Intergenerational Continuity: Can Love and Care Be Mandated by Law?

[Editor’s note: This is the fourth of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

The article “The Family of the City, the family of the country” by Shelly Kreiczer-Levy and Baoshi Wang deals with intergenerational family relationships and the way the state influences and shapes them. One of the important factors underlying these relationships is the interest in continuity. This interest has been established as a significant factor in inheritance law in several important articles written by Shelly Kreiczer-Levy. This interest in continuity comprises two aspects:

The first aspect is reflected at the end of a person’s life, which is the moment when the vision of the person’s continuity is manifested and established as the individual drafts their will. The second aspect of continuity addresses the descendants, who are the other side of the connection, and their need for roots. The two aspects are intertwined, so that part of the elderly person’s interest in continuity is that their descendants will have roots, and part of the descendants’ interest in roots is that they will continue them. Through the perspective of the principle of continuity, Kreiczer-Levy provides an innovative and important lens through which she views many other principles, such as testamentary freedom and doctrines of undue influence in Anglo-American law.

Building on Kreiczer-Levy’s work and influenced by her articles, I have explored the role of continuity in additional cases. I suggested that the doctrine of undue influence, known in inheritance law, should be interpreted as focusing on protecting the deceased’s familial and intergenerational connections. Consequently, I identified cases where an individual isolates the elderly from their family and severs their connections, which I termed “elder familial alienation,” and argued that this doctrine should apply to such cases. However, contrary to inheritance law, which focuses on the period after a person’s death, I argued that the interest in continuity is realized through intergenerational relationships during a person’s life, not just after death. Accordingly, I proposed that the law should expand its view beyond inheritance law and apply the doctrines of undue influence and elderly alienation not only after a person’s death but also during their lifetime. Therefore, in cases where a person’s intergenerational connections, especially those of the elderly, are under threat, I believed the law should provide remedies during the person’s life aimed at protecting their connections, rather than merely invalidating their will after death. Subsequently, I argued that there is a need to recognize the elderly person’s right to intergenerational connections, based on their interests in welfare, autonomy, and the interest in continuity.

An analysis of the elderly person’s right to intergenerational connections through Hohfeldian analysis may establish obligations in several dimensions: both public and private. In each dimension, there are obligations derived from both the positive and negative sides of the right. In the negative dimension of public law, the right imposes a duty on the state not to interfere with or harm intergenerational connections. This became particularly relevant in many countries during the COVID-19 pandemic, when the isolation of the elderly in state institutions was a major issue. The positive side of the right imposes a duty on the state to support and facilitate these connections, which can be reflected in measures to promote and encourage such relationships. In the negative dimension of private law, the right creates an obligation on third parties not to damage the elderly person’s connections. For instance, in cases of elder familial alienation, it could be important to prohibit individuals from isolating the elderly and severing their intergenerational ties. But what about the positive dimension of private law? Is there an obligation for descendants to maintain a relationship with the elderly?

In most legal systems, it is commonly believed that relationships cannot be imposed on people, nor can emotions such as love be compelled, and thus neither can personal relationships nor care. This is true for both general and familial relationships.

However, in this article, the authors, Shelly Kreiczer-Levy and Baoshi Wang open our eyes to issues of family in general and intergenerational relationships in particular. This article spans three countries—China, Israel, and the United States—and through examples from these countries, it presents the innovative argument that geographical areas influence relationship systems, personal connections, and care practices. The authors demonstrate that there is more than one way to think about intergenerational obligations and that these obligations are a matter of geography. Geography can be reflected in differences between countries and even within countries between families living in urban and those living in rural areas.

One surprising example in the article is that in China, there is a legal obligation to visit, care for, and respect the elderly. This obligation is enforced through various means, including criminal penalties. This obligation, which was “missing” from the positive Hohfeldian analysis of the right to intergenerational connections, arose from the state’s need to address the issue of young people moving to cities while the elderly remain in rural areas without adequate care. This raises intriguing questions about whether such a legal requirement is effectively implemented or if it represents an impractical and unrealistic demand. Thus, while in Western societies the duty to maintain relationships and care for the elderly might be seen as merely moral but not legally enforceable, in China it has become a legal obligation that can be enforced. This practice challenges fundamental norms in Western society that argue care, relationships, and love cannot be imposed, and demonstrates that, at least in China, the Hohfeldian analysis of the right to intergenerational connections can be fully realized.

The State and Urban Families, The State and Rural Families.

[Editor’s note: This is the third of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

In their fascinating article “The Family of the City; The Family of the Country” Shelly Kreiczer-Levy and Baoshi Wang explore the connection between family, geographical space and the state. They argue that the family (particularly caring responsibilities and practices) is shaped differently in urban and rural areas, and that the state plays an important role in creating, maintaining, reacting to or even causing these dissimilarities between city and country families.

The article examines three case studies: Chinese urbanization process, family farms in Israel, and abortions regulations in the United States. Each of these examples addresses different geographical areas and distinct aspects of family formation; however, grouped together they provide an overview of various spatial aspects of family formation, and different state strategies shaping the intersection of geographical location and familial roles.

The Article beautifully demonstrates two categories of state involvement in the family. The first category is disparate treatment of urban and rural families; the second category is spatially blind policies. In the first category, the state distinguishes between families based on their geographical location, thereby influencing caring responsibilities and practices. In the second category, the state applies a uniform rule to all families, but this rule has a disparate impact on city and rural families. At first glance, these categories seem to be opposites (similar v. dissimilar treatment) or at least two distinct strategies yielding different outcomes (considering or ignoring the difference between families in rural areas and city). Yet, in both categories the state plays a role in differently shaping the family. Therefore, one important contribution of this article is its demonstration that the state is not neutral. Whether using either category, the state intervenes and shapes families.

The notion that the family is not entirely a private institution and that the state plays a role in its formation is not new. The state heavily regulates many aspects of family life, such as through marriage and divorce laws, and laws governing parent-child relations. Furthermore, the employment market (which is regulated by labor law) also shapes families, particularly familial roles. However, the article enriches family law scholarship by highlighting the spatial aspect of family formation through state actions. As the article shows, even when caregiving is conducted by family members within the privacy of the family home (rather than in state institutions), it is not free from state influence. Whether directly or indirectly, through equal or disparate treatment, the state influences familial relations in both cities and rural areas. Does the state amplify or perpetuate exiting differences between families in urban and country areas? Or does the state constitute these differences? How do different families respond to state regulations? The article brilliantly sets the stage for this discussion, and these questions require further research that contextually analyzes different families in cities and rural settings. The article makes another important contribution by laying the groundwork for policy considerations regarding state regulations. The discussion of COVID-19 regulations demonstrates that the state must consider how regulations will impact different families in various spatial areas. The question, therefore, is not whether the state should treat city families and rural families the same or differently, but rather how state regulations impact different families. In other words, the question is what policy will best serve the needs and interests of different families. For example, what is the best policy during the COVID-19 pandemic that would both enable care for vulnerable family members and at the same time safeguard their health? How would such regulations influence family formation? Would they support or hinder caregiving for family members? There is no single answer that applies to all families, and context – including geographic context – must be considered. Therefore, the article emphasizes the importance of a bottom-up approach to studying the impact of state regulations on family formation in different spatial contexts. State responsibility requires that the state fosters the best family care, whether in urban or country areas (and provide state care when family care is unavailable). Any future scholarship, state policy or regulation should build upon the impressive groundwork laid by the article.

Adding a Conceptual Framework to Rural Family Law

[Editor’s note: This is the second of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

The Family of the City, the Family of the Country by Shelly Kreiczer-Levy & Baoshi Wang makes an important and unique contribution to the field of Family Law. The rural family has long been ignored in most legal scholarship. While a few academics (myself included) have written about discrete topics concerning the rural family, prior to this article no one had tried to write a conceptual piece about rurality and Family Law. Instead, prior work on the rural family has focused only on one legal issue in one jurisdiction. Think articles focused on abortion rights, child custody disputes, or family inheritance policies. The Family of the City, the Family of the Country takes note of these prior articles and the larger body of literature about rural-urban difference in the law, but then builds on that work.  

What The Family of the City, the Family of the Country adds is a conceptual framework. The authors start by describing the scope of their project: that they present “different types of state involvement in the bifurcation of familial practices of care across geographical distinctions.” It is their look at these “different types of state involvement” in a comparative law context that makes the paper so ambitious. It also means they can offer a more conceptual framework to understand how governments treat families in rural versus urban areas. 

