more tested elds of its ap-plication. Id.)

35. On the different conceptions of the prosecutor in the Anglo-American system and the inquisito-rial one, see, for example, William T. Pizzi, Understanding Prosecutorial Discretion in the United States: TheLimits of Comparative Criminal Procedure as an Instrument of Reform, 54 Ohio St. L.J. 1325, 134951(1993); Thomas Weigend, Prosecution: Comparative Aspects, in 3 Encyclopedia of Crime & Justice1232, 123334 (Joshua Dressler ed., 2d ed. 2002).

36. This may sound like an exaggeration because, in U.S. jurisdictions, the judge still has to verify thefactual basis for a guilty plea. But in practice, U.S. judges are usually deferential to the agreements of theparties about the facts. Furthermore, cases such as North Carolina v. Alford, 400 U.S. 25 (1970), wherethe defendant pleaded guilty while claiming that he was actually innocent, are clear examples of a con-ception of truth that is much more relative and consensual.


regardless of the agreements or disagreements that prosecution and defensemay have about the event.37

At the same time, there are certain ideas and concepts that exist in oneprocedural language and not in the other. For instance, the adversarial sys-tem includes both the concepts of confessioni.e., an admission of guiltbefore the policeand guilty pleaan admission of guilt before the courtthat, if accepted, has as its consequence the end of the phase of determina-tion of guilt or innocence. The inquisitorial procedural structure of interpre-tation and meaning or language, on the other hand, does not include theconcept of the guilty plea; it only includes the concept of confession.38

In this system, a defendant cannot end the phase of determination of guilt orinnocence by admitting his guilt before the court. While the admission ofguilt may be very useful to the judge in seeking the truth, the judge still hasthe nal word on the determination of guilt and can thus say, I believe you,but your confession alone is not proof beyond a reasonable doubt that youdid it. In any case, if an admission of guilt happens during the pre-trialphase, the case must still go to trial before the judge can make a nal deter-mination.39

It is important to emphasize that even if it is possible to analyze the ad-versarial and the inquisitorial structures of interpretation and meaning asabstract systems, these structures only exist within concrete criminal proce-dures. In other words, it is possible to identify adversarial and inquisitorialsystems because the legal actors of the Anglo-American and civil law juris-dictions constantly make use of adversarial and inquisitorial structures ofinterpretation and meaning in conscious and unconscious ways. Taking adistinction from structuralist linguistics, I could say that while the struc-tures of interpretation and meaning are the languethe abstract system ofdifferences that establishes a lexicon and a set of potential operationsthepractices are the parolethe actual speech acts made possible by the langue.40

B. Individual Dispositions

Just as adversarial and inquisitorial structures of interpretation and meaningare grounded in concrete procedural practices, they are also internalized bythe relevant legal actors. I call this the dimension of individual disposi-

37. On the conception of truth predominant in the inquisitorial system as opposed to the accusatorial

one, see Antoine Garapon, French Legal Culture and the Shock of Globalization, 4 Soc. & Legal Stud. 493,49697 (1995).

38. See, e.g., Myron Moskovitz, PERSPECTIVE: The O.J. Inquisition: A United States Encounter withContinental Criminal Justice, 28 Vand. J. Transnatl L. 1121, 1153 (1995). This Article describes thedifferences between the adversarial and the inquisitorial systems by developing a dramatization of how acase similar to the O. J. Simpson trial might be handled by a civil law European criminal justice system.

39. See, e.g., John H. Langbein, Comparative Criminal Procedure: Germany 7374 (1977).40. See Ferdinand de Saussure, Course in General Linguistics (Wade Baskin trans., Charles

Bally & Albert Reidinger eds., 1959).


tions.41 These internal dispositions are acquired by the internalization ofthe procedural structures of interpretation and meaning, through a numberof socialization processes (i.e., law schools, judiciary school, prosecutorsofce and law rm training, interaction with the courts, etc.).42 As a resultof this socialization, a substantial number of actors in the criminal justicesystem are predisposed to understand criminal procedure and the variousroles within it in a particular way, and these dispositions become durableover time.

Hence, the idea that the judge is supposed to be a passive umpire in theadversarial system is not only due to the adversarial structure of interpreta-tion and meaning; it is also due to the phenomenon that a substantial num-ber of legal actors have internalized this structure of meaning in a commonlaw jurisdiction, they have come to consider this as the proper role of ajudge and will usually act accordinglyi.e., censoring a judge who partici-pates too actively in the interrogation of witnesses.43 In other words, to theextent that legal actors internalize these structures of meaning and then in-terpret and interact with reality through them, one could say that thesestructures of meaning constitute and shape legal actors as subjects.44

The dimension of individual dispositions becomes particularly importantwhen studying the transfer of legal ideas, norms, and institutions betweenadversarial and inquisitorial systems, as well as legal transplants in general.As we will see, part of the literature of the legal transplant discusses thetransfer of legal ideas from the common to the civil law, or vice versa, exclu-sively as interactions and struggles between two abstract systems of mean-ing.45 By including this dimension of individual dispositions, I would liketo emphasize that besides these interactions between two abstract systemsthat again, as I conceive of them, are inscribed in concrete social practicesevery legal transplant also involves interactions between concrete peoplewith a concrete set of individual dispositions.

