"Anglo-American and Continental Systems: Marsupials and Mammals of the Law"

Michigan Law Authors
Areas of Interest
Publish Date
2008
Publication
Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska
Publication Type
Book Chapter
Abstract

When Peter Tillers invited me to participate in this festschrift for Mirjan Damaška, I proposed to write a short concluding essay reviewing the articles in this volume and drawing links between them. Perhaps I should have anticipated that this would be no easy task, and maybe even have foreseen that it was an assignment I would eventually shun. I should have known that there would not be the six to eight articles I anticipated but the 17 that have been submitted. Had I thought more, I would have realised that there would be many people, myself included, who would seek both to honour Professor Damaška and the opportunity to bask in his reflected glory. I certainly should have realised that there would be no easy way to summarise everything submitted, for Professor Damaška’s academic corpus is too diverse and scholars’ views of even the same works are too different to allow for any easy synthesis of contributions commenting on or inspired by Damaška’s scholarship. Some see Professor Damaška as a leading comparativist, some admire him for his work on criminal procedure and some, myself included, view Professor Damaška as an outstanding evidence scholar, who has managed the all too rare accomplishment of bringing truly new ideas to the study of evidence and procedure. Fortunately what daunted me did not daunt John Jackson and Maximo Langer, for they have, in their introduction, done a superb job of pulling together the separate themes of this volume’s contributions, although I will point out that not even they could unify the articles herein under a single theme.

So if I am not to attempt a synthesis, what can I contribute? First, I simply want to add to the chorus of admiration for Professor Damaška. My admiration for him goes back to the first work of his I read, his path-breaking book The Faces of Justice and State Authority. I had read nothing like it before, nor, I might add, have I seen its equal since. It is one of those rare works that allows one to see what are familiar issues, in this case differences between Anglo-American and Continental legal systems, in a new light. Once viewed in this light, matters are never the same. In particular, by breaking down what had become fixed and sterile portraits of adversarial and inquisitorial systems, Professor Damaška helped his readers perceive and make sense of variations within and common features across Anglo-American and Continental justice systems. He did so by highlighting features that were either imperceptible or puzzling when viewed from within the confines of the received adversarial-inquisitorial dichotomy.

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