But let me back up to a core piece of knowledge in Family Law that underlies the theories presented in this paper: the government is involved in forming and shaping families. In our individual lives, many of us like to think that we make our choices about our family relationships and structures without influence by the government. As a Family Law professor, one of the first and biggest points I make is that the laws surrounding family influence how individuals live their lives. The best scholarship showing this government influence on the family is probably “Public Vows,” Nancy Cott’s book on marriage. Kreiczer-Levy & Wang build on this basic understanding of Family Law by expanding the analysis: it is not just that the government influences family (this is well-established), but that the government influences family in different ways in urban versus rural spaces (this is their contribution). 

To show this rural/urban difference, Kreiczer-Levy & Wang present three case studies covering intergenerational care in China, family farms in Israel, and abortion access in the United States. The case studies are ambitious—they cover three areas of law in three different countries. The heavy lift is to make sense of such different case studies and to present a way to understand all three. To do this, they have to make an important observation about how rural/urban differences in Family Law are created. They categorize how these differences come about, noting that sometimes governments will engage in “differential treatment” by creating explicit laws treating urban and rural spaces differently, but sometimes governments will create “spatially blind policies” that look the same but apply differently in rural and urban spaces. This categorization—of “differential treatment” versus “spatially blind policies”—is probably the biggest takeaway the article produces because it allows future legal scholarship to build on how rural/urban differences in Family Law originate. 

In order to present their theory of categorization, the authors have to successfully engage with two separate bodies of scholarship. The first is scholarship in Family Law about the government treatment of families. The second is scholarship from law and rurality scholars that looks at rural/urban differences or place-based policies. They manage to draw on both of these bodies of scholarship and make sense of them both. In the coming years, I hope there is future work done at the intersection of rural/urban difference and Family Law. That future work will be able to rely on The Family of the City, the Family of the Country as a conceptual starting point. 

The Spatial Family, Summarising The Family of the City, The Family of the Country 

[Editor’s note: This is the first of four blog posts from a mini-symposium on Shelly Kreiczer-Levy’s and Baoshi Wang’s article “The Family of the City, the Family of the Country“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 328–353.]

Baoshi Wang and I met when we were both visiting The Vulnerability and Human Condition Initiative at Emory as visiting scholars under the guidance and supervision of Prof. Martha Fineman. We were talking about our home country, lives, families, and local laws as we came across a mutual interest: family law and care. I asked Baoshi about a new law that was passed in China at the time and made headlines in the news. According to the law, it is the duty of adult children to visit, care and respect their elderly parents, and a failure to meet this duty can result in criminal sanctions. I was both puzzled and intrigued by the law, as a scholar who has devoted time and thought to intergenerational relations in the context of inheritance law and multigenerational cohabitation. I was puzzled because in Western jurisdictions intergenerational commitments are for the most part considered moral duties, rather than legally binding obligations.  

Baoshi explained the background of this law, having its roots in a rapid urbanization process, designed and supported by state. He also explained the gaps in social security between urban and rural areas, making rural elders reliant on their children for care and support. Urbanization and social security gaps were state policy that had unintended consequences. As young people move to the city to find their livelihood, it became harder for them to visit and care for their parents. The obligation to visit one’s parent came to fix the fragmentation of the multigenerational household. Our conversation made me think about how care in the family can be dependent on spatial categories. Where you live matters for the purpose of your familial duties. I told Baoshi about an example from Israel. Family farms on state owned land are subject to a complex inheritance law regime that mandates only one heir can inherit the farm. The chosen heir is considered “the continuing son/daughter” and is customarily assigned with a duty to care for their parents in their old age. Inheritance rules thus create a divide between care expectations and practices in the city, where care is shared among all children, and care in family farms, where care is the duty of only one child. 

Thinking of these two very different cases together revealed the importance of state involvement in shaping familial commitments that differ across spatial lines. The state, we argue “constitutes and supports different familial practices in urban and rural areas.” 

In the two examples of our home countries, we identify differential treatment by state laws and policies that distinguish between rural and urban areas, resulting in a family for the city and a family for the country. This gap in care practices is not necessarily planned or desired by the state, but can be an unexpected, indirect consequence of its policies or rules.

The differing practices are not always the result of differential treatment. In our third case study, we discuss abortion law in the US (the article was written before Dobbs). In the 2010s, TRAP (targeted regulations of abortion providers) laws were enacted to require providers to have admitting privileges at hospitals nearby. In addition, providers must meet the requirements of an ambulatory surgical center. These laws caused many abortion centers to close. Although the laws were enforced in both rural and urban areas, they had a disproportionate effect on women living in rural areas.  The case thus serves as an example of what we call “spatially blind” policies and laws. Unlike differential treatment laws and policies, spatially blind laws “are similarly applied in different geographical areas” but “ignore gaps in access to medical or social services.” The result is different practices of care in the family. 

The article continues with an analysis of state actions that react to the differing practices of care with an attempt to rectify the gaps resulted by its policies. In China, it was the duty to visit, care and respect one’s elderly parents. In Israel, it was a moderate amendment to the law. In both the Chinese and Israeli case, these gaps in care were an unintended result, a byproduct of the state oversight of the potential outcome of its policies. The article can therefore serve to alert states to this potential implication of spatial policies.    

Even though the article started with a conversation about the practices of care in our respective countries, it did not end there. The laws and policies depicted in the three case studies are not necessarily unique, one may find other stories that support the same conclusion. We use these cases in a bottom-up approach to analyze various forms of state involvement that lead to a bifurcation of practices of care across geographical categories. Our goal was to contribute to the developing notion of the spatial family. The idea started under guidance of Martha Fineman, and we are grateful for her inspiring work, and in particular her work on the role of the state in shaping the practices of care. 

The Accusatorial/Inquisitorial Divide and the Interplay of Nationalism and Universalism: A Response to Readers

[Editor’s note: This is the final of four posts for a mini symposium on Amalia Kessler’s article “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 296–327, https://doi.org/10.1093/ajcl/avad022]

My deepest thanks to Jean-Louis Halpérin, Máximo Langer, and David Rabban for their thoughtful reflections on my article. I cannot do justice here to all their rich questions, but it’s a pleasure to begin thinking about these.

The nineteenth-century rise of the accusatorial/inquisitorial divide was a transnational (and to a limited extent, transatlantic) phenomenon. Given space constraints, I chose to focus on developments in France, a country whose revolution and later wars of conquest played an important role in shaping these transnational debates. The danger of this choice is unintentionally to imply a centrality to French developments. Both Halpérin and Langer correctly state that the French experience must be contextualized with a broader frame. Halpérin notes that, as compared with Carmignani and especially Mittermaier, Ortolan and Hélie were relative unknowns, much more influential in France than elsewhere. And Langer observes that the nineteenth-century construction of the comparative accusatorial/inquisitorial divide was in fact “a gradual process,” dating back to eighteenth-century efforts to distinguish between English and continental modes of criminal procedure. 

These are important points, and it would be wonderful to see further research exploring these themes, including Langer’s exciting forthcoming book. That said, as Halpérin comments, there was a distinctive national valence to how the universal categories of accusatorial and inquisitorial were deployed. There is therefore much to be learned from mapping out (and ultimately comparing) these distinctive national pathways. My hope is that my article can contribute to this broader, collective project. So too, while the nineteenth-century emergence of an accusatorial/inquisitorial framework was rooted in earlier developments, it is important to explore what precisely was unique about the new framework. Indeed, the very fact that nineteenth-century jurists felt compelled to create this new framework indicates that they believed it served purposes that an older approach did not. 

Langer suggests that, from the perspective of jurists like Ortolan and Hélie, one virtue of the new framework was that it facilitated French nationalism. In contrast to an earlier distinction between English and continental models of procedure, which tended to valorize the former, the new accusatorial/inquisitorial framework (and the concomitant conception of the French system as mixed) made it possible to identify the French model as superior. As I discuss elsewhere, Mittermaier pursued much the same nationalist project in Germany—one deeply connected to his Germanist vision of liberal nation-building. He thus insisted that, while England had come closest to adopting a pure model of accusatorial procedure, such procedure could be found in many different times and places (in the West), including not least, in medieval Germany prior to the reception of Roman law. (Kessler, “The American Importation of the Accusatorial/Inquisitorial Divide: Francis Lieber’s Failed Transplant and Its Early Twentieth-Century Resurgence, in The Learned and Lived Law: Essays in Honor of Charles Donahue (forthcoming, Brill’s Legal History Library, 2025).) But the power of the accusatorial/inquisitorial framework—for not only analytical, but also political purposes—was that it couched such nationalism in the language of universalism. It suggested, in other words, that it was mere happenstance that comparative analysis pointed to the superiority of the jurist’s own nation, presenting such superiority as an outgrowth of the particular juncture at which the nation found itself at that moment in the universal, historicist process of national unfolding.

