Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide.

The article focuses on the nineteenth-century emergence of the comparative legal distinction between accusatorial (also known as adversarial) and inquisitorial criminal procedure systems. It traces the origins of these terms to debates in Germany, Italy, and especially France following the Napoleonic Wars and the Congress of Vienna, where the French Code of Criminal Procedure became a focal point for discussions about preserving or reforming legal and constitutional orders. French jurists, notably Joseph Louis Elzéar Ortolan and Faustin Hélie, developed a historicist and liberal nationalist framework that linked accusatorial procedure with liberty-promoting, often democratic regimes, and inquisitorial procedure with monarchical or authoritarian regimes, viewing modern French criminal procedure as a dialectical synthesis of both. The article highlights that these categories were used both as historical descriptors and theoretical models, shaped by nineteenth-century nationalism, imperialism, and historicism, and that while the accusatorial/inquisitorial divide has limitations and Eurocentric biases, it continues to offer valuable insights into the political and procedural dimensions of legal systems.