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Substance and Procedure in the Criminal Law

Luís Duarte d’Almeida
p. 177-186
This is a book review of:

Boštjan M. Zupančič (author), Nandini Shah (ed.), The Owl of Minerva. Essays on Human Rights. Utrecht: Eleven International Publishing 2008

Translation(s):
Vsebina in postopek v kazenskem pravu

Abstract

This essay reviews Boštjan M. Zupančič’s The Owl of Minerva. Essays on Human Rights (Eleven Publishing, 2008). The main theses of the book are identified as: (T1) ‘Adjudication’, understood as ‘the cogent legal and public conflict resolution method’, is ‘a service rendered by the state’, and ‘the quintessence of law’; (T2) ‘In [impartial] adjudication, conflict resolution by the nature of things takes precedence over finding the truth.’; and (T3) ‘If the model of criminal procedure is to impart legitimacy, it must be a model of rational impartial adjudication.’ The essay surveys and discusses Zupančič’s arguments for these theses. Along the way, the author argues that while each thesis may be true in some carefully formulated version, none has quite the scope nor the implications suggested in the book.

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  • 1 In this review I occupy myself only with the problems raised in the two first sections of the book. (...)

1Although in no place presented in this fashion, here are what I take to be the main theses put forward in Boštjan M. Zupančič’s recent book The Owl of Minerva. Essays on Human Rights:1

2(T1) ‘Adjudication’, understood as ‘the cogent legal and public conflict resolution method’, is ‘a service rendered by the state’, and ‘the quintessence of law.’ (pp. 26-7)

3(T2) ‘In [impartial] adjudication, conflict resolution by the nature of things takes precedence over truthfinding.’ (p. 169)

4(T3) ‘If the model of criminal procedure is to impart legitimacy, it must be a model of rational impartial adjudication.’ (p. 150)

5In what follows I shall survey and briefly discuss Zupančič’s arguments for these theses. Along the way, I will argue that whilst each thesis may be true in some carefully formulated version, none has quite the scope or the implications suggested in the book.

1

6The argument for (T1) is grounded on some claims about the ‘establishment of a state’ (p. 8). The general outlook of the argument is as follows. ‘Considering the Hobbesian primordial state of anarchy, i.e. the war of everybody against everybody or bellum omnium contra omnes’, the state’s ‘very first command’ is that ‘this war of everyone against everyone must stop’ (p. 394). The ‘establishment of a state’ may be said to occur in ‘two figurative stages’: ‘In the first stage the greater power […] introduces peace’; but ‘[s]ince the essence of this peace is the categorical prohibition of the private resort to arms and combat’, the state then ‘must’, ‘in the second stage’, ‘offer an alternative mode of conflict resolution’ (p. 18). ‘[A]t the centre of this conversion from unrestrained natural aggression to “law and order” and in turn to “the rule of law”’ is adjudication (p. 25). Adjudication, ‘the cogent legal and public conflict resolution method’, is ‘a service rendered by the state’: A service that the state must ‘immediately offer’ ‘once it succeeds in putting a stop to the Hobbesian war’ (p. 27). Adjudication, then, is a ‘surrogate for physical fighting’ (p. 110), ‘the surrogate of force and violence’ (p. 23), ‘the principle alternative to the use of power and force’ (p. 281). The very concept of adjudication, indeed, ‘makes sense only as an alternative to the use of force’ (p. 281). ‘Thus’, says Zupančič, ‘adjudication is the quintessence of law’ (p. 25).

7Let us consider two distinct claims of Zupančič’s, both related to (T1), which will be identified as its sub-theses:

8(T1a) ‘The accumulation of substantive criteria’, which is the ‘predecessor of today’s substantive law’, ‘was an evolutionary spin-off of the basic social need for adjudication.’ (p. 38)

9(T1b) ‘Substantive criteria and consequently justice and morality are secondary to procedural conflict resolution.’ (p. 43)

10Like (T1), (T1a) is presented as a result of some considerations about ‘what historically and developmentally happened’ (p. 36). ‘Philogenetically’, ‘the [very] establishment of the legal system as the alternative conflict resolution service offered by the state has probably itself evolved in two stages’ (p. 36). At a first, ‘procedural stage of implementing the rule of law’ (p. 36), the point of adjudication was ‘to displace private aggression into a public forum’ (p. 39). The state, at this stage, ‘could not have offered a differentiated set of substantive criteria (“justice”) for the resolution of all conflicts’; ‘it could however offer a procedural forum’ ‘in which the parties could verbally articulate their grievances’ ‘before the decision resolving the conflict between them was made’ (p. 36). ‘These mandatory and primary procedures’ ‘created the need for substantive criteria (principles, doctrines, rules)’ (pp. 39‑40). But it was only after ‘hundreds of years’ that the casuistry ‘sufficiently accumulated to provide standard answers to standard controversies’ (p. 36). This, Zupančič maintains, is how the ‘substantive law emerged and grew’ (p. 36). ‘The point’ is that the ‘first and natural source’ of substantive law was ‘the primary establishment of the procedural framework’ (p. 37); the point, in different words, is that the ‘substantive criteria of justice’ which we today primarily ‘consider “law”’ are ‘developmentally secondary’ (p. 36): They ‘began to multiply and diversify in and through this process of continuing adjudication’ (p. 40), and came ‘to represent the judicial experience accumulated through generations of judges and jurists’ eventually restated in post-1789 codification (p. 41).