41. My source of inspiration for the development of this dimension of internal dispositions is sociolo-

gist Pierre Bourdieus concept of habitus which can be dened as a set of dispositions which induce agentsto act and react in certain ways. The dispositions generate practices, perceptions, and attitudes which areregular without being consciously co-ordinated or governed by any rule. John B. Thompson, EditorsIntroduction to Pierre Bourdieu, Language and Symbolic Power 1, 12 (Gino Raymond & MatthewAdamson trans., John B. Thompson ed. 1991). Pierre Bourdieu describes his notion of habitus in otherworks as well. Pierre Bourdieu, Raisons Pratiques: Sur La Thorie de lAction 2223 (1994);Pierre Bourdieu, Some Properties of Fields, in Sociology in Question 72 (Richard Nice trans., 1993). Isay that the dimension of internal dispositions is only inspired by Bourdieus concept, because I do notfollow his theoretical framework in this paper. Thus, my use of it is idiosyncratic.

42. For a description of how lawyers, judges, prosecutors, and professors are trained and socialized in civil lawcountries, see, for example, John Henry Merryman, The Civil Law Tradition 10110 (2d ed. 1985).

43. On the role of the judge in the United States during trial, see, for example, Craig M. Bradley,United States, in Criminal Procedure: A Worldwide Study 395, 42122 (Craig M. Bradley ed., 1999).

44. For a recent analysisin the context of the debate in the United States on broken windows po-licingof how criminal law and criminal justice practices can shape social subjects, see Bernard E.Harcourt, Illusion of Order 160 (2001).

45. See, e.g., Gunter Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up inNew Divergences, 61 Mod. L. Rev. 11 (1998).


Moreover, this dimension is also important in understanding how proce-dural systemsand any other structures of interpretation and meaningcan change over time. The relationship between procedural structures ofmeaning and individual dispositions is one of mutual inuence. Individualdispositions are inuenced by structures of meaning to the extent that indi-vidual actors acquire, through a number of socialization processes, a concretesystem of interpretation that, to a certain extent, sets them up to act andreact in certain ways. But if a signicant number of actors internalize a dif-ferent structure of meaning (i.e., when civil law lawyers study in the UnitedStates and partly acquire an adversarial structure of meaning), this may leadthem to question the predominant structure of meaning (i.e., the inquisito-rial one) and attempt to incorporate practices from other systemslike pleabargaininginto their own legal systems.46

C. Procedural Powers

Finally, the adversarial and the inquisitorial differ at another level that Icall the dimension of procedural power.47 The main actors of the criminalprocessjudges, prosecutors, defense attorneys, defendants, police, etc.have different quanta of procedural powers and responsibilities in each system.For example, from this perspective, the inquisitorial decision-maker, as anactive investigator, has more procedural powere.g., to act sua spontethanthe adversarial decision maker.48 This also means that both the prosecutionand the defense in the inquisitorial system are comparatively less powerfulthan in the adversarial system. An example of this is the power that thedefense has in the adversarial system to do its own pre-trial investigationapower generally not present in inquisitorial systems.49 The variation ofprocedural powers at the level of individual actors can also be seen at theinstitutional level in the relationships of power between the ofce of theprosecution, the judiciary, the bar, the public defense ofce, the police, etc.50

46. On the inuence that U.S. legal education may have in processes of Americanization of European

legal rules and practices, see Wiegand, Americanization, supra note 1, at 13940.47. This dimension of procedural power has also been relatively overlooked by comparative criminal

procedure analyses, and it is central not only to describing the differences between the adversarial and theinquisitorial systems, but also to identifying potential loci of resistance towards judicial reforms in adver-sarial and inquisitorial institutional settings.

48. This is clear if we compare the active judges of the inquisitorial system with the jury of the adver-sarial one. The inquisitorial judges are also more powerful than adversarial professional judges because oftheir power to decide which evidence is produced at trial and the order in which it is presented, as well asthrough their power to lead the interrogation of witnesses and expert witnesses. However, this last state-ment must be qualied. The adversarial judges have inherent powersi.e., contempt powersthat theinquisitorial ones lack. In addition, since there is less hierarchical control over the decisions of the adver-sarial judges than the inquisitorial judges, the former also have more power in this respect.

49. Regarding France, see, for example, Valrie Dervieux, The French System, in European CriminalProcedures 218, 250 (Mireille Delmas-Marty & J. R. Spencer eds., 2002).

50. Though elaborating on this category more extensively is not necessary for the purposes of this Ar-ticle, I also include within this dimension of procedural and institutional power not only the relationshipbetween the main permanent actors and institutions of the criminal justice system, but also the relation-


This dimension of procedural power also has a relationship of mutualinuence with structures of meaning and internal dispositions. For instance,an inquisitorial structure of interpretation and meaning gives the judgebroad investigatory powers while giving more limited powers to the prose-cution and defense. At the same time, though, any attempt to change thisstructure of interpretation and meaning will usually generate a reaction bythe judges who protest against being disempowered through a new proce-dural structure of meaning.51

This leads to a very important point. Even though I have presented thedimensions of structure of interpretation and meaning, personal disposi-tions, and procedural and institutional powers as analytically different, inreality, they operate jointly and tend to reinforce, though also eventuallysubvert, one another.

