Appraising the Adversarial System

Some Views of the Law

“The Law is an Ass”

To commence legal action is to enter a “bleak house” in which one “abandoned all hope” – Charles Dickens

Shakespeare's Hamlet was confronted by delays at law

WA Law Reform Findings

WA Law Reform Commission reported in 1999 that the system was…

• Inefficient

• Expensive

• Overly time-consuming and

• Complex

Adversarial Concerns

Procedures reinforce the problems of the adversarial system…

• Search for the truth is SECONDARY to the manipulation of the rules of the contest so as to win

Adversarial Concerns

The assumption that “the truth will emerge as a result to the contest” may be flawed.

Assumptions are…

1. Each party has equal knowledge & resources• financial resources and expertise are unequal

in reality 2. The parties’ themselves will adduce the truth • in reality lawyers represent the parties & use

expert knowledge to manipulate the rules

Adversarial Problems

Thus…

• A trial becomes a “strategic contest” between highly expert legal representatives for whom winning is more important that disclosing the truth

Alternatives to the Adversarial System

The Inquisitorial System…

• Judge (inquisitor) is responsible for investigation of disputes

• Inquisitor requests evidence and interviews witnesses as part of pre-trial procedure

• Inquisitor can determine questions of guilt etc without a formal trial – reducing the need for a formal trial procedure

• Relaxed rules of evidence allow hearsay etc. “Relevance” is the only criteria as to the admissibility of evidence

Advantages of the Inquisitorial System

• Better expertise in evidence gathering – in the adversarial system parties will only present evidence that will advantage their case

• Timely resolution due to ability of inquisitor to compel evidence

• Reduced manipulation of evidence and rules because parties have little control of proceedings

• All law is codified – there is almost no equivalent to Common Law developed by judges. This reduces judicial discretion

Judges & Lawyers

In the Adversarial System… judges are high status professionals because of their impartiality and law-making ability. Lawyers are very highly paid because they hold expert knowledge necessary for success

In the Inquisitorial System… judges are respected because of their central role but they lack the status of judges in adversarial systems. Lawyers have a much less prominent place because the parties don’t present their own case

Adversarial v Inquisitorial

The Adversarial system is said to the “Rolls Royce” of legal systems…

• It is expensive

• It is based on established tradition and heritage

• It delivers sound justice according to the principles of natural justice

Adversarial v Inquisitorial

The Inquisitorial system is said to be the “Volkswagen” of legal systems…

• It is cheaper

• It works adequately in achieving its goals – justice according to the principles of natural justice

References

Willmott & Dowse pp 343-344

Aldous Chapter 9 pp 260-281