11Does (T1b) follow from (T1a)? Zupančič maintains it does (cf. p. 43). I suggest it doesn’t. (T1a) is in no way a conceptual claim: It rather purports to be a claim or a hypothesis about historical facts. The point made in (T1a) is admittedly about ‘what historically and developmentally happened’ (p. 36): It is a point about the ‘historical evolution’ (p. 38) of bodies of substantive legal standards. It says nothing about ‘justice and morality’, alluded to in (T1b); nor does it, contrarily to what Zupančič holds in the following quotation, say anything about ‘ethics, honesty’, or ‘substantive fairness’:

‘Substantive criteria of “justice” only accumulated later through this primary procedural practice. Layer after historical layer of these secondary ethical deposits created an illusion, albeit imbued with culture and civilisation, that law is not only about procedural fairness but primarily about what is in fact secondary and derivative: substantive justice, ethics, honesty, substantive fairness.’ (p. 154).

12So whether or not it is true that what we normally call the ‘substantive law’ developed historically in the way suggested in (T1a), it doesn’t follow that law today is ‘only about procedural fairness’ and not ‘about’ substantive criteria for deciding; nor that it is not ‘primarily’ about substantive criteria. The distinction between substantive criteria of justice and general substantive criteria of justice may be relevant in this regard. Adjudicative conflict resolution does not conceptually depend on the use, or the application, of previously determined general criteria for deciding. But it does depend on the use, or the application, of substantive criteria of some sort. Zupančič occasionally remarks that the very activity of judging presupposes ‘criteria and systems of reference’ (p. 43), and indeed the notion of justice (cf. pp. xiii, 25, 400). So when Zupančič (drawing a distinction between ‘judging as a logical procedure and adjudication as a social process’: p. 41) maintains that

‘Purely in terms of formal logic and legal syllogism, it does seem absurd to speak of judging (minor premise) as primary and criteria for judgment (major premise) as secondary and derivative. Yet, historically and developmentally, this is precisely what happened since adjudication […] materialised as a natural instrument of social peace and stability before there was any notion of “justice”.’ (pp. 36-7)

13or that

‘When one speaks of judging […] one immediately thinks of the logical syllogism and the substantive criteria for making a judgement. […] One then projects this logical procedure onto adjudication as a social process for the resolution of conflicts, and comes to a completely wrong impression that adjudication as a social process, too, must have begun with pre-existent substantive criteria (legal rules). In terms of historical evolution […] precisely the opposite was true’ (p. 38)

  • 2 This confusion seems partly to stem from the fact that there is throughout Zupančič’s book no consi (...)

14the point must surely not be that ‘adjudication as a social process’ is (or has ever been) possible withour any ‘substantive criteria’ or ‘any notion of “justice”’, but rather that no generally applicable substantive criteria preceded the emergence of conflict resolution by public adjudication.2 So (T1b) is false if taken, as it purports to be taken, as a general, conceptual claim about the relationship between substantive criteria and legal adjudication in a legal system. But (T1b) is also false (or, at least, not argued for in the book) if taken even only as a contingent claim about the relationship between general substantive criteria and legal adjudicative conflict resolution in any legal system. Zupančič does not ‘show that the first and foremost function of any constitutional and legal order is conflict resolution and not, as is often assumed, upholding the qualities of morality and justice’ (p. 14).

2

15This last point is related to what I identified as Zupančič’s second thesis. Consider the following quotation from The Owl of Minerva:

(T2*) ‘In adjudication, conflict resolution by the nature of things takes precedence over truthfinding.’ (p. 169)

16The formulation of (T2*) differs slightly from the formulation of (T2) given above. The reason for this will be clear in a moment; for now I shall concentrate on (T2*). Here, in broad strokes, is Zupančič’s line of argument supporting (T2*). The ‘primary purpose of adjudication is to resolve the conflict’ (p. 60), and impartial adjudication of a conflict requires that truth-finding is nothing but ‘a means’ (p. 45) to the resolution of the dispute. ‘[I]n legal procedure’, ‘it is the truth that is instrumental to the process, not vice versa’ (p. 60). Truth is ‘sought only to conciliate the parties’: ‘it will be sought only to the extent the parties themselves consider this to be in the interest of the resolution of their conflict’ (p. 60). ‘[T]he beginning and the end of the issue to be decided’, ‘the primary raison d’être of the situation’ is the conflict itself (p. 48).

