Anglo-America criminal process shift to regulatory process

Comparative Law

There exist two legal traditions in both the United States as well as Europe- common law of the Anglo-American as well as the Germanic civil law. The two systems have undergone evolution into what is currently denoted as either accusatorial or inquisitorial systems.[1] The tradition of civil law is centered on an individual and is based on the Roman law tradition while the tradition in common law revolves around adjudication which can be traced to a period of Normans’ conquest of England. In common law tradition, the procedure is dictated by an inquisitorial nature of procedure which has challenged the majority of the legal professionals as well as laymen who are used to the accusatorial procedure.[2] Such broad and distinct legal traditions, as well as their historical links, have resulted in a greater number of procedural differences that have farfetched implications in the United States as well as the United Kingdom’s systems of criminal justice when compared to countries in the Latin America as well as Europe. This paper holds that the criminal process in Anglo-America has shifted from being a distinct criminal process towards a regulatory process premised on criminal risk analysis.

One major contribution to such a shift can be linked to the fact that courts in the weaker states, which are run on adversary systems, to be precise, exhibit a greater level of inefficiency as well as ineffectiveness.[3] Such shortcomings are characterized by the increase in the time of hearing a criminal case which in turn pushes the overall cost upwards leading to poor outcomes due to resource constraints. As a result, the shift in resolving disputes in the current administrative state has favored regulatory agencies as opposed to the use of courts.[4] Even though such a move is most apparent in the welfare state expansion that created regulatory agencies to manage disputes before they escalate, the same has been applied in civil law where regulation is greatly exploited in resolving disputes in matters that were once categorized as torts and contracts which were heard in common law courts.

For longer periods in both United Kingdom as well as North American, most of the major magistrates’ common response to criminal complaints was associated with the imposition of the recognizance to enhance peace, recognizance to enhance the defendant’s good behavior.[5] Such two legal forms that have close semblance were authoritative as well as effective regulatory devices used by the court to reduce the possibility of escalation of the conflict. In the United Kingdom, the courts required the suspects to have two relatives or friends who could post surety bonds on their behalf which stands to be forfeited in case of breach of court conditions.[6] Such conditions were marred with utmost vagueness which in turn promoted the victim’s, as well as court’s power and through such usage, friends as well as relative bond sureties, were effective regulatory devices. Individuals who ascribed to such requirements of the court worked tirelessly in an effort of avoiding any possible court trouble and could closely monitor the suspect lest they lose the bond amount and securities.[7]

Just like in the United States, Israel has shifted to community courts with a major emphasis on community involvement in the criminal process. Inspired by the Red Hook Community Justice center established in Brooklyn, New York, the Israeli community court functioned in addressing the distinct judicial as well as the social needs of the community at the local level.[8] The court systems of such nature emphasized the adoption of alternative punishment methods, which applies restorative as well as restitutive systems that cumulatively work to democratize the criminal system of justice. Even though views from certain spheres have negated the belief that the community courts have compromised the procedural rights of the offenders, the community courts have drastically minimized the rate of incarcerations as well as enhanced the trust of the offenders.[9] The US-based community courts, for instance, is characterized by the collaboration between the prosecutor, attorney of the defense, representative of the local community, as well as the social worker in the judge’s leadership to extend a comprehensive rehabilitation as well as restoration programs for perennial low-level offenders. With a major objective to strengthen the capacity of the local communities, courts of such nature only work on crimes that affect the sense of personal security of the citizens.[10] The implication is that there is a transformation in the criminal process that favors the regulations of some sort.

In another instance, the courts in New York City have also adopted the deliberate expansion of arrest of the misdemeanors as part of a new strategy in the criminal process. This comes in a backdrop of the abandonment of the adjudicative model of administering criminal law which is associated with specific cases guilt adjudication as well as punishment.[11] In place, the state adopted the managerial model that is characterized by the management of people. In the context of the adjudicative model, the actors of the criminal court’s practical orientation, as well as their routine functions, revolve around guilt adjudication accompanied by a punishment that is commensurate with the offense committed and is based on the establishment of guilt.[12] This means that the vision of the social control function of criminal law, in the adjudicative model, is to mete punishments for certain specified bad acts with the criminal process designed in the selection of the right persons for punishment through the establishment of whether the alleged bad act was committed by the accused. The criminal court actor’s practical orientation in the managerial model, on the other hand, revolves around supervision as well as population regulation especially those which are heard and determined in the misdemeanor courts.[13] Often, they attract little attention to guilt questions in individual cases. In the two models, the bottom line is the use of regulation in the criminal process other than the tradition that uses guilt and punishment.

Finally, in the context of the adjudicative model the fact-finding mission of the criminal courts plays a significant role in ascertaining the criminal law’s social control ends. Logged between substantive criminal law proscription as well as the hard nature that punishment is treated, the criminal process is applied by the adjudicative courts in the identification of guilt after which perpetrators are forwarded to the mainstream punishment centers where the actual actions of social control are witnessed.[14] Contrary, the social control logics, in the perspective of the managerial model, is not dependent on identification of the right people for punishment but instead adopts diverse procedural as well as legal tools in establishing, in due course, the characteristics of the defendant and the use of such information in building the of records on his general rule-following nature. Put differently, the essence of the criminal process in the Anglo-American criminal process has shifted to a regulatory process.


Dancig-Rosenberg H, Gal T. ” I Am Starting to Believe in the Word’Justice'”: Lessons from an Ethnographic Study on Community Courts.

Feeley M, ‘Criminal Justice As Regulation’ [2019] Berkeley CA 94720

Kohler-Hausmann I. Managerial justice and mass misdemeanors. Stan. L. Rev.. 2014;66:611.

Shapiro M. Courts: a comparative and political analysis. University of Chicago Press; 2013 Nov 15.



[1] Feeley M, ‘Criminal Justice As Regulation’ [2019] Berkeley CA 94720

[2] Shapiro M. Courts: a comparative and political analysis. University of Chicago Press; 2013 Nov 15.

[3] Feeley M, ‘Criminal Justice As Regulation’ [2019] Berkeley CA 94720

[4] Feeley M, ‘Criminal Justice As Regulation’ [2019] Berkeley CA 94720

[5] Ibid., p7

[6] Ibid., p9

[7] Ibid., p10

[8] Dancig-Rosenberg H, Gal T. ” I Am Starting to Believe in the Word’Justice'”: Lessons from an Ethnographic Study on Community Courts.

[9] Ibid., p15

[10] Ibid., p17

[11] Kohler-Hausmann I. Managerial justice and mass misdemeanors. Stan. L. Rev.. 2014;66:611.

[12] Kohler-Hausmann I. Managerial justice and mass misdemeanors. Stan. L. Rev.. 2014;66:611.

[13] Ibid., p91.

[14] Ibid., p69

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