The complex (and seemingly contradictory) interrelation of nationalism and universalism facilitated by the accusatorial/inquisitorial framework is also evident in the ways that nineteenth-century jurists built this framework. As Halpérin notes, these “comparative pioneers” engaged extensively with one another, developing shared ideas and categories, even while deploying these toward nationalist ends. If we are to explain this phenomenon, important weight must be given to the historicist nature of their analysis. The tension between the universal and the national was inherent in the model of history that these men adopted in that the embrace of certain purportedly universal historical laws made it possible to compare different nations according to their stage of evolutionary development. 

If this effort to meld nationalism and universalism seems to us today to be at best muddleheaded, or at worst a fig leaf for imperialist ambitions, it is worth considering how much has changed. Prevalent functionalist approaches to comparative law presume that societies (at least those at a roughly similar developmental stage) have common needs to which the law must respond. In this respect, functionalism would appear to stand in for discredited stadial accounts of history. And to the extent that the identified social needs happen to be consistent with the interests of the powerful, the imperialist valence persists. It is perhaps in this context that we should consider Langer’s important observation that a key part of the enduring appeal of the accusatorial/inquisitorial framework today is that accusatorialism has inspired significant procedural and judicial reforms, including especially in Latin America. A substantial literature debates the reasons for the Latin American embrace of accusatorial procedure, with many suggesting that the ostensibly universal category of accusatorialism has been deployed in service of a soft imperialism, enabling interests in the Global North to pursue their own agenda in the Global South. Langer himself has done important work countering this perspective and highlighting the role played by Latin American lawyers and activists in pressing for accusatorial reforms. (Langer, “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery,” American Journal of Comparative Law 55 (2007): 617-76.) But whatever the underlying motivations behind the reforms, they have, as Langer notes, proven disappointing to many, failing to deliver the hoped-for political, efficiency, and other benefits. While there are many reasons for such disappointment, one factor is likely the mismatch between ostensibly universal categories and more particular, national interests and agendas.

This mismatch between the national and the universal is also evident in Halpérin’s powerful observation that, strangely, Ortolan and Hélie did not focus attention on what would seem today to be key distinguishing features of French criminal procedure—namely, the creation of the public prosecutor and the role assigned to the private complainant. This choice to ignore the law in action cannot be attributed to these scholars’ distance from legal practice, since both practiced law for years, and Hélie became a judge, rather than an academic. Were they so in thrall to German legal scholarship and a universalizing conception of legal-historical development that they were unable to depart significantly from Mittermaier’s model? Perhaps—but before reaching this conclusion, I would like to know more than I currently do about contemporary French debates regarding the public prosecutor and the role assigned private complainants. It might well be the case, in other words, that Ortolan and Hélie’s silence was in itself a statement about the national legal and political context.

Rabban situates my account of the emergence of the comparative accusatorial/inquisitorial framework in France against his own fascinating research into how nineteenth-century American jurists viewed the relationship between law and history. He asks about possible parallels between French and American approaches to legal history in this period, as well as the extent to which French scholars engaged with “colleagues abroad.” A full response to these questions would require a book comparable to Rabban’s own, which to my knowledge, has yet to be written. (Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge: Cambridge University Press, 2012.) Halpérin and his co-author, Frédéric Audren, touch at times on nineteenth-century French jurists’ uses of history in La culture juridique française: Entre mythes et réalités, XIX^e-XX^e siècles (Paris: CNRS Éditions, 2013). And Donald R. Kelley’s Historians and the Law in Postrevolutionary France (Princeton: Princeton University Press, 1994) explores the interrelation of nineteenth-century French lawyers and historians. But neither of these excellent books provides a systematic account of how French jurists in the period understood historical change. That said, my sense is that there were in fact many parallels between the ways that nineteenth-century American and French lawyers conceived of law’s history. Like their American counterparts, French jurists were profoundly influenced by the German Historical School and viewed themselves as engaged in a broader transnational conversation. The French journal Thémis, established in 1819, was modeled on Savigny’s Zeitschrift and served as a vehicle for importing German legal-historical scholarship. Moreover, it covered the latest scholarly developments across Europe, including those in England. 

Borrowing from Germany, French legal scholars, like American ones, studied their nation’s native Germanic inheritance, looking to medieval traditions of local communal governance as the origin point for modern liberty. In so doing, they too sometimes used the language of “Teutonic germs.” As Ortolan himself observes, “[t]he establishment of communes was the germ [germe] of medieval constitutions,” and it is “a great and curious spectacle to see these germs . . . spread, develop, grow and cover the face of Europe with free cities . . .” (Ortolan, Cours de Legislation pénale comparée: Introduction historique, histoire du droit criminel en europe depuis le XVIIIe siècle jusqu’à ce jour; analyses du cours de 1839–40 (G. Narjot ed., Paris, Joubert 1841), 64.) That said, many French scholars, like their German contemporaries—and unlike American ones—also devoted themselves extensively to the study of Roman law and its enduring influence. Moreover, aspects of the Germanist/Romanist debate that shaped so much German scholarship were also evident in the contemporary French literature.

One of the most important contributions of Rabban’s research is to show that nineteenth-century American jurists were considerably more varied and nuanced in their historical study of the law than we have assumed. He demonstrates that, while many jurists adopted a progressive, evolutionary view of legal change, some resisted the notion that legal progress culminates in “perfection” and insisted instead on historical “contingency.” As noted, the extent to which this is true of nineteenth-century French jurists has yet to be determined in any comprehensive way. But here too, I suspect that the parallels hold. For example, as Kelley details, the Germanist jurist, Eugène Lerminier was a vehement critic of Savigny’s historicism, urging that it encouraged a dangerous conservativism by falsely assuming that the law necessarily evolves toward perfection. (Kelley, 115.) Ultimately, however, as with the comparative questions raised by Halpérin and Langer concerning the accusatorial/inquisitorial divide, so too Rabban’s comparative questions concerning nineteenth-century transnational legal-historical thought call for considerably more research. I eagerly await further interventions in these important domains.

On the Origins of the Accusatorial/Inquisitorial Divide in Comparative Law

[Editor’s note: This is the third of four posts for a mini symposium on Amalia Kessler’s article “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 296–327, https://doi.org/10.1093/ajcl/avad022]

I.Introduction: A New Research Agenda for Comparative Criminal Procedure

The categories “accusatorial or adversarial system” versus “inquisitorial system” have been central for comparative criminal procedure, among other reasons because they have been a way to explain the differences in criminal procedure between common and civil law (Langer, 2014; Langer, 2016a). It is then not surprising that there has been a rich literature about the history of these systems. The main research question for this literature has been when the features that today we associate with the accusatorial/adversarial and the inquisitorial systems emerged and consolidated in various jurisdictions. For instance, when did public prosecution and public investigation of crime emerge in continental Europe? When did the interrogation of the defendant by public officials become a central way to investigate criminal offenses in those jurisdictions? When and how did the written documentation of procedural steps and of the investigation emerge? When was trial by jury adopted and how did it change over time in England and other common law jurisdictions? When did the conception of criminal procedure as a contest between prosecution and defense before a passive umpire emerge and become dominant in common law jurisdictions? When were the contemporary common law rules of evidence adopted and consolidated? Etc. (Esmein, 1882; Chiffoleau, 2001; Langbein, 2006; Kery, 2001; Whitman, 2008:98 et seq.; Beattie, 1991; Landsman, 1990; Langbein, 2003)

In my own work, I proposed a new set of research questions for comparative criminal procedure in particular and comparative law more generally. Rather than asking when criminal procedure features that today we associate with the accusatorial/adversarial and inquisitorial systems emerged and consolidated, I proposed that we ask when scholars, judges, lawyers and other legal actors started to use the categories “accusatorial or adversarial system” versus “inquisitorial system” in particular and common law and civil law more generally to analyze the criminal process from a comparative perspective and to define what distinguishes their own law vis-à-vis the law of other jurisdictions (Langer, 2016b; Langer, 2014; Langer and Tanenhaus, forthcoming; Langer, forthcoming). More specifically, in a piece published in 2016, I posed that these new set of research questions could include: 

