This is an important set of books by Judge Zupančič on international and comparative criminal law and human rights. Despite the fact that international criminal law is rapidly evolving, there are a few books that bring a comprehensive comparative perspective into this emerging discipline of law. Recent books of reference focus on comparison between various national legal systems,Footnote ¹ study a specific area of criminal law and procedure,Footnote ² or address key questions of criminal law from a historical perspective.Footnote ³

This review centres on the first book entitled The Owl of Minerva: Essays on Human Rights and makes references to a collection of the author's individual judicial opinions in the second book entitled The Owlets of Minerva: Human Rights in the Practice of the European Court of Human Rights. The two books represent a collection of innovative ideas that Zupančič continues to develop along his dynamic professional path. Apart from being a professor of criminal law and jurisprudence in the US, France and Slovenia, he has also extensive experience in ‘legal reality’ as judge of the European Court of Human Rights, judge of the Slovenian Constitutional Court and Vice-Chair of the UN Committee against Torture.

In contradistinction to the existing approaches to comparative criminal law, Zupančič addresses the main issues through a jurisprudential lens. He presents his conclusions through deconstruction of aprioristic assumptions—hidden in theoretical works, pieces of legislation or the dogmatic mindset of lawyers—about institutions of criminal law both in the common law and continental law systems. Read together, the two books display a fruitful interaction between theory and practice. A saying attributed to Kant advocates that there is nothing more practical than a good theory and an avid reader can discover this wisdom time and again in the individual opinions of Judge Zupančič in The Owlets of Minerva. On the other hand, there is no doubt that insights from case law—municipal, European and international—informed Professor Zupančič in writing his theoretical work The Owl of Minerva (cf. Preface by Judge András Sajó in The Owlets of Minerva, pp. 17–27).

The Owl of Minerva consists of three parts. The first section deals with human rights in the context of constitutional criminal procedure, the second section addresses human rights in the framework of substantive criminal law whereas the last section takes a look at human rights from the perspective of international and constitutional law.

In the first section, the author describes the theory of adjudication. The process of adjudication can exist only if there is some greater power, i.e. the state, which establishes its absolute prevalence in society and ends the Hobbesian ‘warre of everybody against everybody’. However, agglomeration of power by itself does not suffice—the state must offer an alternative mode of conflict resolution in the form of an independent system of adjudication. This system then translates the brutal Hobbesian power game into a legal language game. Adjudication promotes ‘the rule of law’ and puts limits on the power epitomized in ‘law and order’. ‘The rule of law’ and ‘law and order’ represent an antinomy in which the two components constantly exclude and necessitate each another (The Owl of Minerva, pp. 18–35; The Owlets of Minerva, Papachelas case, pp. 139–142). But how can this legal language game, in which the state enjoys a privileged position of power, imply equality of arms in criminal procedure?

Here Zupančič offers what is his most original contribution to comparative criminal procedure. The factual power of the state in adjudication can be countered only with normative postulates that the state apparatus must never violate. The main postulate is the privilege against self-incrimination. This privilege puts a burden of proof entirely on agents of the powerful state, i.e. the prosecution and police. These organs should never infringe the individual's autonomy and compel him to incriminate himself. If this nevertheless happens—through torture, manipulation, coercion, etc—the only appropriate remedy is to exclude immediately such evidence from criminal proceedings. This is called the exclusionary rule and here the author's position is resolute: the exclusionary rule is the alter ego of the privilege against discrimination. (The Owl of Minerva, pp. 92–103, 125–36, 169–71; The Owlets of Minerva, Jalloh case, pp. 199–208, Jasper case, pp. 188–9.)

The second section of the book deals with substantive criminal law. One fundamental issue is the principle of legality to which the author devotes most pages. He first analyses the influence of Cesare Beccaria's Essay on Crimes and Punishments (1764) on criminal law. He credits Beccaria with an invention of the law ‘fixing the limits of punishment’, which never existed before in such an articulate form. However, the author continues with a statement that this requirement for clarity—although desirable—is not attainable because it represents nothing more than an illusion (p. 199). This is particularly surprising in the light of the commonplace assumption that the principle of legality stands as a solid bedrock of every democratic legal system. Although the principle of legality is expressed in clear and concise terms—nullum crimen nulla poena sine lege praevia—an analysis of all relevant combinations in a given criminal code, say, with 263 crimes, yields a startling result of as many as 50 billion possible major premises (pp. 260–319). From such a perspective the principle of legality is clearly an illusion (see also The Owlets of Minerva, Hermi case, pp. 179–184). However, here the author sheds more light on the operation of criminal law. Although the principle of legality has to do with objective, rigorous and logical legal restrictions on the state's power to punish (Strelez, Kessler and Krentz case, p. 230), the exercise of this principle in the last resort rests on the moral autonomy and personal integrity of judges (cf. The Owl of Minerva, pp. 123–4). A seemingly static principle of legality is therefore indistinguishable from a more dynamic principle of the rule of law. The author also addresses the theme of punishment and its influence on normative integration. The main message is that punishment can serve as a vehicle out of a normative crisis—Emile Durkheim's anomie—as long as legal prescriptions identify progressive social values, which can be thereafter interiorized by individuals. Otherwise, punishment may even deepen the social crisis (pp. 203–44).

The book concludes with insights on the functioning of the European Court of Human Rights. Zupančič is clear in saying that this Court has a constitutional quality. Therefore, in practice its judgments have a precedential, erga omnes effect (pp. 351–5, 365, 380–3; The Owlets of Minerva, Lucà case, pp. 471–5, Broniowski case, pp. 510–12, Hutten-Czapska case, pp. 520–4). The author then goes on to consider the issue of access to court as a fundamental human right and a precondition for the exercise of adjudication. In practical terms there is no division between a substantive right and procedural remedy: they are inseparable and a substantive right is its remedy (see The Owlets of Minerva, Roche case, pp. 99–107). In the last essay, the author sheds light on the important distinction between a right and a privilege referring to Lon Fuller's dichotomy between morality of duty and morality of aspiration. Rights and sanctions (penalties) fall into the morality of duty since they represent an expected behaviour that applies to all individuals. On the other hand, rewards and privileges are an expression of exceptional achievements propelled by the morality of aspiration. They cannot be articulated in legal terms and thus escape the logic of legal formalism. The distinction between rights and privileges therefore lends an important conclusion for litigation, namely, that rights are justiciable whether privileges are not (The Owl of Minerva, pp. 413–28; The Owlets of Minerva, Ezeh and Connors case, pp. 164–71, Achour case, pp. 237–41).

The Owl of Minerva is an innovative book with numerous original ideas on criminal and constitutional justice. The main ‘caveat’ that may apply to this book is that it is intellectually very demanding and necessitates an engaging reading. The book tests and reverses dogmatic assumptions about criminal law practically on every page. If a reader, however, keeps up with the author's tour de force he will benefit from expanded intellectual horizons and imaginative insights on criminal law and human rights. This is what makes The Owl of Minerva one of the most original books on the contemporary theory of criminal law.