17There seem to me to be two different senses in which, according to Zupančič, truth-finding is instrumental to adjudication. Firstly, truth-finding matters only insofar as the disagreement subsists: Truth ‘does not have to be discovered’ (p. 148); ‘if the parties decide to settle’ or if reconciliation happens (which may occur ‘at any time’) the truth will ‘then be irrelevant’ (pp. 148, 60). Secondly (and alongside procedural fairness and equality of arms), impartial adjudication requires passivity from whoever is in charge of adjudicating the conflict: It is a condition of impartiality that ‘the adjudicator must remain passive and cannot engage in independent truthfinding’ (p. 77). He or she is not actively to engage in the investigative pursuit of truth, because ‘active investigation requires at least a prior tentative opinion’, a ‘hypothesis’ ‘about what happened’ (p. 82), and this ‘hypothesis’, according to Zupančič, cannot but amount to a decisional bias of some sort. The case thus has to be decided only ‘on the basis of the information presented by the parties’ (p. 76). As ‘impartiality and truthfinding are contradictory goals and cannot be simultaneously achieved’, ‘if the notions of conflict resolution and impartiality are valued in a particular legal system, truthfinding as a value has to be compromised’ (p. 169). There is an ‘incompatibility between truthfinding (investigation) and impartiality (adversariness)’ (p. 65).

18Zupančič seems to think that the relative positions of truth-finding and adjudication are mirrored in the relative positions of substantive and procedural law. ‘Truth’, as employed by Zupančič, signifies ‘truth as circumscribed by’ substantive law (cf. p. 42), and the objects of ‘truthfinding’ are facts described in rules of substantive law. Truth is ‘the subject matter’ of substantive law (cf. p. 331, and pp. 83, 103ff., 115, 130, 139, 148). Impartial adjudication, however, requires that the legal process is not conceived as ‘ancillary to the implementation of substantive rules’ (pp. 46, 121): ‘within an adversary system what matters is the impartial resolution of the conflict’ (p. 331), not the ascertainment of truth.

19These claims are directly connected to (T1b), which figures as the antecedent in the following conditional sentence:

‘If substantive criteria and consequently justice and morality are secondary to procedural conflict resolution, […] truthfinding […] will also be a secondary function of law.’ (p. 43)

20This sentence seems to be intended also as a conceptual point about what the ‘primary’ function of law ‘is’. This emerges very clearly from Zupančič’s reiterated remarks about the ‘Continental legal tradition’: the Continental tradition ‘perceives the process of law as entirely ancillary to the implementation of substantive rules’ (p. 46; cf. also, e.g., pp. 41-2, 121, 130, 170). It is naturally contrasted with the ‘Anglo-Saxon tradition’, in which ‘law is nothing more than conflict resolution method and device’ (p. 41). These traditions are rooted, Zupančič remarks, in ‘two conflicting basic philosophies’ (p. 45). But the question is not about which one is preferable. For Zupančič the question seems to be about which one is true:

‘The simple question here is, which of the two philosophies is functionally correct, true to legal tradition; which of the two, in other words, adequately describes what the law actually does.’ (p. 46).

21I find this a little puzzling. How can either ‘Continental’ or ‘Anglo-Saxon’ ‘legal traditions’ fail to be ‘true to legal tradition’? If, as Zupančič maintains, the ‘fundamental difference’ between both ‘traditions’ has ‘in the last analysis’ to do with ‘the autonomous or the ancillary place of adjudication in the general legal process’ (p. 41), then the conclusion must be that there is no one ‘true’ such role necessarily played by the legal process in a legal system — no one ‘true legal tradition’. Granting that Zupančič’s characterization of the Continental tradition as a tradition in which procedural law is essentially ‘ancillary’ (or ‘adjective’) to substantive law and truth‑finding is sound, and unless he is willing (which he is not) to maintain that no such thing as adjudication of conflicts exists at all in the Continental tradition, we’ll have to conclude that (T2*) is false as a conceptual claim about legal adjudication.

