Research Handbooks in Comparative Law series
Edited by Jacqueline E. Ross and Stephen C. Thaman
Chapter 6: Procedural economy in pre-trial procedure: developments in Germany and the United States
Almost from the adoption of the Constitution, it has been apparent that the provisions dealing with criminal procedure represented a set of ideals rather than a code of practice. (Goldstein, 1974: 1009)1.INTRODUCTIONFor decades, comparative law scholarship that focused on Western criminal justice systems regularly viewed national legal systems through what A. Esin …rücü calls a ‘[t]raditional black-letter law-oriented (rule-based)’ framework that was ‘normative, structural, institutional, and positivistic’ (…rücü, 2006: 449). Seen through this lens, scholars categorized most of the world’s criminal justice systems as adversarial, inquisitorial, or mixed systems. According to conventional scholarship, these two alternative models captured the essential structural differences that reflected competing visions of criminal law and procedure (Van Koppen and Penrod, 2003: 2). As the field of comparative law has continued to develop, theorists such as Mauro Cappelletti (1989), Mirjan Dama_ka (1986), and John Merryman (Merryman and Perez-Perdomo, 2007) proposed alternative frameworks employing concepts such as legal culture, legal families, and contrasting models of governmental authority to categorize legal systems. However, when we shift the focus away from contrasting the normative theories that underlie the criminal justice systems and seek to understand how institutional actors operate within the framework of the law, the utility of these models wanes. Although the traditional dichotomy between adversarial and inquisitorial systems often reflected an analysis of criminal procedure as it existed in statutory and case law, the law’s impact is mediated by institutional interactions.
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