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Visions of Justice
Liber Amicorum Mirjan Damaška
Editors: Ackerman, Bruce | Ambos, Kai | Sikirić, Hrvoje
(2016)
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This book is a collection of essays presented at the international conference »The Administration of Justice - Past Experience and Challenges for the Future«, held in May 2015 in Cavtat, Croatia in honour of Mirjan Damaška, Sterling Professor of Law at Yale Law School. The conference was co-organized by the University of Zagreb Faculty of Law, Professor Damaška's first academic home, and the Marija and Mirjan Damaška Foundation, established by him and his wife as expression of their affection towards their Alma Mater and Croatia. Twenty-six contributors - leading scholars in common law, civil law and the Far Eastern traditions - re-examine from different angles in an original, profound and insightful way all three key areas of his seminal and path-breaking monumental scholarship. The papers cover comparative and foreign procedure, the law of evidence and international criminal law, revealing the depth, richness and far-reaching nature of Damaška's opus. The conclusion is unanimous. In spite of decades that have passed the ideas and insights expressed in Damaška's scholarship did not lose their freshness and originality, moreover their influence continues today. Visions of Justice is an excellent piece of scholarship in its own right which will be of interest to criminal and evidence lawyers, as well as those with more general comparative interests.This book is a collection of essays presented at the international conference The Administration of Justice - Past Experience and Challenges for the Future, held in May 2015 in Cavtat, Croatia in honour of Mirjan Damaška, Sterling Professor of Law at Yale Law School. The conference was co-organized by the University of Zagreb Faculty of Law, Professor Damaška's first academic home and the Marija and Mirjan Damaška Foundation, established by him and his wife as expression of their affection towards their Alma Mater and Croatia. Twenty-six contributors - leading scholars in common law, civil law and the Far Eastern traditions - re-examine from different angles in an original, profound and insightful way all three key areas of his seminal and path-breaking monumental scholarship. The papers cover comparative and foreign procedure, the law of evidence and international criminal law, revealing the depth, richness and far-reaching nature of Damaška's $aopus$z. The conclusion is unanimous. In spite of decades that have passed the ideas and insights expressed in Damaška's scholarship did not lose their freshness and originality, moreover their influence continues today. Visions of Justice is an excellent piece of scholarship in its own right which will be of interest to criminal and evidence lawyers, as well as those with more general comparative interests.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Inhaltsverzeichnis | 5 | ||
| Hrvoje Sikirić: Introduction | 7 | ||
| Bruce Ackerman: My Debt to Mirjan Damaska | 17 | ||
| Kai Ambos: The International Criminal Justice System and Prosecutorial Selection Policy | 23 | ||
| I. Preliminary Remarks | 23 | ||
| II. The International Criminal Justice System | 25 | ||
| 1. The Inter-/supranational Level | 25 | ||
| 2. The National Level | 26 | ||
| 3. The German Example | 29 | ||
| III. Prosecutorial Strategy, Policy and Selection | 33 | ||
| 1. Ideal and Real Criminal Justice Systems | 33 | ||
| 2. Situations and Cases | 36 | ||
| 3. Grand Strategy and small Policy: Any Use for Selection and Prioritization? | 40 | ||
| 4. Gravity and Selection | 47 | ||
| Ennio Amodio: Rethinking Evidence under Damaška’s Teaching | 51 | ||
| I. | 51 | ||
| II. | 53 | ||
| III. | 54 | ||
| Teresa Armenta-Deu: Beyond Accusatorial or Inquisitorial Systems: A Matter of Deliberation and Balance | 57 | ||
| I. The Main Criminal Procedural Law Systems (A Brief Reference) | 57 | ||
| II. The Initial Dichotomy ‒ Inquisitorial – Accusatorial: The Essence of Both Configurations and a Brief Historical View | 58 | ||
