The adversarial and inquisitorial legal systems: truth before justice
Matthew da Costa
A justice system judges those within our community, delivering punishment to those we deem to have broken the codes we live by. However, each community’s method of justice is distinctive, reflecting both our differing interpretations of what is right and how this should be enforced. In England, Wales and the United States an adversarial approach is favoured, pitting parties against each other and forcing them to use their persuasive powers and legal knowledge to prove their case. Whereas in many European countries (such as France and Germany) a more investigative approach is taken, in which the state attempts to discover the objective truth before passing judgement. This essay will explore the adversarial and inquisitorial justice systems, showing that the inquisitorial system is a more effective way of delivering justice.
The adversarial System
Adversarial systems of justice are typically found in common law jurisdictions and were introduced by King Henry II of England during the 12 th century. 1 Common law is now a tradition in which courts must respect each other’s decisions and make judgements that are consistent with their counterparts where possible. In practice, this means that judgments made by lower courts (i.e. the Crown Court) must follow judgments made by higher courts (i.e. the Supreme Court). 2 Common law aims to maintain consistency across all of the courts, ensuring judgment is passed down in a similar fashion for similar cases. The adversarial system’s format contains two opposing parties who argue before a judge or jury to persuade them of their version of events. The parties are free to select the evidence their case will rely on, with the judge acting as a neutral party who listens to the evidence presented and will ultimately rule in favour of either side (in trials without a jury). In jury trials, however, the judge also ensures that the trial is conducted fairly and may direct a jury on how the law can be applied.
The inquisitorial system
Inquisitorial systems are usually found in civil law jurisdictions and are seen in countries such as Italy, France, and even Saudi Arabia. These jurisdictions often have an extensive set of codified rules that judges refer to when making decisions. 3 In European countries, civil law is derived from Roman Law in
1 Legal Dictionary. Common Law. (Common Law - Definition, Meaning, Examples, Crimes, and Cases (legaldictionary.net)). accessed August 15 th , 2023. 2 The Crown Court deals with criminal justice in England and Wales; the Supreme Sourt is the last court of appeal for civil and criminal matters in England and Wales. 3 Codifying is the practice of writing down the law in a systematic code.
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