The American Importation of the Comparative Accusatorial/Inquisitorial Divide: Francis Lieber’s Failed Transplant and Its Early Twentieth-Century Resurgence

What is it about?

This paper discusses when and why American legal thinkers adopted the terms “accusatorial” and “inquisitorial” from Europe to compare different procedural systems. The terms were first introduced to American audiences by the German-born jurist, Francis Lieber, in his 1853 book On Civil Liberty. Lieber borrowed these terms from the German jurist, Carl Mittermaier. In so doing, he defined accusatorialism as all but synonymous with Anglo-American procedure and a much-celebrated tradition of common-law exceptionalism. But Lieber’s importation of these terms did not catch on right away. It wasn’t until the early 1900s that “accusatorial” and “inquisitorial” became more common in American legal discussions. Despite this slow uptake, Lieber's approach is significant because it foreshadowed how accusatorialism—or as Americans ended up putting it, adversarialism—would come to be equated with Anglo-American (and more narrowly, American) procedure.

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Why is it important?

This paper helps to identify the historical roots of the tendency to deploy the comparative accusatorial/inquisitorial framework in ways that promote nationalistic ends.