| III. Development Towards the Inquisitorial System and the Appearance of Mixed Systems | 60 | ||
| IV. Defining and Critical Elements of the Adversarial System | 62 | ||
| V. One Final “Twist of the Screw”: Critical Details about so-called Inquisitorial Systems | 66 | ||
| VI. Convergence of the Two Systems, Essential Aspects beyond Labels ‒ There is no Pure System and Convergence is Inevitable | 69 | ||
| VII. Conclusion: The Balancing Game and the Need for Deliberation | 71 | ||
| Károly Bárd: Can the Jury Survive after the Judgment of the European Court of Human Rights in Taxquet v. Belgium? | 77 | ||
| Steven G. Calabresi: The Comparative Constitutional Law Scholarship of Professor Mirjan Damaska: A Tribute | 95 | ||
| I. Mirjan R. Damaska, Reflections on American Constitutionalism, 38 The American Journal of Comparative Law 421 (1990) | 95 | ||
| 1. The Authority Structure of the U.S. Constitution | 96 | ||
| 2. The Common Law Legacy | 101 | ||
| 3. The Rise of Activist Government | 104 | ||
| II. Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986) | 107 | ||
| III. Conclusion | 110 | ||
| Oscar G. Chase: “Supreme” Courts and the Imagination of the Real: An Essay in Honor of Mirjan Damaška | 111 | ||
| Preface | 111 | ||
| I. Introduction | 112 | ||
| II. Supreme Courts in Interpretive Context | 113 | ||
| III. Supreme Courts and the Construction of Space and Time | 124 | ||
| 1. Time | 124 | ||
| 2. Space | 129 | ||
| IV. The Representation to Self and Others of “Justness” | 135 | ||
| V. Conclusion | 144 | ||
| Davor Derenčinović / Steven W. Becker: The Serbian War Crimes Act and Quasi-universal Jurisdiction – Reflections on an Unprecedented Jurisdictional Experiment | 145 | ||
| I. General Overview of the Contents of the Law (Act) Relevant to the Current Analysis | 145 | ||
| II. Legal Analysis of Articles 2 and 3 of the WCA | 147 | ||
| 1. Elements of the Territorial Principle | 147 | ||
| 2. Elements of the Theory of Universality | 148 | ||
| 3. Elements of the Reality (Protective) Principle | 152 | ||
| III. Discussion | 154 | ||
| 1. Promulgation of Article 3 (in Conjunction with Article 2) of the WCA Unnecessary to Prosecute War Crimes | 154 | ||
| 2. Controversial Provisions of the WCA were Enacted for Political Reasons | 156 | ||
| 3. Reaction to Arrests Resulting from Application of Articles 2 and 3 of the WCA | 158 | ||
| IV. Conclusion | 160 | ||
| Zlata Đurđević: Legal and Political Limitations of the ICC Enforcement System: Blurring the Distinctive Features of the Criminal Court | 163 | ||
| I. Introduction | 163 | ||
| II. International Cooperation as the Court's Enforcement Mechanism | 165 | ||
| 1. The Vital Importance of International Cooperation with the ICC | 165 | ||
| 2. States' Cooperation with the ICC: Criminal Procedural Law Perspective | 166 | ||
| a) External Criminal Procedural Powers of National and International Courts | 166 | ||
| b) Enforceability of Criminal Court and Prosecutor Decisions in National and International Environments | 169 | ||
| c) Horizontal and Vertical International Cooperation in Criminal Matters | 170 | ||
| aa) Horizontal Intergovernmental Cooperation | 170 | ||
| bb) Horizontal Judicial Cooperation | 171 | ||
| cc) Vertical Mandatory Cooperation | 172 | ||
| d) Vertical Cooperation with the ICC: Regression in International Law Enforcement | 173 | ||
| aa) The many National Legal Exceptions to Mandatory Cooperation | 174 | ||
| bb) The ICC's Power to Settle Disputes: Enforcement through Consultation | 175 | ||
| cc) The ICC's Obligation to Afford Assistance to National Primary Jurisdiction | 177 | ||
| dd) Procedural perspective | 177 | ||
| ee) Non-compliance with the ICC's Requests | 178 | ||
| (1) The Powers of the Assembly of States Parties | 178 | ||
| (2) The UN Security Council's Powers | 180 | ||
| 3. Other ICC enforcement actors | 181 | ||
| a) Non-party states | 181 | ||
| b) Intergovernmental Organizations | 182 | ||
| c) Non-governmental Organizations | 184 | ||
| III. Uncooperative Relationship between the African Union and the ICC | 185 | ||
| 1. African States and the ICC: Africa the most Cooperative Continent | 185 | ||