22But perhaps (T2*) is true if taken as a thesis about a necessary condition for adjudicative impartiality? Some of the arguments given for (T2*), and mentioned above, do suggest this possibility; let us then slightly reformulate (T2*) to accommodate it (the only modification being the addition, between square brackets, of the adjective ‘impartial’):

(T2) ‘In [impartial] adjudication, conflict resolution by the nature of things takes precedence over truthfinding.’ (p. 169)

23This is the formulation of what in the beginning of this review I identified as Zupančič’s second thesis. Now, from the conjunction of (T1) and (T2) it follows that it cannot be simultaneously the case that a system of criminal adjudication treats truth-finding as ‘primary’, as Zupančič puts it, and that it passes the test of impartiality. Zupančič is committed to this conclusion. It roots his frequent criticism of Continental systems of criminal procedure, whose main concern is the ascertainment of the substantive truth, and whose ‘criminal procedure is instrumental to the truth’ (42; cf. also, e.g., 65, 110, 119, 121, 130, 167). But such conclusion, I shall briefly argue, is false.

3

24I do agree that in Continental criminal procedure truth-finding is the primary goal; this is in no way a contentious or extraordinary observation, whether presented as a remark about the traditional ‘pure’ model of Continental criminal procedure or as an annotation about the actual ‘mixed’ Continental legal systems (not discussed in detail in Zupančič’s book). I nevertheless believe that actual Continental systems are indeed impartial in the sense that Zupančič has in mind; or, at any rate, that no fundamental incompatibility exists between taking truth-finding as a priority and satisfying the requisites for an impartial adjudication. Impartiality, in other words, does not entail that truth-finding cannot be the main goal pursued in a system of criminal procedure. This means, I will suggest, that (T2) is false insofar as it purports to be applicable to criminal adjudication.

25Part of the problem lies precisely in the particularities of criminal adjudication when contrasted with civil adjudication. One noteworthy feature about (T2) is that it is put forward as a thesis concerning ‘a more or less ideal-type model of adversarial impartial adjudication’ (p. 159). Another noteworthy aspect is that this model of impartial adjudication is the model of private conflict and civil procedure (cf. p. 48). But public conflicts, and criminal conflicts in particular, are quite distinct from private ones, and Zupančič often emphasises this point. Is the model of impartial adjudication applicable to the adjudication of criminal as well as private conflicts? Zupančič thinks it is. Here is what I proposed to identify as his third main thesis:

(T3) ‘If the model of criminal procedure is to impart legitimacy, it must be a model of rational impartial adjudication’ (p. 150)

26How does the argument for (T3) run? A lot hinges on the term ‘legitimacy’. While the civil conflict is ‘genuine’, the criminal conflict, Zupančič claims, is ‘artificial’. Why? On the one hand, the mere incompatibility of the accused individual’s interests with the state’s intentions does not amount to a ‘conflict’ in the proper sense, for a conflict ‘presupposes approximate equality in power’ (p. 85) — and the state ‘simply cannot be “in conflict” with the powerless private individual’ (p. 57). On the other hand, the ‘intentions of substantive [criminal] law’ (p. 85) might well be pursued ‘without any adversariness whatsoever’ (p. 44), without ‘any procedural instructions and barriers’ (p. 58), and even ‘without either criminal law or procedure’ conformant to the demands of the rule of law (p. 60, 176, 245). This would indeed make for a ‘supremely efficient’ criminal system (p. 58). But while ‘such administration of criminal justice would perhaps be efficient and swift’, ‘it could not be considered impartial, because the party deciding the issue of guilt and punishment would be the same party maintaining that there is guilt and that there should be punishment’ (p. 44). The point is that procedural rules destined to ensure impartiality in the adjudication of a criminal case come into existence only ‘once the question arises as to what the State is not allowed to do in order to discover the truth’ (p. 59); ‘legal criteria or criminal law becomes important when one realises that punishment is possible without criminal law, whereas the restraints on its arbitrary use are not’ (p. 245). The requirements of impartiality, then, have to be ‘artificially induced’: the ‘state itself’ has to be ‘reduced to an equally powerless party to a conflict’. Both parties, individual and state, have to be brought as equals before a court: ‘there can be no public law [as opposed to the sheer force depicted in the ‘simple command’ model of law] without the strict separation of powers’ (p. 85).

27As I see it, there are to Zupančič three senses in which criminal conflict is ‘artificial’ (or ‘not genuine’: p. 44). The first is the one just explained: It is ‘artificially created’ (p. 160) in order to ensure that the criminal decision is bound by the requirements of impartiality. This is the point that grounds (T3): Impartiality is only a requisite for the legitimacy of criminal decisions (whereas in the private, genuine, conflict it is a conceptual condition for a decision to count as an adjudicative resolution of the issue at hand). Criminal conflict is also ‘artificial’ in the sense that, however created or ‘induced’, it will never really come to be ‘genuinely’ adversarial: ‘the very fact that there has to be a paid official [the prosecutor] who creates the conflict’ implies that the procedure is ‘not really accusatory, but to the extent of artificiality of prosecutorial initiative, is in fact inquisitorial’ (pp. 162, 310). Thirdly, criminal conflict is ‘not genuine’ in the sense that it is imitative: Criminal adversariness is ‘a superficial and artificial imitation of the genuine adversariness in the procedure concerning private disputes’ (p. 312); ‘criminal law’s origins derive by analogy from private dispute resolution’ (p. 84; cf. also, e.g., p. 44).

