Classical criminal law focuses on the individual, and proposes to determine criminal liability only after a deliberate process that examines issues related to responsibility and harm; insists on strict rules of criminal process; and requires a high standard of proof—beyond a reasonable doubt. Lon Fuller elaborates on the nature of adjudication, exploring its form and its functions, and insists that adjudication is not an appropriate form of decision making that deals with “polycentric” issues. Malcolm Feeley (The Adversary System) explores the nature of the adversary system, and why its proponents think that at adversarial trial is so effective at eventually getting at the truth.
But the fact of the matter is that in most adversarial systems, very few—a tiny number—cases are resolved through adversarial trials. About half of all cases brought before the court are dropped outright by the prosecutor or dismissed by the judge, and those which remain are often disposed of by pleas of guilty, often to reduced charges.
Is the Anglo-American (including Israeli) criminal process still a distinctively criminal process, or has it abandoned all concern with criminal liability in the classical sense, and replaced it with a regulatory process of some sort, either of the kind Braithwaite advocates of in the form of risk analysis? Do you agree: Yes? No? Partially?