Law in Books and Law in Action: about the History of Criminal Procedure
September 27, 2024
[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.