(1) when, how and why judges, legal practitioners, policy-makers, and scholars around the world started to think that the contrast between Anglo-American and continental European jurisdictions was central to the comparative understanding of criminal process; (2) when, how and why judges, practitioners, policy-makers, and scholars started to think that the doctrinal and institutional differences between Anglo American and continental European criminal processes were based on different epistemological paradigms for how the legal process does or should produce truthful verdicts; (3) when, how and why judges, practitioners, policy-makers, and scholars started to think that these legal and institutional differences could be explained through or were associated with differences between Anglo-American and continental European societies and cultural values and with different conceptions of the state; and (4) when, how and why judges, legal practitioners, policy-makers, and scholars started to use the adversarial and inquisitorial categories as a way to make sense of the differences between Anglo-American and continental European jurisdictions. (Langer, 2016b:274-75)

In exploring these questions, I have shown, for instance, that Sir John Fortescue was one of the first commentators, if not the first, that used the opposition between common law and civil law to analyze the criminal process in particular and the legal process more generally from a comparative perspective (Langer, 2016b). I have also argued that continental European commentators started to use the opposition between accusatorial procedure and inquisitorial procedure for comparative purposes between the end of the eighteenth century and the first half of the nineteenth century (Langer, 2014:890-92; Langer, 2016a:520 et seq.).  I have also explained that while in the twelve and thirteen centuries, the expressions “accusatorial process” and “inquisitorial process” were mainly used to refer to two types of legal processes that coexisted within the same legal system, in the late eighteenth and the first half of the nineteenth century continental European commentators started to use these expressions as tools to compare and distinguish between the legal processes of different legal systems (Langer, 2014:889-90). And I am currently exploring these questions in the history of the United States. (Langer, 2023; Langer and Tanenhaus, forthcoming)

II.Contributions of Amalia Kessler’s Article to this New Research Agenda

In her insightful article Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide recently published in the American Journal of Comparative Law, Professor Amalia Kessler takes some of these research questions and explored when and how French scholars adopted the “accusatorial system” and the “inquisitorial system” as comparative law categories between the 1830s and the 1850s (Kessler, 2023).

Kessler argues that “the immediate spark that led to comparative discussions of accusatorial and inquisitorial procedure—most especially, in Germany, Italy, and France—was ongoing debate over the French … Code d’instruction criminelle, enacted in 1808” that was imposed on portions of Germany and Italy as part of Napoleonic conquest (Kessler, 2023:301). “After the 1815 Congress of Vienna and its pact of restoration,” she continues, “extensive discussion occurred within particular national (and local) contexts regarding whether, and to what extent, to preserve aspects of French law” (Kessler, 2023:301). In constitutional discussions in this period, she argues, the term “inquisitorial” became associated with pre-Enlightenment and pre-French Revolution political absolutism, while the term “accusatorial” became associated with liberty and English common law (Kessler, 2023:301; see also Langer, 2014:890-91; Langer, 2016a:520-21; Langer, 2016b:277-78).

Kessler states that the “use of the accusatorial/inquisitorial distinction for comparative purposes appears to have first emerged in the writings of Italian and German jurists—more particularly, in treatises published by Giovanni Carmignani and Carl Joseph Anton Mittermaier in, respectively, 1832 and 1834” (Kessler, 2023:302)—a point over which I will return later. Both maintained that all criminal procedures can be placed in the spectrum between accusatorial and inquisitorial procedures. 

Relying on the work by Ludovic Primot, Kessler argues that in the specific case of France, Joseph Louis Elzéar Ortolan—who held a chair on comparative penal legislation in Paris—was the first French jurist who adopted the accusatorial/inquisitorial divide in 1839 (Kessler, 2023:300). Ortolan relied on Carmignani’s and Mittermaier’s conceptualizations of the accusatorial/inquisitorial divide. But his own French nation-building, imperial, and liberal positions, and his historicism shaped his own conceptualization of this distinction (Kessler, 2023:305-19). In this regard, Ortolan believed that Europe and France in particular were at the forefront of historical development and were more civilized than other places (Kessler, 2023:309-10). Based on this type of problematic racialized assumptions, he defended both Napoleonic conquest and French colonialism as a way to bring liberty, progress and civilization in Europe and around the world (Kessler, 2023:309-11).

Kessler also explains that relying on this historicism, Ortolan articulated a dialectic account of the history of accusatorial and inquisitorial procedure (Kessler, 2023:311-13). According to Ortolan, there were six distinct periods in European political institutions, and by the time he was writing, Europe was in the sixth and final period, the “era of revolutions”, whose second age had been initiated by the French through the Revolution of 1789 that was going to bring to the world not only liberty, but also equality (Kessler, 2023:311-12). Within this dialectic and nonlinear account of history, Ortolan argued that criminal procedure had started with the accusatorial approach, later had an inquisitorial reaction, and finally reached the synthesis provided by the modern mixed systems that combined accusatorial and inquisitorial procedure like the Napoleonic Code d’instruction criminelle of 1808 (Kessler, 2023:313). In this context, Kessler further explains, “Ortolan depicted the accusatorial and inquisitorial types simultaneously as actual, historically existing procedural systems and as theoretical models. This melding of historical description and theoretical model followed from the historicist belief that it was possible, in examining the past, to distinguish between mere contingencies and true historical events. Unlike the former, the latter were those occurrences through which it was possible to discern the gradual emergence of true procedural models (like the accusatorial and the inquisitorial), as well as their progressive refinement and perfection through time” (Kessler, 2023:313).

Like Fortescue and others (Langer, 2016b:292-96), Ortolan also argued that criminal procedure followed state’s political organization (Kessler, 2023:314).  In this regard, he maintained that absolutist regimes tended to adopt inquisitorial procedures, while liberty-promoting regimes tended to adopt accusatorial procedures (Kessler, 2023:314). Every criminal procedure could be placed in the spectrum between these two types of procedure and these two types could be combined in various ways (Kessler, 2023:314). Under accusatorial procedure, two parties engaged in a dispute before a judge and the procedure encourages equality between the parties and publicity, while in inquisitorial procedures the judicial authority is the one investigating the crime and the procedure encourages inequality and secrecy (Kessler, 2023:314-15).

But despite his liberal tendencies, Kessler explains, Ortolan did not prefer the accusatorial over inquisitorial procedure. The reason was that he associated the accusatorial model to a primitive idea of procedure that relied on private accusers, while he associated the inquisitorial model to more complex and rational societies (Kessler, 2023:315-17). According to Ortalan, with its mixed criminal process, France had found a way to combine the liberty protections of the accusatorial process—with a trial by jury at the adjudication phase—and the rationalism of an inquisitorial process that ensured the equal application of the law through a unified judicial bureaucracy that investigated crime (Kessler, 2023:317-18). And various jurisdictions had followed France’s lead or engaged in extended debate on following this lead, even after Napoleon’s defeat and the 1815 Vienna Conference (Kessler, 2023:318-19).

Kessler then argues that others in France followed Ortolan’s use of the accusatorial/inquisitorial categories, including Faustin Hélie who in his massive nine-volume Traité de l’instruction criminelle, ou théorie du code d’instruction criminelle substantially followed Ortalan’s account of the accusatorial and inquisitorial categories (Kessler, 2023:319-24).

In terms of contemporary takes-away of her piece, Kessler says that “an initial takeaway from the history detailed here might be to be suggest that these terms [i.e., the accusatorial and inquisitorial categories] are rooted in a toxic mix of nationalism, imperialism, and racism, and are thus best cast aside” (Kessler, 2023:325). But she adds that “the nineteenth-century juristic account of these categories of procedure has stood the test of time and continues to afford fruitful avenues for scholarly exploration. As we have seen, a key insight underlying the development of the accusatorial/inquisitorial framework was that there are important linkages between procedural forms and values, on the one hand, and political ones, on the other” (Kessler, 2023:325). She ends by also calling for an analysis of the accusatorial/inquisitorial divide from not only a perspective internal to law and legal institutions, but also an external perspective that explores the relationship between procedural choices and socioeconomic and cultural dimensions (Kessler, 2023:327).