D. Other Elements of the Systems

The interactions among these three dimensions have additional implica-tions. The adversarial and the inquisitorial procedural structures of interpre-tation and meaning are not only the lenses through which legal actors un-derstand and operate in reality. They also constitute two normative ordersthat indicate, to a certain extent, how cases should be handled, what tech-nologies should be used, how each of the actors of the system should behave,etc.

For instance, they determine to a certain degree how material and humanresources are structured and managed. Examples of this are the differentcase-management techniques that exist in each system. In the inquisitorialsystem, a written dossier is the backbone of the whole process and one of itsmain case-management tools, from the rst stage of the proceeding in whichthe police intervene, to the phase of appeals against the verdict.52 Con-

ships between the permanent professional actors and lay people. In the inquisitorial system, the power oflay people as decision-makers is minimal or entirely non-existent. In the adversarial system, it is muchmore substantial, at least in comparative terms. See, e.g., Robert A. Kagan, Adversarial Legalism8687 (2001).

51. The implementation of the 1998 Code of Criminal Procedure of the Province of Buenos Aires,Argentina, provides an example of this phenomenon. This code moved the responsibility of making thepre-trial investigation from judges to prosecutors. Consequently, a good number of judges resisted thisreduction of their procedural powers. This resistance was manifested, for instance, in the so-called pho-tocopies war. When requesting search warrants, investigating prosecutors chose to submit to judgescertied copies of the written dossier that contained the investigation rather than the originals as a meansof speeding up the proceedings. However, a number of judges took this as a symbolic issue about whowas really in charge of the investigation. Thus, they said they would not grant any search warrants untilthey received the original written dossiers. These controversies spoiled several investigations and becamesuch a serious issue that the Supreme Court of the province had to intervene. See, e.g., Rafael Saralegui,Demora judicial en San Isidro por una disputa, La Nacin (Arg.), June 6, 2000, at 1, available at http://lanacion.com.ar/Archivo/Nota.asp?nota_id=19704 (last visited Nov. 25, 2003) (on le with the HarvardInternational Law Journal).

52. For a description of the role of the written dossier in inquisitorial systems, see Rudolf B. Schlesin-ger, Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience, 26 Buff. L. Rev. 361, 36567(1977).


versely, in the adversarial system, oral and public hearings play an importantrole in the management of caseseven in those that are bargained.53 In asimilar wayas we will see in more detail laterplea bargaining has beenan unknown case-management tool in inquisitorial systems until recently,54

but it has been allowed and widely used in Anglo-American jurisdictions.55

This does not mean, however, that the dimensions of procedural structureof meaning, internal dispositions, and procedural power, inuence the dis-tribution of human and material resources, professional ethics, the internalsystem of incentives, etc., in a unidirectional way. These sets of factors aremutually inuential. For example, the existence of a written dossier, a case-management tool that contains all of the evidence gathered during the pre-trial phase is necessary for the trial judge to behave as an active investigatorat trial.56 If the written dossier did not exist because, for instance, it wassuppressed through a legal reform, the trial judge could not behave in suchan active way; she could not organize the trial in advance, interrogate thewitnesses effectively, etc., and the parties would gain procedural powers ather expense.57 Provided this reform lasted, it could produce a change in theinternal dispositions of the judges, prosecutors, and defense attorney of theinquisitorial system, so that they start to behave in a different way: thejudges more passively, the parties more actively, etc. This change in criminalprocedure practices (the parole) would then produce a change in the inquisi-torial structure of interpretation and meaning (the langue) and in the dimen-sion of procedural power.

Taking into account these multi-directional relations between the threedimensions described and the material and human resources, case-managementtechniques, professional ethics, etc., will be important in analyzing why andhow the adversarial and inquisitorial criminal procedures change over time,including the changes produced by the transfer of legal ideas and institu-tions.

53. On the preference for oral production of witness testimony in open court in the United States, see

Fed. R. Crim. P. 26. On the importance of oral communication in English criminal procedure, seeDamaka, supra note 24, at 61.

54. For a classic analysis, see John H. Langbein, Land Without Plea Bargaining: How the Germans Do It,78 Mich. L. Rev. 204 (1979).

55. For historical analyses of how the practice of plea bargaining developed in U.S. jurisdictions, seeAlbert W. Alschuler, Plea Bargaining and Its History, 13 Law & Socy Rev. 211 (1979); George Fisher,Plea Bargainings Triumph, 109 Yale L.J. 857 (2000); Lawrence M. Friedman, Plea Bargaining in HistoricalPerspective, 13 Law & Socy Rev. 247 (1979); John H. Langbein, Understanding the Short History of PleaBargaining, 13 Law & Socy Rev. 261 (1979).

56. See, e.g., Mirjan Damaka, Aspectos globales de la reforma del proceso penal, in Reformas a la JusticiaPenal en las Amricas (Fundacin para el Debido Proceso Legal ed., 1999), available at http://www.dplf.org/Conference98/Damaska.pdf (last visited Oct. 18, 2003).

