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5 Nottingham L.J. 32 (1996)
The Crown and the Criminal: The Privilege against Self-Incrimination - Towards General Principles of Criminal Procedure

handle is hein.journals/notnghmlj5 and id is 42 raw text is: THE CROWN AND THE CRIMINAL: THE PRIVILEGE AGAINST SELF-INCRIMINATION - TOWARDS GENERAL PRINCIPLES OF CRIMINAL PROCEDURE Bostjan M. Zupancic* INTRODUCTION THE USUAL JUXTAPOSITION OF THE INQUISITORIAL AND the adversarial models of criminal procedure derives its continuing pertinence from the persisting incompatibility of two conflicting basic philosophies concerning what, in essence, is law. These two different political, ideological, socio-psychological etc. philosophies originate in the history and the (un)democratic tradition of a particular society. They are historically determined and very difficult to change. They represent two fundamental mentalities, two fundamentally different political and constitutional traditions. Their imagined convergence today is circumscribed by the framework of the underlying basic attitudes. We have, on the one hand, the authoritarian legal philosophy.1 It regards law dogmatically and deductively, i.e. as a set of imperiously imposed substantive rules to be forced upon all legal subjects. This tradition perceives the process of law as entirely ancillary to the implementation of substantive rules, the latter functioning as the unquestionable imperatives of the authoritarian power structure. For example, the whole emphasis in the Continental legal tradition is on the substantive aspect of law.2 The origin of all this lies in Kelsen's unstated premise3 that the function of law is to impose order upon the irregular, illogical, irrational and disorderly processes that are the outcome of antagonistic human relationships in the natural life of society. On the other hand we have the liberal4 legal philosophy. It regards law * Dipl.iur. (Lab.), LL.M., S.J.D. (Harv.), Professor of Jurisprudence and Criminal Law, University of Llubljana, Justice of the Constitutional Court of the Republic of Slovenia. We are speaking here of two Weberian ideal types, i.e. of somewhat hypothetical and exaggerated models or attitudes, not existing in their pure form in the empirical legal, political, ideological, anthropological social reality. Nevertheless, as demonstrable tendencies they manifest themselves again and again in the decisions of the courts, in the legislation, in police (mis)behavior etc. 2 In my opinion the general juxtaposition of the procedural and the substantive aspect of law has a great explanatory value. First, the very distinction between the procedural and the substantive rules should not be taken for granted as something natural and self-evident; second, the question should be posed as to why law operates through these two, rather than one, separate functional aspect; this then, third, brings into focus a deeper understanding of the true - and rather more modest than we usually assume - natural function of law in social relationships. 3 Kelsen, Pure Theory of Law (University of California Press, Berkeley, 1967). 4 Hobbes, Leviathan (The Bobbs-Merrill Company Inc., Indianapolis, N.Y., 1958). For the broader definition of the liberal tradition see Unger, Knowledge and Politics (The Free Press, N.Y., 1974), at pp. 63-144.

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