28But even if we accept these explanations, we still need to know what the requirements of an ‘impartial adjudication’ are in order to assess whether (T3) is true. Zupančič’s main examples are these:

‘The privilege against self-incrimination, the right to counsel, the right to be protected against warrant-less searches and seizures, the right against double jeopardy and so on, also can be seen as logical structural requirements without which a rational process of impartial adjudication is not possible’ (114).

29Take, for example, the privilege against self-incrimination, to which special attention is dedicated in Zupančič’s book. How can it be seen as a ‘logical requirement’ of impartiality in criminal adjudication? Forceful or guileful obtaining of self-incriminating evidence by state officials (and especially the police) must of course be made punishable, and Zupančič makes the interesting point that from a certain perspective self-incrimination based on guile is even worse than self-incrimination based on torture:

‘Torture subverts volition because it makes the subject consent to something, e.g. confessing, giving information, which he would without this kind of pressure not do. In terms of respect for personal dignity, however, deception is doubly subversive because it wholly eliminates cognition and consequently precludes all willed resistance to intrusion. In other words, while torture only distorts volition, guile eliminates both the surveyed victim’s cognition and volition’ (p. 154).

30But ‘substantive sanctions against the police who violate the privilege (civil action, criminal action, and disciplinary proceedings)’ seem to be ‘no remedy for the violation of the defendant’s privilege: he would still be “incriminating” himself’ (p. 125). And since ‘the use of force to influence the legal outcome of the procedure vitiates the very legality of the procedure and the substantive legitimacy of the final conviction’ (p. 123), what is needed, Zupančič maintains, is ‘a procedural sanctioning’ ‘which would reverse the disadvantage done to the defendant’s case due to the police blunder’ (p. 125). This language of comparative disadvantages is the language of equality between parties and of impartiality in criminal adjudication: It is simply ‘not logical’, from the point of view of the requisites of adjudicative impartiality, ‘to permit one party (the police) to gather evidence through forcible intrusions into the privacy sphere of the other party (the suspect, the future defendant)’ (p. 96); ‘one must have procedural barriers not only because they protect the defendant, but because they are mandated by the rational model of adjudication itself’ (p. 150; and cf. also the reference at p. 166 to the ‘theoretical ground of the logical integrity of criminal procedure’). The disadvantage caused to the defendant’s position, then, has to be eliminated ‘within the very criminal process’ (p. 118) — through the exclusionary rule. ‘Thus’, Zupančič holds, ‘there can be no privilege against self-incrimination without the exclusionary rule’; indeed ‘the privilege against self-incrimination simply is the exclusion of some [non admissible] evidence’ (p. 126). This principle that ‘in criminal procedure […] the violation of certain basic rules should affect the substantive outcome of the case’ is called by Zupančič ‘the procedural principle of legality’ (p. 124). It is, then, ‘the very concept of adjudication’ that ‘implies the prohibition of making the defendant an unwilling source of evidence against himself’; ‘procedural sanctioning through the exclusion of evidence obtained in violation of any aspect of the privilege against self-incrimination is a necessary condition of a rational impartial adjudication’ (p. 159; cf. also p. 150).

31I side with Zupančič’s claim that there is a dimension of procedural fairness and equality of arms to the exclusionary rule; I agree, in other words, that reasons for having the exclusionary rule are not restricted to its deterrent effects on official behaviour. And the exclusionary rule does imply, of course, that truth-finding be sacrificed if need be: Tainted evidence ought to be excluded even when such evidence is necessary and sufficient for proving the commission of a criminal offence, in which case the defendant should correspondingly be acquitted. But does that mean that, as (T2) suggests, truth-finding can’t still be the main goal of criminal procedure, and/or that criminal procedure and procedural law cannot be conceived as ancillary to the pursuit of such a goal? Zupančič thinks so: If impartiality requires that the ‘procedural rights […] of somebody under criminal suspicion’ ‘be sanctioned within the very criminal process’, it thus requires, he suggests, that procedural rights have an ‘independent existence’ instead of being ‘merely ancillary to the substantive, to the truthfinding goal of criminal procedure’ (p. 118). But this, I submit, is a non sequitur. Ensuring impartiality and procedural fairness is not incompatible with having truth-finding as the goal of a system of criminal procedure.