57. This was precisely the idea behind Article 431 of the Italian Criminal Procedure Code of 1989that eliminated trial judges full access to the written dossier collected during the pre-trial phase. SeeCodice di procedura penale, art. 431 (2002) (Italy) [C.p.p.]. For an analysis of this reform, seeGrande, supra note 32, at 24344.


E. Points of Emphasis

Two nal points deserve emphasis. First, as the adversarial and the in-quisitorial categories exist within the concrete criminal procedure practicesof common and civil law jurisdictions, they are constantly challenged andsubjected to change. For instance, every time a particular U.S. judge activelyinterrogates witnesses (or allows juries to do it), there is a challenge to theadversarial structure of interpretation and meaning. Nevertheless, the factthat such challenges happen all the time does not mean that the adversarialand the inquisitorial systems do not continue to exist within these criminalprocedure practices. The overarching conception of the system may still behighly predominant within these practices even as we nd a number ofexceptions and challenges. In this sense, I do not believe these proceduralculturesand culture in generalto be homogeneous. My empirical claim isthat the adversarial and the inquisitorial procedural cultures remain highlypredominant in Anglo-American and civil law jurisdictions of continentalEurope and Latin America respectively, even today, at least as concerns theformal proceedings through which guilt or innocence are determined.

Second, even if the adversarial or the inquisitorial categories have beenhighly predominant during the formal proceedings for determining guilt orinnocence, this does not mean that they are the only structures of interpreta-tion and meaning that exist respectively in the criminal justice systems ofAnglo-American and civil law jurisdictions.58 Despite the existence of these

58. Addressing this issue in detail is beyond the scope of this Article. But I would like to stress four

main points. First, there are local procedural differences that cannot be reduced to these global structuresof meaning. For instance, the Ofce of the Prosecutor is part of the Executive Power in France, of thejudiciary in Italy, and an institution independent of the three traditional branches of government inArgentina. These different institutional positions have implications for what a prosecutor is understoodto be in these three countriesi.e., how independent they are from the Executive Power (for an analysisof the relationship between prosecutorial independence and the institutional position of the ofce of theprosecutor in the Latin American context, see Philip B. Heymann, Should Latin American Prosecutors beIndependent of the Executive in Prosecuting Government Abuses?, 26 U. Miami Inter-Am. L. Rev. 535(1995))and these different understandings cannot be reduced to the inquisitorial and adversarial struc-tures of meaning. (For an analysis of the consequences of these different institutional positions of prosecu-tors in France and Italy, see Carlo Guarnieri, Prosecution in Two Civil Law Countries: France and Italy, inComparing Legal Cultures 183 (David Nelken ed., 1997)). Second, in every concrete jurisdiction,there are generally other structures of interpretation and meaning in criminal procedure and, morebroadly, in the criminal justice system, that compete with or complement the adversarial and the inquisi-torial. For example, for most of the twentieth century in the United States, the sentencing phase of theproceedings has not been structured or mainly inuenced by the adversarial system, but rather by a pa-ternalistic conception of the proceedings that considered the convicted person as a dangerous or sickperson who has to be rehabilitated. (For an analysis of the sentencing phase in the United States duringmost of this century and how it changed with the introduction of the Federal Sentencing Guidelines, see,for example, Kate Stith & Jos A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 Nw. U. L.Rev. 1247 (1997)). Even in the phase of determination of guilt, where the adversarial system has pre-vailed for a long time in the United States, there are specic proceedings that are organized according toan inquisitorial structure of meaning, like the ones before the grand jury. On the inquisitorial characterof the grand jury, see, for example, Abraham S. Goldstein, Reections on Two Models: Inquisitorial Themes inAmerican Criminal Procedure, 26 Stan. L. Rev. 1009, at 1020 (1974). For a proposal to introduce moreadversarial protections in grand jury proceedings, see Peter Arenella, Reforming the Federal Grand Jury andthe State Preliminary Hearing to Prevent Conviction without Adjudication, 78 Mich. L. Rev. 463 (1980).


other structures of interpretation and meaning that operate at the proce-dural, legal, and social levels, it would be a mistake to underestimate thegreat importance of the adversarial and inquisitorial ones. The adversarialand the inquisitorial have exerted a very substantial inuence on criminalprocedure practices, norms, organizational arrangements, systems of incen-tives, etc., in Anglo-American and civil law jurisdictions, especially duringthe phase of determination of guilt or innocence. Even if specic analyseshave to pay attention to local particularities and to social, economic, andpolitical inuences on the criminal process, it would be a mistake not to attendto these substantial global commonalities or differences. Using a metaphortaken from modern systems theory, one could say that the Anglo-Americanand civil law systems respectively share the same or a similar adversarial orinquisitorial program, even if this program co-exists with other legal andsocial programs in each particular jurisdiction.59 These programs have to beadequately conceptualized in order to analyze the similarities and differencesbetween the Anglo-American and civil law jurisdictions and the circulationof legal ideas and institutions between them, as well as to discuss the subtle-ties of the Americanization thesis.