This is a characteristically excellent piece of scholarship by Kessler. Her close reading and analysis of Ortolan’s work helps explaining how and why the accusatorial/inquisitorial divide was adopted in France in the late 1830s; some of the nationalistic, imperial, and even racist origins of the distinction; and why accusatorial and inquisitorial procedures were conceived of as both  historical and theoretical models by Ortolan and Hélie between the late 1830s to the early 1850s in France.

III.A Constructive Critique of Professor Kessler’s Article

In the remaining of this article, I would like to critically engage with Kessler’s piece.

First, I would like to make a friendly but important correction to the historical account of the piece. 

Kessler states:

… commentators in the second half of the eighteenth century and throughout the period of the French Revolution and subsequent restoration extensively debated criminal procedure. And these debates tended to break down, roughly speaking, between advocates of preserving the methods later identified as constituting inquisitorialprocedure (such as investigation by a public authority and adjudication exclusively by professional judges) and those arguing for the adoption of procedures later classified as accusatorial (such as private investigation and the use of a jury)…. These earlier debates, however, were framed around particular procedural choices—whether theinvestigation ought to be conducted by the state or private parties, whether guilt should be adjudicated by professional judges or a lay jury, and so forth. It was not until the emergence of the accusatorial/ inquisitorial distinction as such that the totality of these decisions came to be understood as a choice between two distinctive models of procedure—the accusatorial and the inquisitorial. (Kessler, 2023:302)

In other words, Kessler argues that before commentators like Carmignani, Mittermaier and Ortolan resignified the accusatorial and inquisitorial categories in the 1830s, criminal procedure debates were not understood as a choice between two distinctive models of procedure and rather consisted in the discussion of individual topics. 

My research indicates that this is not accurate. Already in the second half of the eighteen century and throughout the French Revolution, there were commentators and policymakers that discussed criminal procedure as a choice between two main models—the English model, on the one hand, and the model of the rest of Europe, on the other hand—even if they did not always use the terms “accusatorial” and “inquisitorial” to refer to them.

For instance, in Volume III of his very influential and monumental La scienza della legislazione, published in the early 1780s, Gaetano Filangieri dedicated over three hundred and fifty pages to his analysis of criminal procedure (Filangieri, 1783). At the start of the book, Filangieri argued that a vicious system of procedure makes its parts vicious, and that it was necessary to fix the system as a whole, in order to repair its parts (Filangieri, 1783:6). In looking for a remedy to the vices of criminal procedure in continental Europe at the time, he said he would look at the legislation of all nations from Antiquity, and he identified two methods of procedure: on the one hand, the one coming from the Roman Republic and contemporary English criminal procedure; on the other hand, the method used by continental Europe during the Ancien Régime (Filangieri, 1783:7-8, 34-35, 238, 246, 250-51, 256-57, 271-72, 299-300). He then divided his analysis of criminal procedure in six themes, but analyzed the relationship between these different themes, the broader methods of procedure and the criminal procedure goals of protecting innocence while preventing impunity throughout the book (Filangieri, 1783:9 et seq.).

The second point I would like to make is that the coming into use of the accusatorial and inquisitorial systems as comparative law categories can be understood as a gradual process, rather than as something that happened at one point in time. Kessler says that “use of the accusatorial/inquisitorial distinction for comparative purposes appears to have first emerged in the writings of Italian and German jurists—more particularly, in treatises published by Giovanni Carmignani and Carl Joseph Anton Mittermaier in, respectively, 1832 and 1834” (Kessler, 2023:302). 

Without questioning the accuracy of this statement at this time, it is important to point out that even if Carmignani and Mittermaier had been the first ones to use the accusatorial/inquisitorial categories for comparative purposes in their 1830s treatises, their articulation was the result of a gradual process, rather than their singular creation. As I already pointed out, the idea of criminal procedure as a system predated Carmignani and Mittermaier, as it did the idea that there were two main procedural models that could be associated with contemporary England, on the one hand, and with the Ancien Régime of continental Europe, on the other hand.

Giving content to the accusatorial and the inquisitorial systems was also a gradual process. For instance, already in the 1780s, Filangieri associated the private accuser of accusatorial procedure with the publicity of the accusation and the publicity of proceedings (Filangieri, 1783:34-35). He also said that it was an inquisitorial operation a procedure in which the judge who adjudicates is the one who in secret must spy, discover the true author of the offense, investigate the circumstances of the offense, and manage the criminal process, keeping even the defendant in the dark about the content of the accusation and the investigation (Filangieri, 1783:32, 34-35). This inquisition also enabled putting someone incommunicado in pretrial detention based on weak elements of proof (Filangieri, 1783:32, 35-36). These are features that defined the accusatorial and inquisitorial procedure also for Carmignani, Mittermaier, Ortalan, and Hélie who directly or indirectly, aware or unaware, built upon conceptualizations like Filangieri’s.

The third historical point I would like to make is that besides zooming into the 1830s-1850s in France as Kessler magisterially does, it is important to put the work of Ortolan and Hélie within a broader historical arch.

For instance, the idea that there is a relationship between types of criminal procedure and types of political regimes was not an innovation by Ortolan and Hélie. As I have shown in my work, Fortescue already argued in the second half of the fifteenth century that there was such as relationship (Sir John Fortescue, 1949; Sir John Fortescue, 1997:17-23, 27-28, 51-53; Langer, 2016b:292-96). Montesquieu also pointed out that there was such a relationship in L’esprit des lois (Montesquieu, 1748, 17, 153, 174). In the 1780s, Filangieri also pointed out to this relationship and argued that despotism was one of the causes that explained features of the criminal procedure of the Ancien Régime (Filangieri, 1783:31, 38), associated civil liberty with England (Filangieri, 1783:317), and engaged with Montesquieu’s work in discussing the relationship between features of criminal procedure and types of political states (Filangieri, 1783:39-45).

Similarly, Ortolan and Hélie were not the first that used history to analyze the criminal process and infer models or methods of procedure from it. For instance, as already pointed out, Filangieri also heavily relied on history to make his own comparative analysis of the criminal process.

Also, the generation of Ortolan and Hélie was not the first to discuss mixed procedures. Using again Filangieri as an example, he said that the two methods of procedure that he identified could be combined and help each other (Filangieri, 1783:8). He also wondered whether accusatorial procedure and inquisitorial procedure could be both public, respect the dignity of citizens, and secure the innocent, and asked whether there was a way to combine inquisitorial procedure with what he called the simplicity of the accusatorial procedure (Filangieri, 1783:70, 75). For cases in which no private citizen accused, he then proposed an inquisitorial procedure that would be public and in which there was a clear distinction between the function of adjudicating that would be in the hands of the judge and the function of investigating and prosecuting that would be in the hands of a different public official who would be a prosecuting magistrate (Filangieri, 1783:71-79).

These three sets of historical points I have made are important to provide an accurate and nuanced account of when, how, and why, the accusatorial and inquisitorial systems became central categories for the comparative analysis of criminal procedure. 

These sets of points are also important to identify what was original and what it was not in Ortolan’s and Hélie’s accounts of accusatorial and inquisitorial procedures. As I have explained, it was not original for them to associate types of criminal procedure with types of political regimes. Even the connection they made between inquisitorial procedure and accusatorial procedure and their respective features, and despotism and liberty-promoting regimes respectively was not original or at least not fully original.

As I have shown in my analysis of Fortescue, it was also not original for them either to use comparative law in general and the opposition between English and continental European jurisdictions for nationalistic and legal identity purposes (Langer, 2016b:280-84; Langer, 2005; Langer 2014:895). But while Fortescue and many others after him used the opposition between common law and civil law to channel such nationalistic impulses,^[i] Ortolan and Hélie used the opposition between accusatorial and inquisitorial systems to channel these impulses. As importantly, in contrast to both English commentators and to eighteenth century continental European Enlightenment thinkers that had considered English criminal procedure superior to the continental European one, Ortolan and Hélie used the accusatorial and inquisitorial systems to argue that French and other Continental criminal procedures were superior to English criminal procedure. And Ortolan and Hélie made this French nationalistic move by using the concept of mixed procedure to distinguish French criminal procedure at their time from both the contemporaneous accusatorial system of England and the inquisitorial procedure of France’s past. It is only once we put Ortolan and Hélie in a broader historical arch that these points become apparent and can be highlighted.