| 2. The African Union: Implementing the Policy of Non-cooperation with the ICC | 186 | ||
| 3. The African Union: Delegitimizing the ICC by International Double Standards, Political Power Inequality and International Law on Immunity | 189 | ||
| a) Double Standards of the Security Council's Referrals | 189 | ||
| b) Double Standards of the ICC Prosecution | 191 | ||
| c) Peace v. Justice Conflict | 192 | ||
| d) Neocolonialism or reach for justice for African victims | 192 | ||
| e) Diplomatic Immunity: International Law Limit to Cooperation with the ICC | 193 | ||
| IV. Conclusion: The ICC's Supranational Judicial Enforcement Regime | 195 | ||
| Izhak Englard: The Faces of Justice and State Authority: A Review of the Reviews | 199 | ||
| Albin Eser: Changing Structures: From the ICTY to the ICC | 213 | ||
| I. Introduction | 213 | ||
| II. Origins and Amendments at the ICTY | 216 | ||
| 1. Basic Neutrality of the ICTY Statute | 216 | ||
| 2. Adversarial Complements and Inquisitorial Supplements in the ICTY Rules of Procedure and Evidence (RPE) | 218 | ||
| 3. Ascertaining the Truth | 222 | ||
| 4. Guaranteeing Fairness | 222 | ||
| 5. Pursuing Expediency | 224 | ||
| 6. Preliminary Result | 224 | ||
| III. Developments at the ICC | 225 | ||
| 1. Further Shifts to a Mixed Structure in the ICC Statute | 226 | ||
| 2. Implementing Provisions in the ICC RPE | 227 | ||
| 3. Ascertaining the Truth | 229 | ||
| 4. Guaranteeing Fairness | 230 | ||
| 5. Pursuing Expediency | 231 | ||
| IV. Conclusions | 232 | ||
| John D. Jackson: Re-visiting Evidentiary Barriers to Conviction and Models of Criminal Procedure after Forty Years | 235 | ||
| I. Introduction | 235 | ||
| II. Evidentiary Styles and Evidentiary Barriers | 236 | ||
| III. The Dichotomy between Adversary and Non-Adversary Proceedings | 239 | ||
| IV. Evidentiary Barriers Revisited in a Changing Europe | 245 | ||
| V. Re-Modelling Criminal Procedure | 252 | ||
| VI. Conclusion | 256 | ||
| References | 256 | ||
| Heike Jung: Rituals and Procedure | 259 | ||
| I. Introduction | 259 | ||
| II. Definitional Issues | 261 | ||
| III. Rituals and Institutions | 262 | ||
| IV. Rituals and Authority | 263 | ||
| V. Rituals and the Fundamentals of Procedure | 265 | ||
| VI. My Account of Rituals | 268 | ||
| 1. The General Background | 268 | ||
| 2. Court Rituals Revisited | 268 | ||
| 3. A Plea for Adaptation | 269 | ||
| VII. Rituals forever? | 271 | ||
| Máximo Langer: In the Beginning was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems and Common and Civil Law in Comparative Criminal Procedure | 273 | ||
| I. Introduction: The Need for an Intellectual History of Comparative Criminal Procedure | 273 | ||
| II. The Adversarial and Inquisitorial Systems as Central Categories of Comparative Criminal Procedure | 277 | ||
| III. A Normatively-driven Comparative Law of Differences: Politics, English National Identity and the Self-interest of the English Legal Profession | 280 | ||
| IV. Trial by Witnesses versus Trial by Jury | 284 | ||
| V. The Higher Accuracy of the English Trial by Jury and the Problem of Torture | 286 | ||
| VI. Fortescue on Criminal Procedure, Law and Society, and Transplanting Legal Institutions | 289 | ||
| VII. Fortescue on Types of Political Authority and the Legal Process | 292 | ||
| VIII. Making Use of Fortescue: Some Preliminary Leads | 296 | ||
| IX. Conclusion | 299 | ||
| Mitchel de S.-O.-l'E. Lasser: On the Comparative Autonomy of Forms and Ideas | 301 | ||
| I. The Centrality of Mirjan Damaska in the Life of a Particular Comparatist | 301 | ||
| II. The Faces of Justice and State Authority and the Discipline of Comparative Law | 303 | ||
| III. The Faces of Justice and Deciphering European Judicial Appointments Reform | 312 | ||
| IV. Conclusion | 323 | ||
| James G. Stewart: The Strangely Familiar History of the Unitary Theory of Perpetration | 325 | ||
| I. Introduction | 325 | ||
| II. Intellectual Dissatisfaction in Norway | 329 | ||
| III. Undue Practical Difficulties in Denmark | 334 | ||
| IV. A Multiplicity of Competing Solutions in Italy | 339 | ||
| V. Autonomous Choice in Brazil | 342 | ||