III. The Content of the Dichotomy: Adversarial vs. Inquisitorial

Having explained the underpinnings of the adversarial and inquisitorialsystems as theoretical categories, there are two binaries that I will use in thisPart to explain the main differences between these systems. First, whereasthe adversarial system conceives of criminal procedure as a dispute betweenprosecution and defense before a passive umpire, the inquisitorial systemconceives criminal procedure as an ofcial investigation carried out by ofcialsof the state in order to determine the truth. Second, whereas the adversarialsystems decision-maker is a jury that divides its work with a professionaljudge, the inquisitorial systems decision-maker is a professional judge or agroup of professional judges who do not share their responsibility with any

Third, there are other structures of interpretation and meaning regarding not only the criminal justicesystem, but also the legal system as a whole. If some of these structures can be reduced to global distinc-tions between the common and the civil lawi.e., legal reasoning in the former is more based onanalogical inferences and in the latter on deductive onesthere are other differences that cannot. Forexample, while some countries have a federal system, others do not, and this difference does not appear tooriginate in the adversarial and the inquisitorial systems. Finally, there are also other structures of inter-pretation and meaning (political, economic, religious, media, etc.) that exceed the legal sphere but thatmay affect how criminal procedure and criminal justice actors are understood. For instance, the prelimi-nary investigation judgejuge dinstruction in Francophone countries, juez de instruccin in Latin Americaand Spainis on many occasions represented in the French social imagination as the small ofcial whomakes the truth stand out by ghting against the powerful, the strength of ink and law against that ofmoney and power, and, at the same time, is an emblematic gure of the provinces in their struggle withParis. Garapon, supra note 37 at 49798. This is a social representation of the preliminary investigationjudge that is typically not found in other inquisitorial systems, such as Argentina.

59. See Gunther Teubner, The Two Faces of Janus: Rethinking Legal Pluralism, 13 Cardozo L. Rev.1443, 1455 (1992).


other body.60 These binaries explain some of the critical differences betweenthe adversarial system of the United States and the inquisitorial systems ofGermany, Italy, Argentina, and France.

Attempting to dene the adversarial and the inquisitorial systems for thepurposes of comparative law is a difcult task for at least four different rea-sons.61 First, differences between the criminal procedures of the commonand civil law traditions can be traced back to the thirteenth century whenEngland and Europe developed different systems to replace the then pre-vailing practices that had been in place since the fall of the Western RomanEmpire.62 These differences have evolved over time, and explaining theseseparate evolutions is beyond the scope of this Article.63

Second, as a consequence of phenomena like colonization, civilization, andmodernization, these two traditions have each expanded to include a sub-stantial number of countries with varying individual legal rules and prac-tices, thus complicating efforts to capture the differences and similaritiesbetween the systems as a whole.64

Third, both in Anglo-American and civil law jurisdictions, the expres-sions adversarial (or accusatorial)65 and inquisitorial are fraught with

60. As I explain later, professional judges may share their responsibility with lay people in mixed

courts. However, even in this case, professional judges still usually retain control of the decision-makingprocess, given that they are the professional and permanent actors. Furthermore, there is only one deci-sion-making body composed by professional judges and lay people, instead of twothe judge and thejuryas in the adversarial system.

61. The expressions accusatorial and inquisitorial were already in use during the twelfth centuryin Europe to distinguish a process that required the impetus of a private complainant to get under way(processus per accusationem) from a process that could be launched in his absence (processus per inquisitionem).Damaka, supra note 24, at 3. The modern use of these expressions, that conceives of the accusatorial andthe inquisitorial not only as two different ways of initiating procedures, but also as two comprehensiveprocedural systems, was likely to have developed during the nineteenth century. The rst such usage ofwhich I am aware is Faustin Hlie, 5 Trait de lInstruction Criminelle ou Thorie du CodedInstruction Criminelle 4765 (1853).

62. For a description of the system of ordeals, trial by combat, and oaths prevalent in Europe prior tothe thirteenth century and an explanation of why this disappeared, see Robert Bartlett, Trial byFire and Water (1986).

63. A classic account is Adhemar Esmein, Histoire de la Procdure Criminelle en France(1882). There is an English edition of this work: Adhemar Esmein, A History of ContinentalCriminal Procedure (John Simpson trans., 1968) (1882). For contemporary accounts of these devel-opments, see Franco Cordero, Procedura Penale 16101 (2d ed. 1993); John H. Langbein,Prosecuting Crime in the Renaissance (1974); John H. Langbein, The Origins of AdversaryCriminal Trial (2003); John H. Langbein, Torture and the Law of Proof (1977); Julio B.J.Maier, 1 Derecho Procesal Penal 5 (2d ed. 1996); Jean-Pierre Royer, Histoire de la justiceen France: de la monarchie absolue la Rpublique (2d ed. 1996). I am not referring to evolu-tion as progress or movement towards perfection, but simply as change over time. For an interestinganalysis regarding the use of this term in system theory, see Gunther Teubner, Legal Irritants: Good Faithin British Law, or How Unifying Law Ends Up in New Divergences, 61 Mod. L. Rev. 11, 1516, 2732(1998).

