On the Origins of the Accusatorial/Inquisitorial Divide in Comparative Law
October 11, 2024
[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.
References
Beattie, J.M. (1991), Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 Law and History Review 221.
Bergman, Marcelo & Langer, Máximo (2015) El Nuevo Código Procesal Penal Acusatorio: Aportes Empíricos para la Discusión en Base a la Experiencia en Provincia de Buenos Aires, 2015 Revista de Derecho Procesal Penal 51.
Brasher Tiede, Lydia (2011), Taking rights seriously in Chile, 15 Int’l J. Hum. Rts. 1275.
Chiffoleau, Jacques (2001), Avouer l’inavouable: l’aveau et la procedure inquisitoire a la fin du Moyen Age, in L’aveu 57 (Renaud Dulong ed., 2001).
Damaška, Mirjan (1986) The Faces of Justice and State Authority: A Comparative Approach to the Legal Process.
Esmein, Adhemar (1882), Histoire de la Procédure Criminelle en France.
Filangieri, Gaetano (1783) La scienza della legislazione, Tomo III (edizione prima veneta).
Fortescue, Sir John (1949), De Laudibus Legum Angliae (edited and translated by S.B. Chrime) (originally written circa 1468-71),
Fortescue, Sir John (1997), On the Laws and Governance of England 17-23, 27-28, 51-53 (Shelley Lockwood ed.)
Kery, Lotte (2001), lnquisitio – denunciatio – exceptio: Moglichkeiten der Verfahrenseinleitung im Dekretalenrecht 87 ZRG 226
Kessler, Amalia (2023), Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide, 71 Am. J. Comp. L. 296.
Kessler, Amalia (forthcoming, 2025), 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 (on file with the author).
Landsman, Stephen (1990) The Rise of the Contentious Spirit: Adversary Procedure in Eighteen Century England, 75 Cornell Law Review 497.
Langbein, John H. (2003), The Origins of Adversary Criminal Trial.
Langbein, John H. (2006), Torture and the Law of Proof: Europe and England in the Ancien Regime (with a new preface).
Langer, Máximo, (2004) From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int’l. J. 1.
Langer, Maximo, (2005), The Rise of Managerial Judging in International Criminal Law, 53 Am. J. Comp. L. 835.
Langer, Máximo, (2007) Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery, 55 Am. J. Comp. L. 617.
Langer, Máximo and Roach, Kent, (2013) Rights in the Criminal Process: A Case Study of Convergence and Disclosure Rights, in Handbook on Constitutional Law 273 (Mark Tushnet, Thomas Fleiner and Cheryl Sunders eds.).
Langer, Máximo (2014) The Long Shadow of the Adversarial and Inquisitorial Categories, in Handbook on Criminal Law 887 (Markus D. Dubber & Tatjana Höernle eds., Oxford University Press)
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).
Langer, Máximo, (2016b) In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems and Common and Civil Law in Comparative Criminal Procedure, in Visions of Justice. Liber Amicorum in Honor of Professor Damaška 273 (Bruce Ackerman et al. eds., Duncker & Humblot, 2016).
Langer, Máximo, (2020) Julio B.J. Maier: modelo de jurista, maestro, juez y hombre público, 9 Revista de Derecho Penal y Criminología 42.
Langer, Máximo (2021) Plea Bargaining, Conviction without Trial, and the Global Administratization of Criminal Convictions, 4 Annual Review of Criminology 377
Langer, Máximo, (2023), Is “Our Adversary System” Younger Than my Grand Parents and Even my Parents: Historical Anachronism, Due Process and American Legal Identity, paper presented at the workshop Transnational Exchange in the Development of Criminal Law Thought: Western Europe and the United States, 19th and 20th Centuries, organized by the France-Stanford Center for Interdisciplinary Studies, Paris, May 26, 2023.
Langer, Máximo and Máximo Sozzo, (2024) Plea Bargaining in Latin America, in Research Handbook of Plea Bargaining 83 (Máximo Langer, Mike McConville, and Luke Marsh eds.).
Langer, Máximo And Tanenhaus, David, The Arc of American Juvenile Justice: From Flexible Due Process to Adversarial Power, 1870-2020 (Oxford University Press, forthcoming).
Langer, Máximo, A Global History of Criminal Procedure: Agendas and Ideals in the Development of the Adversarial and Inquisitorial Systems (forthcoming).
Lieber, Francis, (1853), On Liberty and Self Government 168, 182-83, 408-14.
Lieber, Francis, (1839), Manual of Political Ethics 622-23, note 4.
Lillo, Ricardo (2023) Condenas sin juicio en la justicia penal chilena. Resultados de un estudio empírico exploratorio en la jurisdicción de Santiago, in Justicia penal y mecanismos de condena sin juicio. Estudios sobre América Latina 227 (Máximo Langer and Máximo Sozzo eds.).
Magaloni. Beatriz & Rodríguez, Luis, (2020), Institutionalized Police Brutality: Torture, the Militarization of Security, and the Reform of Inquisitorial Criminal Justice in Mexico, 114 American Political Science Review 1013.
Montesquieu, Baron de (1748) I The Spirit of Law (Thomas Nugent trans., revised edition 1900).
Primot, Ludovic (2010), Le concept d’inquisitoire en procédure pénale: représentations, fondements et définition.
Sánchez Mejía, Astrid Liliana (2023), Mujeres, delitos de drogas, preacuerdos y aceptaciones de cargos en Colombia, in Justicia penal y mecanismos de condena sin juicio. Estudios sobre América Latina 299 (Máximo Langer and Máximo Sozzo eds.).
Sklansky, David Alan (2009), Anti-Inquisitorialism, 122 Harv. L. Rev. 1634.
Whitman, James Q. (2008), The Origins of Reasonable Doubt. Theological Roots of the Criminal Trial 98 et seq.
Zorro Medina, Ángela (2023), Una evaluación experimental de los acuerdos penales en Colombia, in Justicia penal y mecanismos de condena sin juicio. Estudios sobre América Latina 361 (Máximo Langer and Máximo Sozzo eds.).