The Accusatorial/Inquisitorial Divide and the Interplay of Nationalism and Universalism: A Response to Readers
October 24, 2024
[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, XIXe-XXe 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.