Procedural traditions in flux
| Author | Professor Jonathan Doak,Stewart Field,John Jackson,David O'Mahoney |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| DOI | http://doi.org/10.1177/1365712716661483 |
| Subject Matter | Editorial |
Editorial
Procedural traditions in flux
The collation of this special issue stems from two colloquia held at the University of Nottingham and
Durham University exploring how procedural traditions have been adapted, interpreted and resisted
against the backdrop of convergence and increasingly diffuse relationships between the local, the
national and the global. Legal and policy ‘borrowing’ or transfer of what is (righ tly or wrongly)
perceived to ‘work’ elsewhere have become ever more apparent in recent times (Colson and Field,
2016; Jones, 2006; Pakes, 2014). This has duly highlighted a number of pressing questions concerning,
inter alia, the role of ‘society’, the ‘state’, the ‘nation-state’ and ‘tradition’ within the broader global
picture. Such trends are particularly evident in Europe, where the EU Area of Freedom, Security and
Justice and the European Court of Human Rights have been instrumental in driving normative harmo-
nisation which has arguably extended well beyond the contours of the continent. By the same token,
however, the recent Brexit vote in th e United Kingdom underlines the frag ility and aberrations of
convergence processes which can be sharply and unexpectedly undercut by developments at local or
national level.
Such challenges underpin the need to re-examine the utility of certain long-standing models and
labels which have long informed academic inquiry in the area. Perhaps the most apposite example
can be found in the usage of the adversarial/inquisitorial dichotomy which—while never intended
to act as a definitive taxonomy—has arguably been rendered partially redundant by the mutual
tendency for systems to cherry-pick elements from each other. The rise of new normative para-
digms and frameworks of analysis, such as managerialism, consumerism, crime control, popular
punitiveness, human rights, restorative justice, etc. serves to underscore the plurality of forces
which now bear influence on the evolution of national justice systems. In this sense, procedural
traditions ought not to be regarded as fixed entities, but rather as fluid and porous concepts, which
are constantly being reinterpreted and reshaped by national and transnational social and legal
movements (Field, 2009; Jackson, this issue).
The papers contained in this issue advance new understandings of both how and why procedural
traditions have evolved in recent years within the context of social and political change as well as
heralding fresh insights into some of the normative and practical solutions that may underpin future
developments. As with many special issues, the papers included here range in their topical focus but
engage, in various ways, with the themes alluded to above. They constitute a small but illuminating
snapshot of the range of papers and informal contributions at the colloquia, and we take this opportunity
to thank all delegates from the 11 different jurisdictions which participated.
The special edition opens with an article by Chrisje Brants and Stewart Field, who evaluate
the significance of ‘cultural trust’ in relation to wrongful convictions in England and Wales and the
Netherlands. While the inquisitorial tradition of the Netherlands has traditionally emphasised the
active role of the truth-finding judge and the dossier, the adversarial tradition of En gland and Wales
affords priority to autonomous party rights to collect the evidence, present it in a manner that suits
them at trial, and challenge opposing witnesses through oral cross-examination. Arguing that proce-
dural traditions are based ‘critical points of trust where fundamental assumptions are made upon which
the fact-finding capacity of the system is based’, the authors warn that perceived strengths may, in fact,
‘become points of weakness when the assumptions upon which they are built no longer correspond to
The International Journalof
Evidence & Proof
2016, Vol. 20(4) 263–265
ªThe Author(s) 2016
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DOI: 10.1177/1365712716661483
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