Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms

Criminal justice systems are under constant strain. Rising case loads, crowded court dockets, growing prison populations and high recidivism rates have resulted in growing frustration with systems which have been criticized as being expensive, out of date, complex, unfair, slow and lacking regard to victims of crime and to the public generally. One consequence of these criticisms has been a search for different and innovative methods of dealing with crime and associated social problems. In a number of common law countries, theories and practices of restorative justice and therapeutic jurisprudence have developed, creating more inclusive, optimistic and positive frameworks for justice systems and transforming the ways in which public and private dispute resolution systems are conceived of and operate. In these jurisdictions, the growth of interest in different modes of dispute resolution reflects a deep disenchantment with the traditional, confrontational techniques that are inherent in the common law adversarial system. Though therapeutic jurisprudence and restorative justice are the best-known of such theories, they are not the only ones to have been developed, articulated and practiced. Others, including appropriate dispute resolution, comprehensive law, creative problem solving, holistic law, problem-solving courts, managerial justice and multi-door courthouse theory have been influential in shaping public policy and legal education. The purpose of this paper is to suggest that many of these innovations could be considered by inquisitorial systems, albeit with due regard to the historical, political and cultural differences between the two systems. It argues that adversarial and inquisitorial justice systems should transformed rather than hybridized, hence the terms ‘post-adversarial’ and ‘post-inquisitorial’ justice.