The Adversarial Justice System - Essay Example

COMPARATIVE LEGAL SYSTEMS Comparative Legal Systems: The Adversarial Justice System Comparative Legal Systems: The Adversarial Justice System Allsystems of justice are adversarial in nature. To what extent they are fair or just simply depend on the players, the judges and the set up of legal principles applied. There are opposing sides to any judicial proceeding which requires an overseer to maintain fair play in the process. Although the adversarial aspects of the judiciary are designed to give fairness to each side, governments that administer the court systems are at an advantage that tends to make the adversarial process unjust. For instance, the government or the prosecutorial side of courts have unlimited resources at their disposal to build a case against a defendant or respondent, whereas a respondent has only their own resources to rely upon. In some cases the opponents in a case are allowed the opportunity to present their case to a jury. In other instances the opposing parties must rely on a judge only to decide the truthfulness of each side. To understand the adversarial system of justice, one must notice the distinctions between the types of judicial systems in practice today. “Let us start with the classical distinction between adversarial and inquisitorial systems of criminal justice. The usual way of describing the former is as a contest between two equal parties, seeking to resolve a dispute before a passive and impartial judge, with a jury (the people) pronouncing one version of events to be the truth.” (Fennell, Harding, Jorg & Swart, 1995). Where there are two parties interested in the truthfulness of an issue, fairness may be compromised when the interests of either party are at stake. The adversarial process incorporates just that. “But this places inordinate faith in the notion that partisan manipulation of evidentiary materials, even under equality of arms, can put an independent judge in a position to determine truth--an assumption at best unproven, and at worst highly implausible. Add to this anxieties about the capacity of procedural rules to ensure equality of the parties, and the relationship between procedural fairness, truth, and legitimacy becomes more difficult.” (Fennell, Harding, Jorg & Swart, 1995). In English criminal courts of first instance, the Justice of the Peace or Stipendiary Magistrate decide cases without a jury. “The chief function of these officials is to try relatively minor criminal offenses, although they do have jurisdiction in certain domestic relations -- matrimonial, bastardy, and rate cases, and a few administrative functions -- and, as indicated, determine whether there is sufficient evidence to commit the offender for trial before a jury in a higher court.” (Abraham, 1968). The offender’s case is not tried automatically before a jury until the Justices of the Peace or the Magistrate decides that it warrants a jury. This part of the adversarial process is unfair because the accused needs to present their case before it is decided whether or not to allow the case to be tried before a jury of their peers. Without the benefit of a jury, the defendant is at the mercy of the court, unlike the prosecution, which has only to prove its case and without the potential of court ordered sanctions. “Everywhere in the civilized world courts have two functions which can often seem to be in conflict. They are, on the one hand, the machinery which legitimizes the use of coercive force over the very body, rather than only the property, of the individual. Courts, and only courts, can ultimately sanction the forcible movement, removal, and detention of an individual.” (Robertson, 1998). The French court system primarily operates under two distinct functions. One court system is called the ordinary courts, and the other is called the administrative courts. To which court cases go before, “… the eight-member Tribunal des Conflits (Tribunal of Conflicts), created especially for that umpire-role, and headed by the Minister of Justice, determines to which of the two major court systems a case goes.” (Abraham, 1968). Each case is tried by several judges sitting en banc, usually three, but always comprising an uneven number, with the decision reached by majority vote. Just like the English court system, the cases which get to go forward with a jury are decided by judges first. Again, the defendant is not afforded the opportunity of a jury trial at the onset. This is determined after the parties have entered the adversarial process. The set of rules for which each party may present their side of a case goes to the heart of the adversarial system of justice. The rules, mainly through legislation, dictate how a case may be presented and at what stage of the proceedings certain aspects of a defendant’s or prosecutor’s case may be laid out. If the procedural rules favour one party over the other, than the process can hardly been seen as equal in justice. The adversarial system of justice relies upon four presumptions: First, that the parties are both legally represented; second, that the lawyers are roughly of the same caliber; third, that each parties interest are promoted to the fullest of each adversary’s ability; and fourth, that the court rarely needs to intervene on the interest of the public. (See Zuckerman & Cranston, 1995). The adversarial process attempts to be fair and just in that the parties that enter the process do have control over initiating the action, clearly outlining the nature of the action through pleadings, exploring the legal framework for which their action falls under, and surveying possible settlements to their actions. Each opposing side is afforded these opportunities in legal proceedings making the adversarial process fair and just. But in criminal cases, the odds are stacked against defendants and since the process is ultimately made up of opposing parties, the adversarial process is not always fair, just and in the best interest of the public. The Roman Influence in European Law Legal systems are set up in an adversarial system of justice. This was, in large part, due to the laws and systems set about by Roman rule. European law has a deep rooted history that stems from the adoption and codification of laws and systems that were originally laid out by the Roman Empire. Though there were many interpretations of Roman law throughout the middle ages, and various applications of the law depended largely on the different regions of Europe. As Rome grew from a republic society into a powerful empire, Roman law was created and enforced to deal with the changing of social times. Throughout early European years, the Roman law has been dissected and applied by legal scholars to whatever pressing legal issues that reigned the various historical periods. “First, it has been seen as a foreign system, the product of an ancient slave-holding society and alien to later social ideas. Secondly, it has been portrayed as favouring absolutist rulers and as hostile to free political institutions. Thirdly, it has been regarded as the bulwark of individualist capitalism, favouring selfishness against the public good.” (Stein, 2). Much of what came out of the early Roman times was adopted in medieval Europe as the model for judicial systems. It was the fall of the Western Empire which began the medieval times in Europe and thus the influence and adoption of portions of Roman law. And much of the Roman law was practiced by the Church, and Italy had the most prevalent practice of Roman law. However, the Germanic law and populations were subject to the laws governing the communities at that time. By the eighth century, Roman influence in the Germanic law was more noticeable. “In the early middle ages, the imperial system of courts, staffed by professional judges who represented a state machine that could enforce their decrees, disappeared. In its place were groups of freemen from the locality who sought to settle disputes in such a way that the disruption of community life would be minimised. The assemblies of freemen had to establish the customary rules relevant to the case before them. These rules were not applied rigidly but provided a background against which the dispute was to be settled, often by compromise. Instead of the sense of belonging to a world empire, the individual had more of the sense of being part of a community of people of similar ethnic origin with similar customary traditions.” (Stein, 1999). Although Germanic law was not taught in the law schools, it brought about community, rather regional applications to legal matters. If there did not exist any royal rule for solving a particular case, the local customs dictated the rule to be applied, so long as the customs were good customs. The most influential of Roman law is that of, “… canon law covered many matters which were treated in Justinians law. It included a large part of criminal law, from adultery and perjury to forgery and homicide; it touched private law at many points where a party might be tempted to sin, such as loan, the taking of interest, sale and real and personal security for debt.” (Stein, 52). Canon law was the only law that was accepted by the church and that the powers vested in the Pope made the Church more powerful than the Empire’s rulers. As time went on, local laws took priority over common law. “Nevertheless, the Roman law ‘was generally described and, until it was superseded by modern national codifications, it continued to be described as the common law of continental Europe.’” (Carpenter, 1958). But during the eighteenth century, France moved toward a unified system of national law, complete with codes that adhered to the customs of the time. Not only did codification change the landscape of French law, so did the changes in how justice was administered. Prior to this, the northern territories of France followed the Germanic law as its base, while the southern regions recognized the Breviary of Alaric, a Roman source of customs, and applied the law accordingly. “These became the pays du droit écrit in which the legal writers as well as the courts employed the Roman law in the application and interpretation of the local customs.” (Carpenter, 1958). This varied from the northern territories of France where the Germanic system of law was adopted and applied. “Courts of record appeared in the north of France as early as the twelfth century. Within the next hundred years the Parliament of Paris sat as a supreme court to which appeals could be taken from all the northern provinces. Judicial decisions began to supplement the customary law, and royal courts with appellate jurisdiction were established in almost every region of France. In these courts, where local and provincial customs were silent, the Roman law as set forth by Justinian was applied.” (Carpenter, 1958). During the eighteenth century, codification of laws became the newest trend in European law. To keep up with the times, old rules were done away with and clear codes were written to fit the customary needs of the time. The codifiers began the process with Roman law, but started to question its relevance during this new age of enlightenment. Law was thought to be a product of culture and not merely that of reason, which the codifiers took care to recognize. Today’s European legal institutions are extensions of the old Justinian law derived from the Roman empire times. Different applications of the Justinian law have been applied to various legal codes and national codifications which vary from country to country. But the underlying premise for the modern judicial systems of Europe all stem from the ancient Roman rule. Alternative Dispute Resolution Judicial systems are in constant evolution brought on by regular review and procedural testing. With this evolution, new alternatives to settling cases emerge and in some instances, put to practice to assess the relative merits of such alternatives. One particular substitute to the traditional approach to civil court is Alternative Dispute Resolution (ADR). This type of litigation brings litigants to the table, with an arbitrator, to settle their dispute without clogging the regular judiciary dockets. The outcome is based on the arbitrator’s findings, and those findings are binding on the litigants. “…civil procedure should be shaped not just to adjudicate some disputes on their legal merits, but to encourage most disputants to resolve their disputes in a more co-operative and flexible way.” (Chiarloni, Gottwald & Zuckerman, 1999). ADR is important to the English civil justice system where the concern lies within the economy of the civil courts and where disputes may be disposed of in a much more timely fashion and in fairness where the litigants simply come to agreement regarding the settlement of their case. Because the courts could no longer keep up with the demands of litigants to have their disputes resolved through judicial means, ADR allows the courts to concentrate on issues that need authoritative intervention and procedural guidelines for their outcomes rather than by arbitration alone. These types of cases pale in numbers compared to the masses of general disputes that can be solved through ADR. The courts cannot offer the expediency for settling the most common matters and ADR offers a solution to the court’s delay. “In England, ADR in the form of arbitration is of particular significance to major commercial parties, and is common in the fields of shipping, construction, insurance, and international trade. Because formal arbitration is the ADR option most like ordinary court proceedings, it is particularly suitable for these big money disputes.” (Chiarloni, Gottwald & Zuckerman, 1999). Since most cases are settled, the courts cannot be expected to prepare every case for a trial, and trials are not always necessary in every dispute. Arbitration begins the process of settlement in that the litigants may choose an arbitrator with experience over their particular dispute. Because so much case preparation is required before an arbitrator is introduced in a case, settlements may be expeditiously executed, or at least laid out to come to a favourable settlement. In some legal systems, judges may require the parties of a dispute to go through mediation first before the court will look at their matter. To force the parties to mediation in some systems requires legislation above the courts. But not all cases may be solved through mediation. “Some will require a trial and a court judgment. But there are many disputes which, though they cannot be resolved by mediation, can and should be resolved by some adjudicatory process which is cheaper and quicker than a trial.” (Chiarloni, Gottwald & Zuckerman, 1999). To achieve some adjudicatory means to a matter, all relevant information must be exchanged between the parties. And careful attention must be paid to ensure that the rights of either party are respected. “The rise of the alternative dispute resolution movement, fostering scepticism about the wonders of litigation, underscores the difficulty of agreeing on a standard for appraising procedural systems. According to that movement, what we should be trying to assess is all of societys methods for settling disputes, of which civil litigation constitutes only a part. Furthermore, some might claim, civil procedure should be shaped not just to adjudicate some disputes on their legal merits, but to encourage most disputants to resolve their disputes in a more co-operative and flexible way.” (Chiarloni, Gottwald & Zuckerman, 1999). ADR emerged as a way for parties in a matter to fully take a more active role in the adjudication of their case(s). In cases of employment disputes, rather than bring these matters into a court setting, employers and employees may have their dispute reviewed and settled by an arbitrator. This may be done in an expedited manner where waiting for a court case to come to fruition, the matter may become moot or simply resolve itself. Since ADR is so widely used today, certain limits need to be placed on the arbitration process so as to not invite those matters which may fall outside the scope of adjudication settlement authorities. The parties to an action must both be willing to have their dispute settled by an arbitrator rather than a court and its procedural formation. Also, some disputants may not come to an agreeable settlement. The courts then need to be ready to take the cases that tried ADR as a means of settling. Although ADR may work in many cases and produce reasonable settlements, the courts need to continue to play a role is dispute settlement. They cannot completely remove themselves and hope for ADR to be the only avenue in settling civil disputes. In this writing, the adversarial process begins the journey through which matters of law are addressed and concluded. How this is accomplished is by way of many approaches to interpreting the law and applying what customs and ethos have laid out as appropriate means to governing the various European locals. With changing social times and the need for the law to adhere to those times, alternatives to the application of law needs to be explored and assessed for their relative merits in continuing the evolution of legal applications. Since the foundations of legal authority have been laid out in many ways, and because many of those foundations have had to give way to modern social times, the legal arena does give fair play to this aspect of everyday life. To say that the adversarial process is unfair and unjust may not completely and accurately describe the judiciary. The fact that opposing parties may address their grievances seems rather fair at the onset, which is how many legal systems are set up. But the fair play may be lost in the way the procedures are applied in an adversarial process which would warrant the process unjust. There may never exist a perfect system which would eliminate any unfairness or just conclusions, but the great many attempts makes for systems that will constantly be scrutinised in effort to make legal systems fair, accessible and just for all. Legal systems are a work in progress. As long as we that fall under the jurisdictions of the various court systems, and scholars continue to question the laws that are set out before us and apply new standards, the equity of the court systems will continue to meet the needs of the citizens for which they are set up for. Clearly, fairness will always be an issue, and interpretation of the law will always lend itself to achieving that fairness, whether or not it is truly achievable. Works Cited Abraham, H. J. (1968). The Judicial Process. New York: Oxford University Press. Carpenter, W. S. (1958). Foundations of Modern Jurisprudence. New York: Appleton-Century-Crofts. Chiarloni, S., Gottwald, P., & Zuckerman, A. A. (Eds.). (1999). Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. Oxford: Oxford University Press. Fennell, P., Harding, C., Jörg, N., & Swart, B. (Eds.). (1995). Criminal Justice in Europe: A Comparative Study. Oxford: Clarendon Press. Robertson, D. (1998). Judicial Discretion in the House of Lords. Oxford: Clarendon Press. Stein, P. (1999). Roman Law in European History. Cambridge, England: Cambridge University Press. Zuckerman, A. A. & Cranston, R. (Eds.). (1995). Reform of Civil Procedure: Essays on Access to Justice. Oxford: Clarendon Press. Read More