64. On the expansion of the common law throughout the world, see Konrad Zweigert & HeinKtz, Introduction to Comparative Law 21837 (3d ed. 1998). For a description of how the in-quisitorial system was imposed and developed in Latin America, see Maier, supra note 63, 5(D)(8). Foran analysis of these developments in a number of African, Asian and Inter-American countries, see JeanPradel, Droit Pnal Compar 186201 (1995).

65. Abraham S. Goldstein tried to establish a distinction between the terms adversarialas a way of


political and cultural connotations; for instance, the adversarial tradition isusually linked to liberal or democratic conceptions while the inquisitorialtradition is linked to authoritarian conceptions of criminal procedure.66 Thishas led to what could be described as a rhetorical struggle for the appropria-tion of these terms, that in turn has multiplied the terms different uses.67 Infact, as a consequence of these connotations, adversarial and inquisitorialhave been central terms or oating signiers through which the actors ofthe Anglo-American and the civil law systems have dened and differenti-ated their own identity, both from the identity of other traditions as well asfrom their own past.68

Finally, even if it is possible to identify historical differences between thecriminal procedures of the common and the civil law that have lasted untiltoday, it is not always possible to reduce these differences to a common ex-planatory principle. For example, plea bargains and detailed rules of evi-

nding facts and implementing normsand accusatorialthat would include not only adversary trialprocedures but also a conception of the state as being neutral in disputes. However, in this Article, Iconsider these terms as equivalent. See Abraham S. Goldstein, Reections on Two Models: Inquisitorial Themesin American Criminal Procedure, 26 Stan. L. Rev. 1009, 1017 (1974).

66. For Argentina, see, for example, Maier, supra note 63, 5(H)(1)(a)(b). For France, see, for exam-ple, Jean Pradel, Inquisitoire-Accusatoire: une redoutable complexit, 68 Intl Rev. Penal L. 213, 215 (1997).For Germany, see, for example, Claus Roxin, Strafverfahrensrecht 2, at 911 (25th ed. 1998).For Italy, see, for example, Luigi Ferrajoli, Diritto e Ragione: Teoria del Garantismo Penale576, 655 n.84 (1989). For the United States, see, for example, Miranda v. Arizona, 384 U.S. 436, 44243, 45960 (1966).

67. See Langer, supra note 23, at 10214.68. In the United States, the word adversarial has been used in laudatory terms in reference to U.S.

criminal process, which had its earliest origins in England in the struggles for rights against the authori-tarian monarchy, struggles that continued in the Colonies and that nally found their way into the Bill ofRights. In this construction of the adversarial, the inquisitorial refers to the contemporary criminal pro-cedures of continental Europe that would still be considered authoritariani.e., eliciting confessions in acoercive way. For an example of this construction of the adversarial and the inquisitorial in the UnitedStates, see Miranda, 384 U.S. at 44243, 45960. (For another use of the terms in the United States thatis not presented in a laudatory way and is focused on the role of the judge in each of these systems, see,for example, McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).) In continental Europe, one of themost widespread uses of the accusatorial and the inquisitorial for dening the identity of its moderncriminal procedure has been the following. The accusatorial is used to refer to the modern Anglo-American criminal proceduresand the ones that prevailed in continental Europe from the fall of theWestern Roman Empire until the thirteenth centurythat are usually considered inefcient in lawenforcement terms; the inquisitorial refers to the criminal procedures that prevailed in continentalEurope from the thirteenth to the nineteenth centuries, that are usually characterized as authoritarian;and the modern continental European criminal procedures would constitute a mixed system that wouldcombine the best of the two other systems. For an example of this use in early twentieth-century France,see Ren Garraud, 1 Trait Thorique et Pratique dInstruction Criminelle et de Pro-cdure Pnale 1022 (1907). Hlie uses the terms in a similar way, Hlie, supra note 61, at 4765.For a contemporary use of these terms in Latin America, see Maier, supra note 63, 5(H)(1)(a)(c), at44354, though this author is very critical of the mixed system. I am not aware that anyone else hasanalyzed the inquisitorial and the adversarial as central terms or signiers through which the identities ofthe actors of the common and the civil law traditions have been dened. Understanding these processes ofdening identity could open new doors for comparative criminal procedure analyses. For instance, theymay be useful in understanding why continental European and Latin American actors have been inter-ested in adopting institutions and ideas from the Anglo-American system, rather than the other wayround. For a recent analysis of legal traditions as identities, see H. Patrick Glenn, Legal Traditionsof the World (2000).


dence have traditionally been both associated with the Anglo-Americancriminal process and considered non-existent in most civil law countries.69

Nevertheless, the historical and analytical explanations of these two featurescannot be reduced to a single source. Plea bargains seem to have their originin a criminal procedure system understood as a dispute between parties, whereasdetailed rules of evidence seem to be mainly linked to the use of a bifurcatedcourt where one organthe judgedecides what evidence can be intro-duced at trial, and another organthe jurydecides the guilt or innocenceof the defendant.70

