The Quest for Due Process in the Age of Inquisition
Bibliographic Data
| ID | 9531170 |
|---|---|
| Authors | Mirjan Damašska (Yale University, corresponding author) |
| Year | 2012 |
| Volume | 60 |
| Issue | 4 |
| Pages | 919-954 |
| Publication date | 2012-09-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | The American Journal of Comparative Law (JOURNAL) |
| Journal identifiers | ISSN: 0002-919X • E-ISSN: 2326-9197 |
| Publisher | Oxford University Press (OUP) (PUBLISHER) |
| DOI | 10.5131/ajcl.2012.0007 |
| OpenAlex | W2128653777 |
| Language | EN |
| Citations received | 2 |
| References cited | 5 |
Although the criminal process of the continental ancien régime remains in deserved disrepute because of its repellent features such as the use of torture, it was not devoid of rules we would nowadays classify as defensive safeguards. The importance of these rules is often denied, however, on the grounds that they were crude and undemanding, or else disregarded in practice. The Article attempts to show this to be an exaggeration, especially if the denial is meant to apply to all continental jurisdictions from the twelfth to the end of the eighteenth centuries. In fact, some of these provisions were quite exigent and sophisticated, especially those regarding the disclosure of incriminating evidence to the defendant. The breach of these and many other provisions was threatened with the rejection of evidence obtained by the breach. In their totality, this "defensive regulation" clearly reveals the sense that public authority may not impose criminal punishment without giving defendants a chance to defend themselves. In some respects, the regulation also discloses an unexpected sensitivity to humanistic concerns, even human dignity. Exalted at the time as emanating from sources superior to all terrestrial powers, some rules belonging to the regulation were said to be binding even on emperors and popes. From our present standpoint, the cardinal sin of these early precursors of our procedural safeguards was not that they were unsophisticated or irrelevant in practice, but that they were reserved for defendants belonging to the upper classes of society, protecting only them from the repressive measures and the brutality of procedural authorities. How these rules were invoked in the courts of some continental jurisdictions is illustrated by the author on a sixteenth century Italian murder case, in which the famous Italian criminal lawyer, Prospero Farinacci, delivered an expert opinion for the defense
Criminology · Denial · Dignity · Human rights · Law and economics · Political science · Punishment (psychology) · Punitive damages · Restitution · Sociology · Torture · American Constitutional Law and Politics · Law · Medieval and Early Modern Justice · Psychology · Social Psychology
| Citations per year | 0.18 |
|---|---|
| Citation span | 2015 - 2021 (7) |
| Highly cited | No |