Comments on Professor Damaška: Residual Truth of a Misleading Distinction
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I am honoured to comment on the very helpful paper with which Professor Damaška opened the 2009 International Association of Procedural Law (“IAPL”) conference (the “Conference”). In it, he succinctly set the stage for the discussion that was to follow over the next two days. Professor Damaška gives us the historical background of the categories that we have re-examined, lays out the more recent developments in many parts of the world that have inspired our enterprise, and offered some reasons why those categories are—and are not—still useful and, to some degree, accurate descriptions of the legal world that we inhabit today. While he comes down on the side of the continuing utility of the hoary divisions, he also questions just how useful they remain. Thus, he sets the stage, but does not compel the dénouement. In short, he leaves us with plenty to do! In my few pages here, I will touch on the main points of Professor Damaška's paper and try to raise some additional questions. I will spend some moments on the issue of categorization per se, asking what functions categories serve in general and what dangers they present. It is important to situate the present paper in the context of Professor Damaška's prior work. I would claim that, in no small part, it is he who is responsible for bringing us to our current confused, but interesting moment. It was, after all, his book, The Faces of Justice and State Authority that, over two decades ago, questioned the received procedural categories, and proposed a new paradigm for understanding and differentiating among procedural systems. You will recall that in Faces of Justice, Professor Damaška firmly rejected the once dominant “Adversarial versus Inquisitorial” dichotomy because of its misleading normative implications and the imprecision of its boundaries. This is not to say that he abandoned tradition altogether. Often, he referred in “Faces of Justice” to “continental” or “civil law” countries, and contrasted them to the “Anglo-American” or “common law” world. He did so, however, in the service of an entirely new construct, and described two new categories of what he called “the character of procedural authority”. On one level (which I find most relevant to his Conference paper), he differentiated between systems according to their “structures of authority”. In this way, he found that some procedures revealed a preference for a hierarchical, bureaucratic structure by, inter alia, a professional judiciary, official control of the fact-finding process and robust supervision of lower courts. In contrast, other systems favoured coordinate decision-making, and this was exemplified especially by the jury, by private responsibility for fact investigation, and by the use of judges who had no special training for the job other than the practice of law. This new approach to mapping procedural systems was not an example of categorization for its own sake: the great contribution of Faces of Justice was that it linked the character of procedural systems to the general attitudes toward state authority of the societies in which they were found. Most relevant to this Conference, he showed that there were patterns of procedural character that differed from those that were traditionally dominant, and that these new categories helped to better understand procedural systems. Further, while he found parallels between the hierarchical and coordinate systems and the traditional common law / civil law divide, he also showed that the two systems of category did not map squarely onto each other. This frees us, and even encourages us, to step “outside the box” of our comparatist forbears with a more nuanced and sophisticated appreciation of difference. This is precisely what we did at the Conference for much of the time in the days that followed, and our work is reflected in the papers that have been reproduced here.
Source Publication
Common Law, Civil Law and the Future of Categories
Source Editors/Authors
Janet Walker and Oscar G. Chase
Publication Date
2010
Recommended Citation
Chase, Oscar G., "Comments on Professor Damaška: Residual Truth of a Misleading Distinction" (2010). Faculty Chapters. 1351.
https://gretchen.law.nyu.edu/fac-chapt/1351