Similarly, as I have illustrated with Filangieri, Ortolan was not the first to use history to comparatively analyze common and civil law jurisdictions. But his Hegelian historicism enabled Ortalan to make the French nationalistic moves just explained. It was also through this historicism that he could express his troubling imperialistic and colonialist positions that came hand-in-hand at the time with racist assumptions.

The three sets of historical points I have made are also important if one wants to use the origins of the accusatorial and inquisitorial systems to assess their contemporary purchase, as Kessler does towards the end of her article. If the adoption of the accusatorial and inquisitorial categories for comparative purposes was a gradual process and part of a broader historical arch, one can argue that the use of these categories for these purposes was the product of not only early-to-mid nineteenth century continental European historical, legal, and political thought, but also the Enlightenment and possibly other historical periods.

IV. Conclusion: On the Endurance of the Accusatorial and Inquisitorial Categories in Comparative Law  

Kessler ends her piece by arguing that despite some of the troubling nineteenth-century origins of the contemporary use of the accusatorial/inquisitorial divide from comparative purposes, “the nineteenth-century account of these categories of procedure has stood the test of time and continues to afford fruitful avenues for scholarly exploration.”

I agree with Kessler that these categories continue to afford fruitful avenues for scholarly exploration, and this is one of the reasons why they have persisted over time. As I have argued elsewhere, many elements of the accusatorial and inquisitorial systems—such as the opposition between a criminal process conceived of as a dispute between two parties before a passive umpire versus a criminal process conceived of as a unitary official investigation—help explain important differences between the criminal processes of different jurisdictions until our time (Langer, 2016a:523; Langer, 2004; Langer, 2005; Langer and Roach, 2013). These categories can also generate interesting hypothesis for legal and socio-legal analysis and, when used carefully, can be used to discuss a large number of jurisdictions at once (Langer, 2016a:525-26). These is also no question that there are still fruitful and powerful avenues for scholarly analysis of the relationship between different conceptions of the criminal process and different political regimes and socio-economic and cultural dimensions (Damaška, 1986).

But another reason why the accusatorial and inquisitorial systems have endured as comparative law categories is because the accusatorial system has provided an agenda for criminal procedure and judicial reform until our time. The wave of Latin American accusatorial reforms of the last few decades—under  which almost every Spanish speaking country of Latin America has introduced a new criminal procedure code described as “accusatorial”—provides clear illustration of such a phenomenon (Langer, 2007). For many of these reformers, pushing for an accusatorial criminal procedure has been a way to advance and finally realize the criminal procedure program of the Enlightenment and of liberal groups from nineteenth century continental Europe that included oral and public trials, trial by jury, a separation of the prosecuting and adjudicating functions, and a full panoply of rights for criminal defendants (Langer, 2007; Langer, 2020). They were convinced that these accusatorial reforms would bring more accurate, fair, transparent, and efficient criminal proceedings (Langer, 2007).

Whether the recent wave of accusatorial reforms in Latin America and elsewhere have delivered on their promise is very much an open question. The available empirical studies have shown mixed reforms’ results vis-à-vis the reforms’ promises (Bergman and Langer, 2015; Brasher Tiede, 2011; Lillo, 2023; Magaloni and Rodriguez, 2020; Sánchez Mejía, 2023; Zorro Medina, 2023). One of the reasons for these mixed results may be that lots have changed in the world since Enlightenment and nineteenth century legal thinkers and actors articulated their reform agendas inspired by Anglo-American law and the accusatorial system. Rather than oral and public trials, trial by jury, separation of the prosecuting and adjudicating functions, and a full panoply of rights for criminal defendants, accusatorial reforms have brought in many, if not a majority of cases plea bargaining and other trial-avoiding conviction mechanisms. And through plea bargaining and other trial-avoiding conviction mechanisms prosecutors have become contemporary inquisitors who de facto adjudicate the cases they investigate and charge, in proceedings that mostly transpire behind close-doors and in which defendants must waive rather than exercise their rights (Langer, 2021; Langer and Sozzo, 2024). One can only wonder what Enlightenment and nineteenth-century legal thinkers and reformers that looked for inspiration in Anglo-American criminal procedure and pushed for accusatorial reforms would say and how they would analyze these neo-inquisitorial ways to impose criminal punishment under accusatorial clothes.

Thank you to Agustín Mogni for his research assistance.

^[i] Fortescue used the opposition between common and civil law, but also the more specific opposition between trial by jury and trial by witnesses to channel his nationalistic impulses (Langer 2016b) In line with this tradition and in parallel to Ortolan and Hélie in France, in the nineteenth century in the United States, Francis Lieber partially resignified the opposition between accusatorial and inquisitorial procedures to argue for the superiority of common law over civil law criminal procedure (Lieber 1853, 168, 182-83, 408-14; Lieber 1858, 70-79, 235-248). Lieber earlier referred to the opposition between inquisitorial process and process by accusation, in Lieber 1839 622-23, note 4. But it was in his On Liberty and Self Government (Lieber 1853; (Lieber 1858) that he fleshed out his views on these categories. Professor Kessler has recently covered Lieber’s role in this regard in another excellent forthcoming piece (Kessler, forthcoming 2025. For contemporary examples of the continuing persistence of this tradition of common law pride vis-à-vis civil law jurisdictions, see, e.g., Sklansky 2009.

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Langer, Máximo, (2016a) Strength, Weakness or Both? On the Endurance of the Adversarial and Inquisitorial Systems in Comparative Criminal Procedure, in Research Handbook on Comparative Criminal Procedure 519 (Jacqueline Ross & Stephen Thaman, Edward Elgar Publishing, 2016).

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[Editor’s note: This is the second of four posts for a mini symposium on Amalia Kessler’s article “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 296–327, https://doi.org/10.1093/ajcl/avad022]

In analyzing the emergence of the comparative accusatorial/inquisitorial divide, Amalia Kessler convincingly places French jurists in the broader context of the historical study of law during the nineteenth century.  She observes that Ortolan and Helie, the two French scholars on whom she primarily focuses, exhibited many of the features that I ascribe to legal thinkers in Europe and the United States in my 2012 book, Law’s History:  American Legal Thought and the Transatlantic Turn to History.  She highlights their emphasis on the evolution of the nation-state, often compared to a living organism, and their distinction between accidental occurrences and meaningful historical events.  In my comments, I will elaborate American approaches to the historical study of law.  To the extent that this elaboration raises issues that Kessler does not cover, I am curious to learn if French jurists also addressed them. 

Many American legal scholars endorsed the “Teutonic-germ theory,” which traced the English common law and its subsequent development in the United States to the Germanic tribes that conquered England.  They asserted the German origins of specific institutions, including the jury trial, the English parliament, and American legislatures, and of national racial characteristics such as personal freedom, self-reliance, and self-government.  A few of these scholars claimed that people who did not descend from Germanic tribes could not assimilate into the United States and should not be allowed to immigrate.  But most did not, and James B. Thayer explicitly supported equal rights for native Americans.

The Americans generally treated the evolution of “Teutonic germs” over time as a progressive development.  Like the Hegelian synthesis of accusatorial and inquisitorial procedure Kessler observes in Ortolan and Helie, some Americans viewed legal progress as leading toward a perfection which would terminate the historical process.  But most viewed history as a process of continuous change that would never end.  Many also stressed the contingency of history, citing major developments that could have turned out differently, such as the decline of equity in English secular courts and the establishment of judicial review in the United States.

Just as Ortolan believed that progress in the evolution of criminal procedure was not linear, many Americans referred to legal progress in their specialized fields as “undulatory,” marked by “vicissitudes,” and often receding before ultimately prevailing.  They often asserted that the Norman Conquest produced a major “break” in the progress from Teutonic germs to contemporary Anglo-American law by introducing feudalism to England.  And just as Ortolan believed that France had progressed further than England by overcoming the “vestiges of the Middle Ages and feudalism” in its criminal law and by refining accusatorial procedures to promote modern goals of rationalism and equality, Americans observed more broadly that law in the United States had advanced beyond its English origins by promoting individualism, equality, and democracy.  These observations also reflect Kessler’s point about the link between law and broader political views.  Just as French scholars associated accusatorialism with liberty and inquisitorialism with authoritarianism, American scholars portrayed the First Amendment as the constitutional embodiment of the commitment to popular sovereignty won through victory in the Revolutionary War.  Yet many American scholars questioned whether history is ultimately progressive at all.  For example, Melville B. Bigelow lamented that the decline during the Anglo-Norman period of the prerogative of English kings to issue new writs produced “the endless train of subtleties reaching down to the present day, which have so often resulted in the perversion of justice.”