32And the main reason for this is that, as Zupančič very often underlines, in criminal procedure ‘the conflict is not the issue’ (p. 85; cf. also 160); ‘criminal procedure does not start with the conflict as the problem, but regards truthfinding as the problem to be resolved through adversariness’ (p. 45; cf. also p. 48). The ‘issue’ is instead whether a criminal offence has been committed, and, if so, whether or not the offender should be punished. In criminal law, truth ‘is not simply dispensable’ (p. 61). Of course, as we saw, the goal of ascertaining the truth about criminal ‘guilt’ (as Zupančič so often puts it) is not to be pursued at any cost. It should not be pursued in violation of human rights, and (to repeat) there is a strong case for maintaining, as Zupančič does, that it should also not be pursed at the cost of procedural unfairness. But an end or goal doesn’t cease to be an end or goal just because some means of attaining are proscribed; and a means doesn’t cease to be a means just because it is permitted. It is not the case, contrarily to Zupančič’s claim, that preservation of ‘the ideals of impartiality and procedural fairness’ ‘necessarily implies that the procedure is not a mere means to truth-finding dictated by the substantive law’ (p. 83; a different statement made at p. 51 is more apposite: ‘in criminal procedure conflict is artificially sustained in order that the truth might impartially be discovered’).

  • 3 Here are some examples of the picture Zupančič draws of Continental systems: ‘if a killer confesses (...)

33A different question, of course, is whether truth-finding ought to be the main goal of criminal procedure: Whether, for example, it is preferable that criminal prosecutors should primarily concern themselves with ascertaining the truth (in which case they should be equally, and autonomously, concerned with evidence pointing towards guilt as with evidence pointing towards innocence), or that they should instead mainly aim at securing a conviction against the contrary ‘party’. There are, I think, good reasons in favour of the first term of the alternative. But the point here is that in the first case the requirements of procedural fairness, as well as respect for human rights, and indeed the correspondent exclusionary rules, may perfectly well be solidly built into the system’s structure. That is in fact the case with Continental systems of criminal procedure, which Zupančič often misrepresents or caricatures.3 To be sure, several related problems subsist in actual Continental systems of criminal procedure. One such problem, identified by Zupančič, is that the simple prohibition that judges abstain from taking tainted evidence into account is clearly insufficient adequately to protect the defendant, and fully to enforce the privilege against self‑incrimination: From an ‘epistemological point of view’, Zupančič remarks, ‘once the judge has eaten from the poisonous tree, there is no way of deleting this from his conscience’ (p. 138). This is true, and this and other problems need solution. Overall, however, little remains in Continental systems of the ‘tidy and well arranged authoritarian post-Enlightenment traditions’ — and no profound modification of ‘goal’ or ‘purpose’ seems to be required by the process of ‘constitutionalisation’ (cf. p. 391) of Continental criminal procedure.

4

34Zupančič’s book addresses very important questions. But it is doubtful that it adds much to the current state of the discussion. There are two reasons for this doubt.

  • 4 On the content conventionally assigned to each of these theoretical models, and the respective meth (...)

35First, many of the book’s true claims will strike most readers as so trivially true as to dispense the extensive development that the author accords them. At this level, the main traits and the comparative virtues and vices of the two pure or ideal-type models of criminal procedure, to which so much concern is devoted, are well-known for very long;4 Zupančič does little more than restating them. He remarks in the Introduction that ‘the unresolved antagonism between the inquisitorial and the adversarial types of adjudication — the matter of intense debate in the 1960s and 1970s — no longer receives much theoretical attention’ (p. 7). Perhaps there is good reason for this state of affairs. Perhaps there is little point today in engaging in such a discussion, now that decades-old examples of differently structured criminal systems are available as the source of material for the fruitful construction of different theoretical models of mixed-systems whose comparison and analysis would be of more interest and pressing importance, and more serviceable. Many substantive problems emerged in these systems that have become autonomous subjects of theorization and discussion; but there is in The Owl of Minerva scant engagement with current discussions or with actual provisions of contemporary continental codes.

36This picture is by no means restricted to Zupančič’s discussions of the continental and the Anglo-Saxon models. We get the same impression from his discussions on the principle of (substantive) legality. The gist of Zupančič’s thought on this topic is that although the principle of legality ‘is not something that can be separated historically or conceptually from criminal law’ (p. 311) it amounts to nothing more than a ‘fiction [that] has to be maintained’ for the sake of the non-genuine adversarial features of criminal procedure (p. 312), and thus is itself ‘a political concession through which the state relinquishes some of its power by admitting that it is bound by law’ (p. 314; cf. also p. 334). The same ‘imbalance of power between the state and the individual’ that creates, as we saw above, ‘the need for procedural safeguards in adjudication’ lies at the origin of the need ‘to have substantive safeguards through the principles of “advance notice” of estimated punishment for a criminal act, i.e., through the principle of legality’ (p. 175).