In this Article, I address such difculties as follows. First, regarding theproblem of change in the systems over time, I focus on contemporary crimi-nal procedures of civil law systems before they introduced the specic adver-sarial reforms analyzed in the next Parts. Second, regarding the plurality ofjurisdictions that could be included in the adversarial and inquisitorial cate-gories, I have chosen to focus on ve jurisdictions. When I refer to the ad-versarial system, I am referring to U.S. jurisdictions, and when I refer to theinquisitorial system, I am referring to the criminal procedures of Germany,Italy, Argentina, and France. Third, concerning the political connotations ofthe terms adversarial and inquisitorial, it is necessary to stress that I usethem only as descriptive tools for the purposes of comparative law. Finally,rather than attempting to explain the differences between the systemsthrough one explanatory principle, I instead identify two models withineach system as the bases for comparison.71

The rst pair of models for comparison are the model of the dispute (a featureof the adversarial system) and the model of the ofcial investigation (a feature ofthe inquisitorial system).72 According to the rst model, the criminal proce-

69. See, e.g., Langbein, supra note 39, at 6871.70. Id. at 7071. For a study of why the law of evidence in Anglo-American jurisdictions exists in its

current form, and how it relates to other features of the Anglo-American system, see Mirjan R.Damaka, Evidence Law Adrift (1997). Damaka does not believe that the existence of the jury hasplayed as central a role as is usually thought. Id. at 2657.

71. Given my conceptualization of the adversarial and the inquisitorial systems as procedural cultures,there is a fth problem in giving content to both categories. As explained in Part II, these cultures arenot completely homogeneous, and within the criminal procedure practices of the United States, Argen-tina, France, Germany and Italy, one can identify different visions about what characterizes each of theselegal cultures. Thus, giving a particular content to each of these legal cultures may silence or suppresssome of these alternate visions and may contribute to make prevail one vision over others. The rst wayto address this problem is by recognizing it as such, in other words, by being self-conscious and self-reexive about it. In addition, I think that the adversarial and the inquisitorial systems as I dene themin this Part have been overwhelmingly predominant in these ve jurisdictionsat least during the phaseof determination of guilt and innocence. Therefore, I will concentrate in this Article on these predomi-nant conceptions of the adversarial and inquisitorial because they are the most useful in explaining howmost legal actors in each of these jurisdictions understand criminal procedure, and thus how plea bar-gaining was transformed when adopted by our four civil law countries. Works focused on the dissidentcultural voices in each of these jurisdictions and on the heterogeneity of the adversarial and inquisitorialcultures would be very valuable, but these are part of a different endeavor than the one undertaken in thisArticle.

72. The idea of the dispute and the investigation has been used for comparative law purposes for along time. See, e.g., Hlie, supra note 61, at 53.


dure is understood as a dispute or a contest between two parties, prosecutionand defense, before a passive decision-maker. The dispute centers around theprosecutions attempt to prove beyond a reasonable doubt that the defendantcommitted the offense of which he or she has been accused. If the prosecu-tion succeeds, then the prosecution wins; if it fails, the defendant wins.

Many characteristic features of Anglo-American criminal procedure can beexplained through this model. For instance, broad prosecutorial discretionts within this model because the prosecution, as one of the parties andowners of the dispute, may not believe that there is controversy in a par-ticular case or may decide that the controversy is not worth pursuing and isthus not obligated to pursue it.73 Guilty pleas t into this model because thedefense, as the other party to the dispute, may concede that the other partyis correct and thus resolve the dispute; the determination of guilt or inno-cence ends74 and the case passes to the sentencing stage. If criminal proce-dure is seen as a dispute, then structuring the process as two competing andclashing cases also ts within this conception. Thus, in Anglo-Americanjurisdictions, each party to the dispute does its own separate pre-trial inves-tigation,75 even if the parties must disclose part of the information theygather to the other party through discovery rules and proceedings.76 Thetrial is divided into a case for the prosecution and a case for the defense; theparties usually decide in what order the evidence will be presented; the wit-nesses and expert witnesses belong to the prosecution or the defense77 and

73. For analyses of the broad discretion of U.S. prosecutors, see, for example, Norman Abrams, Prose-

cution: Prosecutorial Discretion, in 3 Encyclopedia of Crime and Justice 1272 (Sandorf H. Kadish ed.,1983); Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of ProsecutorialDiscretion, 47 U. Chi. L. Rev. 246 (1980); Peter Krug, Prosecutorial Discretion and its Limits, 50 Am. J.Comp. L. 643 (2002); Wayne R. LaFave, The Prosecutors Discretion in the United States, 18 Am. J. Comp. L.532 (1970); Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717(1996); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521 (1981). For classi-cal analyses of how to address the problem of discretion in the criminal justice system, regarding not onlyprosecutorial practices but also the practices of other legal actors, see Kenneth Culp Davis, Discre-tionary Justice: A Preliminary Inquiry (1969); Arthur Rosett, Discretion, Severity and Legality inCriminal Justice, 46 S. Cal. L. Rev. 12 (1972).

74. See, e.g., Fed. R. Crim. P. 11(c)(4).75. On the duty of the defense attorney in the United States to make reasonable investigations, or to

make reasonable decisions that particular investigations are unnecessary, see Wiggins v. Smith, 123 S. Ct.2527 (2003); Strickland v. Washington, 466 U.S. 668, 691 (1984).

