In Germany we allow judges to be more focused on being more inquisitorial than in Anglosaxon systems. How strong do you think the evidence for their being more biased judgements in Germany than in Anglosaxon system happens to be?
I mean, I guess (almost?) all countries today at least have the prosecutorial function vested in an organ separate from the Judiciary – that’s already a big step from the Inquisition! It’s true that no legal system is purely adversarial, not even in the US (judges can still reject guilty pleas, for instance), but I think few people would disagree that we have generally moved quite markedly in that overall direction. In particular, we used to have purely inquisitorial systems in the past, and it seems like we don’t anymore. To take Germany as an example, Wikipedia notes that, while public prosecutors are “simple ordinary servants lacking the independence of the Bench”, they nonetheless “earn as much as judges” – which seems to suggest they hold quite a prominent position in their legal system, as I suspect few other public servants do in fact earn that much.
Otherwise, what evidence do you see that the features of Anglosaxon systems get copied by other Anglosaxon systems via mechanisms of well-researched argument instead of just following traditions?
I tend to reject that dichotomy, not only in this instance but more generally: I don’t believe things survive very long on the basis of tradition alone. Tradition may be a powerful force in the short run, but over hundreds of years it tends to get displaced if it turns out to be markedly suboptimal.
I mean, I guess (almost?) all countries today at least have the prosecutorial function vested in an organ separate from the Judiciary – that’s already a big step from the Inquisition! It’s true that no legal system is purely adversarial, not even in the US (judges can still reject guilty pleas, for instance), but I think few people would disagree that we have generally moved quite markedly in that overall direction. In particular, we used to have purely inquisitorial systems in the past, and it seems like we don’t anymore. To take Germany as an example, Wikipedia notes that, while public prosecutors are “simple ordinary servants lacking the independence of the Bench”, they nonetheless “earn as much as judges” – which seems to suggest they hold quite a prominent position in their legal system, as I suspect few other public servants do in fact earn that much.
I tend to reject that dichotomy, not only in this instance but more generally: I don’t believe things survive very long on the basis of tradition alone. Tradition may be a powerful force in the short run, but over hundreds of years it tends to get displaced if it turns out to be markedly suboptimal.