37But actual predetermination of judicial decision by means of general substantive criteria, Zupančič remarks, is ‘illusory’ and ‘not really possible’ (p. 176): The doctrine of ‘advance notice’ wrongly ‘presupposes that single and simple legal norms, purportedly clear, will figure as straightforward major premises of legal syllogism in the forthcoming accusation and in the subsequent judgement’ (p. 247). And this presupposition, it is claimed, overlooks ‘the fact that the major premise in a legal syllogism is not made of rules’ (p. 248), but rather of ‘combinations of rules’ (p. 247). What is meant here by ‘combinations of rules’? In law, ‘the premises are not “given”, they are not fixed in advance, but have to be created by a recombination of rules’; ‘major premises exist only potentially (as potential combinations) and have to be discovered’ (p. 316). Zupančič’s recurrent illustration of this point is that of ‘a criminal code comprised, for example, of some three hundred sixty articles’, which ‘yields a number of possible normative major premises that well exceed fifty billion’ (p. 248; and cf. also pp. 217, 334-337). ‘A code […] is not merely the sum of its parts’: it is ‘a dynamic whole in which certain combinations whose existence will not be apparent to the legislator at the time of the promulgation wait to be discovered’ (p. 335).

  • 5 Any textbook will provide the necessary references. Cf, v.g., Karl Larenz’s Methodenlehre der Recht (...)

38The remarks quoted in the last paragraph all seem a bit trifling. They surely do not ‘show how illusionary is the idea of predetermination in law’, for the simple reason that no theorist would nowadays hold that a proper theoretical account of ‘the idea of predetermination’ — the idea that judicial decisions are, or can be, constrained by legislative standards and criteria — is somehow committed to taking Beccaria’s ‘perfect syllogism’ (cf. p. 338) literally. Zupančič’s painstaking efforts to denounce the ‘myth’ or the ‘illusion’ of ‘the principle of legality’ (p. 339) if conceived in terms of a strictly ‘complete separation between the competences of the legislative and the judicial branches of power’ (p. 351) are to a large extent a fight against windmills: Zupančič’s conclusions have for some decades been undisputed assumptions in theoretical jurisprudence and the theory of legal methodology.5 The conclusion is not that the idea that legislated law is somehow and to some extent capable of binding judicial decisions is an ‘illusion’. The conclusion is rather that the idea of predetermination needs to be theoretically characterized in a different, and more sophisticated, manner.

39Or take, for another (but related) example, Zupančič’s point about the need to ‘combine’ many different rules in order to obtain a complete normative formulation. Zupančič makes here a claim to originality: ‘It is surprising — to put it mildly’, he affirms, ‘that the question has never been put this way: “Is the law really in the rules (concepts)? Or is it in combinations of the rules (concepts)?”’ (p. 334). And he finds it ‘curious that legal theorists today entirely overlook this’ (p. 247); ‘the issue does not seem to be taken up even by those theorists who approach law as a normative system, [like] Alchourrón and Bulygin’ (p. 335; cf. also p. 337). It would indeed be curious if it were so; but at least since Bentham’s On Laws in General (1782), certainly throughout Kelsen’s doctrine of the Rechtsatz from 1911 on, up until Joseph Raz’s The Concept of a Legal System (1970), that very same point indeed has not only been consistently made but minutely theorized; and Alchourrón and Bulygin do take up the issue: cf. their Normative Systems (Springer, 1971) p. 59. Along the same lines, Zupančič’s assertions that ‘most criminal theorists either maintain or imply that the definitions of particular crimes, such as murder and robbery, represent the automatic major premises from which the prosecutor has only to choose before he presses his accusation’, or that ‘generally the Anglo-American jurisprudence’ ‘fails to take into account that legal “major premises” are not directly the legal concepts themselves, but are composed of combinations of those legal concepts’ (p. 317), made without illustrative support of any one example from the literature, strike me as simply untrue.

  • 6 Not only should readers have been informed of the fact that the book’s contents draw on previously (...)
  • 7 The book could also have benefited from more careful editorial work. For one example, the two refer (...)

40The second reason why The Owl of Minerva is wanting in theoretical novelty is that it also adds little to Zupančič’s own previous contributions on these topics. The book incorporates most of Zupančič’s production from the last three decades — and not much more. Nowhere are readers informed of this, as they should have been.6 And while the volume was clearly not intended as a mere collection of past essays, but rather as a coherent book, the unifying efforts made to that effect seem insufficient. Many of Zupančič’s past essays often include restatements of theses, ideas, and illustrative references already made by him in some earlier essay (which is natural in articles destined for publication in different places and times, especially if one’s subject of discussion is not exhaustible in just a few essays). But in the process of uniting these essays in a single volume these repetitions should have been eliminated.7 They weren’t. The overall result is a volume far bigger than its substance would require, in which readers will find the same points, arguments, examples, and references — interesting and thought‑provoking as they often are first encounter — presented to them again and again.