76. In fact, until the promulgation of Federal Rule of Criminal Procedure 16 in 1946, no right to dis-covery existed in federal litigation. See Frank W. Miller et al., Criminal Justice Administration:Cases and Materials 753 (5th ed. 2000). Today, discovery rules are grounded in the Constitutionunder the Brady doctrine, Strickler v. Greene, 527 U.S. 263 (1999); Kyles v. Whitley, 514 U.S. 419(1995); United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976); Gigliov. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963); in federal statutes, see,e.g., 18 U.S.C. 3500 (1970), in the Federal Rules of Criminal Procedure, see, e.g., Fed. R. Crim. P. 12.1,12.2, 16, and 26.2; and in the supervisory powers of the courts.

77. On the coaching that lawyers give their witnesses in the United States, see, for example, WilliamT. Pizzi, Trials without Truth 2122 (1999). But see Fed. R. Evid. 614(a) (establishing that the courtmay, on its own motion, call a witness); Fed. R. Evid. 706(a) (stating that the court may also appointexpert witnesses of its own selection). These powers, however, are seldom used in criminal trials. See, e.g.,United States v. Ostrer, 422 F. Supp. 93 (S.D.N.Y. 1976) (stating that although the court has discretion-


the questioning of witnesses is developed as a dispute between two parties,with direct and cross-examination, as well as redirect.78 Plea bargains canalso be explained through the dispute model because it is natural in any dis-pute that the parties can negotiate a resolution.79

In the model of the ofcial investigation, which corresponds to the in-quisitorial system, criminal procedure is conceptualized as an inquiry madeby one or more ofcials of the state in order to determine whether a crimewas committed and whether the defendant committed it.80 Numerous ele-ments of the criminal procedure in civil law countries can be explainedthrough the use of this model.81 Compulsory prosecution is necessary withinthis model because the proceedings are an investigation to determine thetruth, and thus, the case can only be dismissed when there is no evidencethat an offense has been committed or that the defendant committed it.82

The concept of the guilty plea does not exist in this model because, whilethe admission of guilt by the defendant can be a very important element ofproof, it does not necessarily provide a complete version of the truth, whichis for the judge to decide.83 Further, there are no plea bargains,84 not onlybecause there are no guilty pleas but also because the truth cannot be nego-tiated or compromised. Finally, the whole procedure is structured and un-

ary power to call a court witness, this power is rarely invoked). For an analysis of the obstacles that judgeswould face in becoming more active players at trial, see Marvin E. Frankel, The Search for Truth: An Um-pireal View, 123 U. Pa. L. Rev. 1031, 104145 (1975).

78. See, e.g., Fed. R. Evid. 611. Federal Rule of Evidence 614(b) establishes that the court may inter-rogate witnesses, whether called by itself or by a party. But this power is also infrequently used incriminal trials. See Bradley, supra note 43, at 421.

79. See, e.g., Brady, 397 U.S. 742 (approving, for the rst time, the constitutionality of plea bargain-ing). On the history of plea bargaining in the United States, see the references at supra note 55.

80. For instance, regarding the determination of truth being the goal of criminal procedure in France,see Michle-Laure Rassat, Trait de Procdure Pnale 297 (2001).

81. Recall that this description refers to the criminal procedures of Argentina, France, Germany, andItaly, as they were before the reforms that I will analyze in this Article. This is particularly important inthe case of Italy, which changed many of these features when it moved in the direction of the model ofthe dispute by introducing its Criminal Procedure Code of 1989. However, even if the description refersto their pre-reform criminal procedures, most of these features are still present today in most of thesecivil law countries. When I cite rules, I am referring to rules that are still valid today.

82. There are differences in the way the four main civil law jurisdictions discussed in this Articleregulate this issue. For jurisdictions establishing rules of compulsory prosecution, see Cdigo Penal[Cd. Pen.] [Penal Code] art. 59.4 (Arg.) (for Argentina); Costituzione della Repubblica Italiana [Cost.]art. 112 (Italy). Germany established a rule of compulsory prosecution as the general rule, although thereare exceptions through its opportunity principle. 15254a Strafprozessordnung [StPO] [criminalprocedure statute] (F.R.G.). In France, the prosecutor has discretion about whether to bring chargesinitially. Code de procdure pnale [C. pr. pn.] [Criminal procedure code] art. 40 (Fr.). But if theFrench prosecutor decides to bring charges, he/she cannot dismiss the charges without the acquiescence ofthe court. See Rassat, supra note 80, at 45253). (I will not analyze here the powers of the victim re-garding this issue). As there is no system that can possibly prosecute all criminal offenses, the rule ofcompulsory prosecution or limited prosecutorial discretion has been described as a myth. For a debate onthis issue in the United States, see Abraham S. Goldstein and Martin Marcus, The Myth of Judicial Super-vision in Three Inquisitorial Systems: France, Italy, and Germany, 87 Yale L.J. 240 (1977); John H. Lang-bein & Lloyd L. Weinreb, Continental Criminal Procedure: Myth and Reality, 87 Yale L.J. 1549 (1978).

83. See Moskovitz, supra note 38, at 1153. See also Langbein, supra note 39, at 7374.84. See, e.g., Langbein, supra note 52.


derstood as a unitary investigation.85 Thus, there is only one pre-trial inves-tigation, the ofcial

langer, plea bargaining

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