| VI. Avoiding the Recharacterization Problem in Austria | 346 | ||
| VII. Conclusion | 350 | ||
| Katja Sugman Stubbs: An Increasingly Blurred Division between Criminal and Administrative Law | 351 | ||
| I. Introduction | 351 | ||
| II. Differences between Criminal and Administrative Law | 352 | ||
| 1. An Ideal | 354 | ||
| 2. Hazy Areas | 356 | ||
| 3. CoE and EU | 364 | ||
| III. Conclusion | 366 | ||
| Bibliography | 368 | ||
| Michele Taruffo: Globalizing Procedural Justice ‒ Some General Remarks | 371 | ||
| I. Introduction | 371 | ||
| II. Globalization of what? | 371 | ||
| III. Globalization for whom? | 373 | ||
| IV. Devices of Globalization | 374 | ||
| 1. About Mediation | 375 | ||
| 2. About Arbitration | 376 | ||
| V. Which Globalization of Procedural Justice? | 377 | ||
| 1. Unification of Procedural Systems | 377 | ||
| 2. Regional Models | 378 | ||
| 3. Harmonization | 379 | ||
| Stephen C. Thaman: Reanchoring Evidence Law to Formal Rules: A Step toward Protecting the Innocent from Conviction for Capital Crimes? | 383 | ||
| I. The Problem: How can Evidence Law be Anchored so as to Prevent Horrific Miscarriages of Justice? | 383 | ||
| II. The Drift of Evidence Law between Objective and Subjective Criteria | 387 | ||
| III. The Inadequacy of Judgment-reasons in Preventing the Conviction of the Innocent | 389 | ||
| 1. The Subjective Character of Judgment Reasons | 389 | ||
| 2. The Presumption of Innocence | 390 | ||
| 3. The Problem of the Trial Judge with a Prosecutorial Bias | 391 | ||
| IV. The Efficacy of the Appellate Courts in Protecting the Presumption of Innocence and Discovering Potential Wrongful Convictions ‒ Technical Aspects of Review of First Instance Factual Findings | 394 | ||
| V. Anchoring Evidence Law to Strict Intrinsic Exclusionary Rules and Objective Requirements of Corroboration | 398 | ||
| 1. Formal Rules for Inherently Suspect Categories of Evidence | 398 | ||
| a) Introduction | 398 | ||
| b) Eyewitness Identification Testimony | 399 | ||
| c) Testimony by Informants and Co-Defendants | 400 | ||
| d) Confessions Induced by the Police and Retracted Before Trial | 401 | ||
| 2. Formal Rules for Untrustworthy Evidentiary Constellations | 403 | ||
| a) Witness against Witness Cases | 403 | ||
| b) Circumstantial Evidence Cases | 404 | ||
| VI. Conclusion: Return to Formal Rules of Evidence in a Two-level System? | 407 | ||
| Ksenija Turković / Kreimir Kamber: One Face of Human Rights for Two Faces of Criminal Justice: A European Perspective | 411 | ||
| I. Introduction | 411 | ||
| II. The ECtHR in Search of Compromise between Human Rights and Public Interest in the Administration of Criminal Justice | 415 | ||
| III. The ECHR Guarantees of a Fair Trial in the Conflict-solving and Policy-implementing Environments | 426 | ||
| IV. Conclusion | 436 | ||
| Zuo Weimin / Fu Xin: Legal Transplant in the Criminal Procedure Law of China: Experiences and Reflections | 437 | ||
| I. Damaka’s Proposition on Legal Transplant in the Criminal Procedure Law: Subject to Further Test | 438 | ||
| II. Legal Transplant in China's Criminal Procedure: A Preliminary Observation | 440 | ||
| 1. Tendency of “Filling in the Gap ‒ Rupturing ‒ Refilling in the Gap” between the System Transplanted and the Institutional Background in China | 444 | ||
| 2. Change from the “Overall Copying ‒ Fragmented Transplant” as far as the Content is Concerned | 445 | ||
| 3. Coexistence of the Transformed and Copied Transplant Models in China | 445 | ||
| 4. A Relatively long Cycle of Acceptance of Legal Transplant in the Local Context | 446 | ||
| III. Analysis of and Comments on the Chinese-style Legal Transplant | 447 | ||
| IV. Conclusion | 454 | ||
| Harmen van der Wilt: The Continuing Story of the International Criminal Court and Personal Immunities | 457 | ||
| I. Introduction | 457 | ||
| II. Immunities: State of the Art in International Law | 459 | ||
| III. On the Incompatibility of Immunities and International Criminal Justice | 462 | ||
| IV. The ICC, States Parties and States Not Parties to the Statute: A Complex Triangle | 465 | ||
| V. Some Final Reflections | 468 |