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Notes

1 In this review I occupy myself only with the problems raised in the two first sections of the book. I say nothing on the third (and last) section, which is dedicated to the topic of ‘Human Rights in the Context of International Law’ and amounts to c. 80 pages (in a total of 448). In the following formulations I employ direct quotations; here as elsewhere, references to page numbers given in parentheses refer to the book under review unless otherwise stated.

2 This confusion seems partly to stem from the fact that there is throughout Zupančič’s book no consistent use of ‘justice’. Sometimes ‘substantive justice’ means indeed general substantive law: cf. pp. 8 (‘substantive law’), 36 (‘differentiated set of substantive criteria (“justice”) for the resolution of all conflicts’), 38 (‘pre‑existent substantive criteria (legal rules)’), 40 (‘substantive standards’); sometimes it refers to any non‑violent criteria for adjudicative decisions (cf. pp. 25, 33); sometimes to the system of adjudication itself (cf. pp. 89, 94); sometimes to a ‘general’ or ‘abstract’ ‘idea’ which today ‘we may even imbue with a certain transcendental connotation’ (pp. 38, 40) or to a ‘charitable concern’ (p. 37); sometimes to ‘logical consistency (justice)’ (p. 400); ‘justice, right and wrong’ are also at p. 176 deemed to be ‘lies’ given the ‘appearance of legitimacy’ by the rule of law.

3 Here are some examples of the picture Zupančič draws of Continental systems: ‘if a killer confesses after torture, he is no less a killer just because he has been tortured. This in substance is the view of most Continental criminal procedures’ (p. 117); ‘in the Continental system… the exclusionary rule cannot be applied’ (p. 121); ‘the law of evidence, a fact rarely noticed… does not exist in Continental legal systems. Here, there are no rules of hearsay, no doctrine of evidentiary presumptions, no rules on admissibility of evidence’ (pp. 127-8); the part-inquisitorial part-adversarial European criminal procedure is unsuitable for consistent protection of the privilege [against self-incrimination] as a human right’ (p. 139); ‘the exclusionary [rule] was… tacitly rejected by the immune [Continental] systems’ (p. 137); ‘in a Continental criminal court… the judicial solution of a particular combination of issues is… never printed or otherwise made available to the broader professional public for future use and (with the exception of the minimal publication of the supreme court decisions because of the idea that they ought to help make the practice more consistent and uniform) there is no cumulation of knowledge. Every judge, when he encounters a novel combination of issues will have to solve it by himself and only for himself, without having any organized access to possible previous solution of the same problem: the cases are not recorded’ (p. 339).

4 On the content conventionally assigned to each of these theoretical models, and the respective methodological implications, cf. v.g. Luigi Ferrajoli, Diritto e Ragione. Teoria del Garantismo Penale, 9th ed (Laterza, 2008) § 39.

5 Any textbook will provide the necessary references. Cf, v.g., Karl Larenz’s Methodenlehre der Rechtswissenschaft, 6th ed. (Springer, 1991) pp. 119ff., and esp. 155ff.

6 Not only should readers have been informed of the fact that the book’s contents draw on previously published work, they should have been told precisely what, if anything, is now presented as new material. It is not even the case that the essays incorporated in the book are all mentioned in the final ‘Bibliography’ (pp. 429 ff.). At least two prior essays by Zupančič whose substance was incorporated in The Owl of Minerva — sometimes verbatim — are not mentioned: ‘Criminal Responsibility under Mistake of Law: The Real Reasons’, American Journal of Criminal Law 13 (1985) 37-66; and ‘The Privilege Against Self-Incrimination as a Human Right’, European Journal of Law Reform VI 1-2 (2004) 15-56.

7 The book could also have benefited from more careful editorial work. For one example, the two references (quoted above) to Alchourrón and Bulygin’s Normative Systems at pp. 335 and 337 are not acknowledged in the respective entry in the ‘Index of Authors Cited’. For another example: the term ‘state’ is sometimes capitalized, and sometimes not.

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References

Bibliographical reference

Luís Duarte d’Almeida, « Substance and Procedure in the Criminal Law », Revus, 9 | 2009, 177-186.

Electronic reference

Luís Duarte d’Almeida, « Substance and Procedure in the Criminal Law », Revus [Online], 9 | 2009, Online since 22 December 2012, connection on 23 March 2017. URL : http://revus.revues.org/572

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