Comparative
Criminal Justice
Systems
SUBSTANTIVE LAW and PROCEDURAL LAW
IN THE FOUR LEGAL TRADITIONS
CHAPTER FIVE
Reichel
Questions
Historically, we know that in common law countries
judge-made law, based on custom, was the
foundation of (unwritten) criminal law.
How has the concepts of
content, context, and time
affected this premise in Scotland and the U.S.?
Have expanding populations and increased
heterogeneity had an effect? If so, how?
Substantive Law
Common Law


Socialist Law
Rely on statutes (codes),
enacted by the legislature, to
express substantive law. The
Supreme Court is the final
arbiter.

Civil Law

Every crime and every penalty
must be embodied in a statute
enacted by the legislature.
Codes reflect Imprecision over
specificity.
Islamic Law
Codes reflect three categories:
1) crimes against God (hudud);
2) crimes which require
retaliation by the victim or
victim’s family; and, 3) acts
condemned by Shari’a or
Sunna.
Question
How are public law
and private law distinguished?
Adjudicatory Process
The Adversarial system
versus
The Inquisitorial system
The fundamental aim of both is to find the truth.
Legal Traditions and the
Adjudicatory Process
Common Law
Socialist law
Adversarial
(Accusatorial)
Inquisitorial
Islamic Law
Civil Law
Mixed
Inquisitorial
The Adversarial System
The adversarial system is characterized by a set
of legal procedures used in Common Law
countries to determine the truth during
adjudication whereby the prosecution and
defense counsel compete against each other
while the judge insures fairness
and adherence to the rules.
The Inquisitorial System
The Inquisitorial system found in both Civil Law and
Socialist Law countries is characterized by
extensive pretrial investigation and interrogations
that are designed to ensure that no innocent person
is brought to trial; i.e., an official inquiry. A trial
continues the investigative process with a
procedurally active judiciary and passive lawyers.*
* Under Socialist Law, an agent of the police or prosecution takes
the investigative role.
Adversarial and Inquisitorial
Systems
Inquisitorial
Adversarial

Accusation

Judge as referee

Emphasis on trial stage and rules of
procedure to ensure a fair trial.

Judiciary restricted in investigatory and
adjudicatory process



Inquiry

Judge as inquisitor

Emphasis on screening phase and
factual guilt.

Judiciary directly involved

Defendant is expected (although not
required) to cooperate during
investigations and at trial.

Judge has the power to investigate and
to decide outcome of the case.
Defendant is neither required nor
expected to cooperate. Prosecutor is
responsible for burden of proof.
Checks and balances among courtroom
participants – shared power.
Questions
Does the adversarial system emphasize
procedure over substance?
Is there greater diversity among nations in
terms of procedural criminal law than on
issues of substantive law?
Judicial Review
The process by which governments are held
accountable to the law and the fundamental
values of a nation.
As a result of judicial review, the rule of law
can be achieved because the government,
like its citizens, is made accountable.
Models of Judicial Review
Diffuse
Judicial
Review
Concentrated
Mixed
Questions
Does either the diffuse model or the
concentrated model belong to any one legal
tradition? Explain.
Are there countries without judicial review?
If so, which legal traditions do they represent?