American scholars often maintained that evolving custom is the source of law.  Reflecting the debate between Savigny and Jhering in Germany, some viewed evolution as a gradual, even unconscious, process, while others viewed it as a struggle between competing forces.  Many asserted that custom generally evolves more rapidly than law.  They stressed that some existing law, which served the customs under which it arose, could not be adapted to evolved customs and had become dysfunctional.  By identifying dysfunctional law that should be reformed, these scholars viewed their historical research as a service to judges and legislators.  They generally believed that judges are more effective than legislators in detecting and responding to evolving custom, but they preferred legislation to adjudication in periods of rapid social change.

Kessler describes Ortolon’s embrace of historicism as a rejection of the exegetical school in France.  The nineteenth-century American scholars themselves proclaimed that their historical study of law initiated a distinctive jurisprudential school of inductive science, which they compared favorably to prior schools of natural law and analytic jurisprudence.  The American historical school investigated and debated many subjects, from narrow topics within technical areas of law to broad questions about the history of common law, such as the relative weight of Anglo-Saxon and Norman influences and the extent to which the English common law developed distinctively after the Norman conquest.  Kessler’s article understandably focuses on the accusatorial/inquisitorial divide, but I’m curious about the range of issues to which French scholars applied their historical method.  Because members of the American historical school interacted extensively with each other and with their counterparts in Germany and England (though not in France), I’m also curious about possible interactions of the French scholars with each other and with colleagues abroad.

Law in Books and Law in Action: about the History of Criminal Procedure

[Editor’s note: This is the first of four posts from a mini symposium on Amalia Kessler’s article “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 296–327, https://doi.org/10.1093/ajcl/avad022]

From the perspective of a comparative history of legal doctrines, Amalia Kessler offers a particularly stimulating study of the emergence in the nineteenth century of the dichotomy between accusatorial and inquisitorial proceedings. While these terms continue to be the subject of lively debate in the field of comparative law (in particular to contrast or reconcile the common law and civil law traditions), research on the introduction of these two categories of criminal procedure into the books of legal scholars has been lacking until now. Amalia Kessler discovers this ‘forgotten history’ through in-depth research into the literature of the European criminal jurists of the early nineteenth century. She identifies the emergence of these terms and their binary opposition in the work of Mittermaier, Carmignani and Ortolan, i.e. in the first specialists of criminal law to undertake a comparative study (in space and time) of procedural rules in Germany, Italy and France. This survey confirms the extent to which the literature devoted to criminal law quickly blossomed after Beccaria, giving rise to the publication of thousands of papers in continental Europe and to the first significant developments in comparative law.

One of the main goals of research into the comparative history of law is to identify and contextualize legal concepts or categories that we tend too easily to take for granted. In the field of criminal law and procedure, the first three decades of the nineteenth century constituted a pivotal period: after the extension given to Napoleonic codification by French imperialism, the monarchical Restoration and the emergence of liberal claims gave birth to vivid debates about the orality of procedure, the rights of defense and the criminal jury. Amalia Kessler shows how informative it is to contextualize books and journals published within the space of a generation with the political and legal context in which the authors lived: for Mittermaier, the Grand Duchy of Baden, one of the most liberal of the German constitutional states; for Carmignani, the Grand Duchy of Tuscany, where most of the inquisitorial procedure was maintained; and for Ortolan, the France of the July Monarchy, which combined an inquisitorial-style instruction with trial by jury in an oral procedure. This is a fine example of how to combine intellectual, political and legal history by following three authors who read each other and adapted their discourse to their legal-political environment.

As a French reader of this fascinating study, I understand better why Esmein, the founding father of legal history as an academic discipline in France, drew inspiration from Ortolan to describe this evolution from an accusatory procedure (in feudal times) to an inquisitorial procedure (triumphant with the ordinance of 1670) and then, after the Revolution, to the mixed procedure of the Code of Criminal Instruction of 1808 (A. Esmein, Histoire de la procedure criminelle en France, Larose et Forcel (1882)). I am more surprised by the role given to Ortolan’s figure in a rather unproductive French penal doctrine compared with the abundance of works published at the same time in Germany and Italy. Although this professor of the Faculty of Law in Paris was the first to have a chair devoted exclusively to criminal law, and even to comparative criminal law, he remained a rather isolated author whose historical knowledge (especially of literature in German) remained modest.

The decisive role seems to me to be played by Mittermaier. In his 1809 book on evidence, republished in 1821, he presented the evolution of the accusatory procedure towards the inquisitorial as fundamental (J. Mittermaier, Theorie des Beweises in Peinlichen Prozesse, J. W. Heyer (1821)). This was a progress for him: the criminal trial at the hands of the prosecution of the victim, with its random and subjective character, was replaced by an inquisitorial trial dominated by an impartial judge, thanks to canon law and modern philosophy. French law, which Mittermaier still presented in the form of the Revolution before the publication of the Napoleonic Code of 1808, has restored certain forms of accusatory procedure through jury and oral debate, which seems to be favorable for freedom according to Mittermaier. As Carmignani, who was very anti-French, defended the inquisitorial procedure, it seems to me that Ortolan transformed Mittermaier’s idea of a transaction between the two systems to exalt the French codification.

The circulation of ideas between these comparatist pioneers did not prevent nationalist interpretations of the dichotomy between accusatory and inquisitorial. It is particularly remarkable that this law in books completely ignored what made the originality of the French law in action: the institution of the public prosecutor dating back to the fourteenth century and the role given to the complaint of the victim who, by claiming compensation, was such as to confer certain rights in the procedure. Moreover, these authors from the European continent did not at all intend to oppose the adversarial procedure of common law to the codes. The study of Amalia Kessler has the great merit of showing how law in books can be far removed from law in action.

Martti Koskenniemi giving the John Sumner Stead Annual Lecture at the University of Baltimore School of Law

RSVP by September 18th at: https://www.eventbrite.com/e/john-sumner-stead-annual-lecture-speaker-martti-koskenniemi-tickets-1002725056637?aff=oddtdtcreator

Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, a Book Review – Part II

[Editor’s note: this is the second of two posts featuring the book Constitutional Crowdsourcing by Antony Abat Ninet, (Edward Elgar Monographs in Constitutional and Administrative Law, 2021)]

One of the main arguments that the book focused on is the constants for “Rights and Freedoms” and the “State and Society” provisions are positive and statistically substantial for the former, showing that draft articles related to these two subjects were more likely to change based on public response. In contrast, the coefficient for “Independent Bodies” is negative and statistically momentous, signifying that provisions related to this topic were less likely to change based on public demand. Thus, the outcomes suggest that it’s crucial for the constitution to address common demands, such as rights-related text. Public concerns that are raised frequently and vocally are more likely to be included in the constitution. Also, both control variables for contentiousness of each article have positive links with the likelihood of change, but this connection is momentous only for state-owned media coverage. This is imperative because contentiousness of provisions can be a perplexing variable that disturbs both the likelihood of almaslah al‘amah (public interest) in the issue and the likelihood of change. The media tends to cover provocative provisions more often and this increases the probability that online participants took an interest in various articles through votes and commentaries and the prospect that numerous iterations of an article were needed before pact could be reached. Although public news coverage has an important connection with the chance of change, its association with public observations and votes is close to zero, demonstrating that contentiousness of provisions is not a momentous cause of the result. In fact, the important correlation between State News Coverage and the prospect of change in the draft could be due to the fact that when provisions change more often, they would result in more reports by the public media platforms. In other words, the cross-level contact term has a positive sign, meaning the effect of the rights and freedoms provisions on the relation between the online vote and constitutional change is optimistic and therefore the chance of change rises if draft provisions are related to rights and freedoms. Not only the difference between rights and freedoms and other articles is expressively higher for positive online votes, but also the estimation is more precise. Yet, this, should not cast doubt on the implication of the findings on the role of online votes in prompting different constitutional provisions or texts.

Mexico as a Case Study – The book notes, that the enactment of the first local Constitution in Mexico is to be seen theoretically as another landmark towards democratization. But a multifaceted local political scenario and a national distrust in government raised some inquiries about the real utility of a new constitution for Mexico. In January 2016, both chambers of Congress approved a constitutional amendment, that would grant Mexico City more autonomy regarding federal authorities (not sovereignty), through its first Constitution. This accomplishment was the result of a dubious negotiation process among political parties with almost no civic participation that threatened a lack of legitimacy of the Constitutional Assembly, and in general, in the whole constitutional process. The book argued that the initial perspective to generate social participation in the drafting process is to advance a collaborative editing tool where members of the Drafting Group would post essays on themes with comments and feedback generated by citizens and experts (a mechanism that would channel views, notions, and suggestions generated by the people about the Constitution). The result was a digital platform used to design both an informative resource on the constitutional process and to serve as a tool that would endorse civic participation and integrate all citizen contributions to the constitution.

Within the drafting process numerous questions on sensitive topics (e.g., distrust in government; corruption; transitional justice; human rights violations, etc.…) could be considered as intricate as constitutional matters prove to be unappealing to a general public. Thus, to generate a comprehensive and rich call for proposals, it is significant to explore alternative participation channels in addition to the classical collaborative editing trend to crowdsource. So, this case study showed robustly, that the collective reflection process – always – envisioned to start in a platform emerged in many articles of a constitutional itinerary. It’s a pioneering collaborative editing tool and it may become a stage that would funnel different types of citizen input towards the co-creation of a constitutional plan. This platform should be active, so that even if participatory channels are open, individuals won’t occupy them unless they’re given diverse instruments to express their opinions – mechanisms that match their levels of public engagement – and interest in public affairs. A strong believer in open government, sometimes realize that the lack of extensive interest in the joint editing tool came as unsatisfactory but rather unsurprising news. When talking about the future of co-creation apparatuses and processes in public affairs, and maybe the future of open government per se, it’s important to think whom these tools and processes are intended for. If not, the gap between the complexity of the tools and the real common (public) interest they generate to citizens will just keep getting greater, and the open government plan might burst to dissatisfaction in times of democratic fizziness, just when it is desired.

In conclusion, Ninet’s book shows that online public participation in various countries globally is effective and public deliberation affected the prospect of constitutional change. Also, the consequences point to the conditions that make participation effective: popular demands are accounted for as long as they are made more frequently, and more significantly, as long as the political parties honor their ex ante agreements. When the public agrees on the most critical matters and makes reliable demands on constitution drafters, there remains little room for ignoring those demands. Hence, the questions of most concern to the public that are most commonly and loudly needed are more likely to find their path into the constitution. Most important is a prior promise (consensus) among elites over the proposal of the constitution and the political institutions. It is generally well-known that, any constitutional crisis and the political clash that arose came as a result of the failure of the two major opposition groups (e.g., Democrats v. Republicans; Islamists v. non–Islamists) to reach a compact consensus.

The book concludes that without a solid deal and a road map for transition, each group will fight to ensure its political stability and future survival. Accordingly, rather than attempting to rescue the transition process towards democracy and constitutional legitimacy via bargaining with the opposition, each group sets out to grasp power from the other by resorting to any means or ways possible even if it meant bringing back dictatorship into politics (e.g., Brasil). The political antagonism between different/opposing groups will lead in the end, a specific group to alienate others and to write a constitution that reflected the former’s ideology. It should be noted that the boycott is a turning point in the constitutional process that prompted an all-out political clash. The constitutional design means the initial plan for the constitutional process and that is responsive to public demands, and always indicates that online public input is effective as long as the initial agreement is honored. Public input is constantly rendered unsuccessful when all channels of communication and compromise between the two opposing parties fail and end up in public unrest. Most case studies cited in the book demonstrates that, given these conditions, public deliberation can affect the drafting of the constitution. Yet, consulting citizens is less about what goes into the constitution and rather how the public is involved in the process. Public contribution is a democratic practice per se, which is very vital in transitional societies with long histories of totalitarianism and tyranny. Such participatory processes permit for democratization of popular sovereignty, and citizens can participate in a democratic experience where they have a fundamental role in the writing [and the enactment] of their constitution.

Throughout the 160 pages of the book, it is emphasized that the Constitution making after the Third Wave of democracy has changed to echo the normative alarms related to “crisis of representation” related to delegative and competitive concepts of democracy. The “Third Wave of Democracy” refers to a global surge in democratization that occurred predominantly from the mid-1970s to the early 2000s. During this period, many authoritarian regimes transitioned to democratic forms of government across Latin America, Eastern Europe, Asia, and parts of Africa and the Middle East. Key factors contributing to this wave include the fall of dictatorships, pressure for democratic reforms, and the spread of ideas facilitated by globalization and advancements in communication technology. While the Third Wave brought about significant democratic gains, it also faced challenges and setbacks. Some countries experienced democratic reversals, where initial democratic reforms were rolled back, or transitions to democracy were incomplete, leading to hybrid regimes or authoritarian relapses. Hence, the Third Wave of Democracy represents a period of profound global transformation, where democratic ideals spread and took root in societies across the world, reshaping political landscapes and inspiring movements for political change.

Participatory constitution making, as such, is an evolving practice and progressive countries use some modes of common engagement when drafting a new constitution. It concludes that crowdsourcing during the deliberation stage of the constitution drafting and shows that online public feedback expressively affects the prospect of constitutional changes. This result may be specific to particular countries and cannot be generalized unless an inclusive cross-national test of citizen input and constitutional changes is achieved. Popular preferences would be reflected in the constitution if citizens approve on the most striking issues and convey them more recurrently, and as long as there is an ex ante ijma‘a among constitution drafters on the overall design of the constitution. This outcome speaks to the democratic theory by presenting evidence that public constitutional deliberation can affect the constitutional drafting.

After decades of autocracy, the constitutional process in various nations around the world allowed citizens to contribute to the authorship of their constitution and to convey their desires and hopes to the Constituent Assemblies. The statistical results presented – in many examples – prove that as the online public approval over draft articles amplified, the anticipated provisions were less likely to change and if the online public censure increased, draft articles were more likely to change. Further, the results propose that comments/feedbacks on articles concerning individual and civil rights were more likely to be positively merged in the constitution compared with those about political institutions. In case of political congestion or stagnation among political boycott, online public responses were less likely to impact the content of constitution. The failure of drafters to reach a solid pact over the constitutional design destabilized their efforts in engaging the public in a democratic constitutional process and paving the ground for transition to democracy.

Eventually, any fragile promise broke down and ruined the participatory constitution-making process, however, long negotiations between different political parties allow for less political disharmony and a more operative participatory process. If all parties are suspicious of each other from the beginning, input did make a difference when all sides are eager to play by the rules of the transition process and keep engaging with the general public. But some cases, show how a risky balance among elites can smash and leave the citizenry excluded from the process. Five lessons seem mainly prominent for any nation intent on trying this at home:

1. Plan Carefully: this does not go without saying, because, although the crowdsourcing moment could have led to a worthy purposeful and deliberative feedback loop between the crowd and the constitutional powers (councils/assemblies), the latter did not always seem to have the time, tools, or training needed to process carefully the crowd’s contribution, explain its use of it, let alone return reliable feedback to the public.
2. Publicly Justify/Debate Procedural Design Options: a constitutional process purposes to be integral (or thorough), inclusive and transparent, so must the reasoning behind crucial design choices. It might truly have been a good clue to make a discussion of the process part of a national forum or use crowdsourcing at that early stage too.
3. Be Aware of The Requirements for Change: circumstances for constitutional change are themselves normally not up for discussion (dictated by the current constitution), it might have been wiser to go for the less ambitious goal of reviewing a few vital articles than rewriting the whole charter. This will be different for a state writing a constitution for the first time.
4. Do Not Try to Evade Entirely Other Prevailing Representative Institutions: constitutional authorities saw themselves as strangers to the system fighting deep-rooted elites. That attitude may have played out well just after disasters, but on the long run it damaged their legitimacy and jeopardized their task. The success of any constitutional process is basically dependent on uniting key political actors and upholding legality all over.
5. Use Experts Intelligently: the role of expert consultants in the process should be illuminated and a practical division of work worked out with (mainly constitutional assemblies’ members). Including attorneys/legal scholars in the wording of the constitutional proposal is perhaps a good idea (to ensure language/interpretation accuracy and compatibility with universal norms). Sometimes, it ends up twisting the drafters’ intent (a violation of popular sovereignty), but they accurately deteriorated the quality of the proposal.

Some experiments have unquestionably confronted the interpretation that a constitutional process must be exclusionary and mysterious, creating a precedent for a more democratic design. Let us hope – as the book concluded – it will inspire more tryouts of the kind in the near future.