Dances of Justice: Tango and Rumba in Comparative Criminal Procedure

More than thirty years ago, Professor Damaška offered his seminal contribution to comparative criminal procedure by demonstrating that serious comparative understanding, for the purpose of fruitful communication among legal traditions and of a better grasp of domestic procedural systems, requires a simple analytical tool. Damaška moved beyond the old taxonomy based on the over-used dichotomy of accusatorial v inquisitorial procedures, which carries with it a multiplicity of referents, and as a result proving itself incapable of a clear contraposition between the two types of procedure. Damaška articulated the core contrast between contemporary common law and continental criminal procedures as involving alternative patterns of distributing procedural control. His observation of the systems in action located the essence of the common law style, ie of the adversary model, in the allocation of control over the proceeding to the conflicting parties of the dispute. He thus pointed to a sharp contrast with the fundamental matrix of the continental style, ie of the non-adversary model, where that same control is allocated to non-partisan officials. Where parties monopolise procedural action, the process takes the form of a contest between the prosecution and the defence; on the contrary, where the judge or some other official is in charge, the process turns into an enquiry into the alleged commission of a crime.