Substantive Law and
Procedural Law in the Four
Legal Traditions
Richard H. Ward
Dean & Director
College of Criminal
Justice
Sam Houston State
University
Table 5.1
The Adjudicatory Process
Adversarial Systems
Inquisitorial System
Who plays the role
of the accuser?
Role of accuser moves from
the individual to the state in an
evolutionary continuation of
private vengeance
The state as accuser replaces
the individual in a
developmental substitution for
private vengeance
How is truth
determined?
Truth is said to arise from
competition between opposing
sides, so the emphasis is on
the trial phase
Truth is said to arise from a
continuing investigation, so the
emphasis is on the screening
process
Where does power
lie?
Power is shared by the
prosecutor, defense, judge,
and jury, so the judge exerts
influence indirectly in the role
of referee
Power is concentrated more in
the judge, so the judge exerts
influence directly in the role of
investigator
What level of
cooperation is
expected of the
defendant?
Defendant is neither expected
nor required to cooperate with
the investigation or court
officials
Defendant is expected, but not
required, to cooperate with
investigation (including court)
officials
Contrasting Adversarial and Inquisitorial
Processes
The inquisitorial systems emphasize the
screening phase of the criminal process with
the idea that a careful investigation will
determine factual guilt. The adversarial
system emphasize the trial phase, where the
idea that complex rules of evidence to
produce substantive results will ensure the
defendant a fair trial
Contrasting Adversarial and Inquisitorial
Processes
The adversarial systems are much more
likely to restrict the involvement of the
judiciary in both the investigatory and
adjudicatory process. The direct
involvement of the judge in inquisitorial
system contrasts with his or her more
indirect involvement in adversarial systems
Contrasting Adversarial and Inquisitorial
Processes
Because the inquisitorial system assumes that all
involved persons are seeking the truth, the
defendant is expected (though not required) to be
cooperative. That cooperation includes supplying
information to investigators and answering
questions at trial. The adversarial systems, on
the other hand, neither expect nor require the
defendant to assist investigators. The burden of
proof is on the prosecutor, who assumes that the
defendant will maintain silence.
Contrasting Adversarial and Inquisitorial
Processes
The role of the judge in adversarial proceedings is
primarily one of referee. The attorneys develop
and present their respective cases, and then a jury
decides between the two versions of the fact. The
court in an inquisitorial system is another
investigator with the added power of being able to
decide the case. The judges ask most of the
questions and develop the facts, while the
attorneys exist more to argue the interpretation that
the court should give those facts (see Ingraham,
1987, p. 121).
Fig. 5.1 Flowchart for Achieving Rechtsstaat
Substantive and administrative
procedures are established to
hold the nation’s government to
the fundamental principles
Those values are
reduced to written
form
The supremacy of
certain fundamental
values is recognized
Figure 5.2 Models for Accomplishing Judicial Review in Common
and Civil Traditions
Diffuse
Concentrated
A country’s entire judiciary has
the duty of constitutional
control with the potential
inconsistency of decisions
being lessened through stare
decisis or a structural
equivalent.
A specific government
entity rules on the
constitutionality of
laws, and problems of
inconsistent decision
are accordingly
minimal.
Mixed
A specific government
entity reviews the
constitutionality of laws,
and all courts in the
country have the power to
ignore laws they deem
unconstitutional
Supremacy Clause
US Constitution - Article 6, section 2
This Constitution, and the Laws of the United
States which shall be made in pursuance
thereof; and all Treaties made, or which shall be
made, under the Authority of the United States,
shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding