Inquisitorial System & Adversarial System - Article Example

Table of Contents Table of Contents 2 Introduction 3 The Legal System 3 Prime Components of the Legal System 4 Civil Law 4 Common Law 5 Religious Law5 Methods of revealing evidence in Court 6 Inquisitorial Procedures 7 An Introduction to the Inquisitorial Legal System 7 History of the Inquisitorial System 7 Modern Features of the inquisitorial System 8 Adversarial Procedures 9 Distinction 12 Conclusion 14 Introduction The Legal System Primarily, there exist three major legal systems in the world; the common law, civil law, and the religious laws. Except for these, there also exist other legal systems such as Customary Laws, Common & Civil laws (which is a blend of both; Common and Civil), Muslim Law, and some Unknown / Undecided laws, which normally edit their laws and punishments very occasionally. Please refer to figure 1 for a complete outlook for the different systems that are followed throughout the whole world.1 Figure 1: Law wise division of the world2 Prime Components of the Legal System The following are the prime components of a Legal System: Civil Law Undoubtedly the most widely accepted law amongst all, the civil law is occasionally also accepted by the name "Continental European Law". But unlike the suggestion of the name, the continental European Law is not only meant for the European Union, but is also applicable in other continents such as Asia, South America, and Central America. The Civil law is deemed to run by the principles of the Inquisitorial Law System, whereby the court is concerned in obtaining decisions based on evidence presented.3 Common Law Within the countries that follow the common law standards, the decisions rely mostly on the negotiation abilities of Lawyers which play a major role in examining and cross questioning of witnesses. This law is more prominent for countries that follow the American legal system such as Canada, Australia, and of course the United States of America. The adversarial system of evidence procurement is seen within the boundaries of Common law based Legal Systems.4 Religious Law Includes the Muslim Law, Jewish Halakha, etc. And is mostly practiced in countries where the government is based on religionist principles, rather than practicability. Most of the Common and Civil law countries oppose Religious laws as these normally bring about severe and extremely dire punishments such as experienced mostly in the case of Islamic Laws. Besides these punishments, where ever these laws apply, other aspects have also been witnessed, such as degradation of the value of women in society, favour of self religion or the prime religion of the country (rest are deemed as outsiders and unfairness can thus be witnessed within the religious legal systems), and others.5 *** We shall further discuss about the Adversarial and Inquisitorial Leal Systems in the next segment of this report. Methods of revealing evidence in Court The two chief methods of revealing evidence in court are: Inquisitorial Procedures.6 Adversarial Procedures.7 Inquisitorial Procedures8 An Introduction to the Inquisitorial Legal System Based on the opinion of the author of this report; Inquisitorial System, which is the better amongst the 2 (adversarial and inquisitorial), is the system to present evidence in such a manner so as it leaves the court to decide who the culprit is or to make a fair decision on the honesty amongst any 2 parties.9 Inquisitorial System very generally implies to inquiries related to criminal procedures, and not inquiries related to substantive law. The inquisitorial system is usually used along with economies that rely on the Civil Legal systems, although it is not followed in 'all' civil legal systems, and still 'some' economies which are even though based on the Civil Legal systems, rely on other methods of revealing evidence in Court. Herewith the judge may directly question the witnesses and the criminal against whom charges have been pressed, in order to clarify the matter to him further. In very simple words, here in the inquisitorial Legal System the judge participates in the proceedings while acting as an enquirer, as opposed to an arbiter, which is the concept of the adversarial system. History of the Inquisitorial System Up until the 12th Century, most of the world relied up on adversarial and religious legal principles, but once science started expanding its roots and branches, and the populace of the world became more and more aware about crime and ethics, newer laws were created and the application of the inquisitorial system became a necessity considering the fact that many innocent lives were being taken due to the wrong judgments by the adversarial judgment procedures. At about that same time, the fact was known that under the adversarial system, guilty were being set free and innocent were being wrongly accused of having conducted a crime (According to the adversarial system which relies solely on voluntary witnesses, who could've in fact been wrong, and many people took advantage of this by getting their arch rivals or personal enemies punished). The inquisitorial system was then created as to finds out who the real culprit is' And within which the decisions would be carried out solely through the means of credible sources, which were present at the scene of crime' Many scholars identify 'Pope Innocent III' as the founder of this system, because ultimately it was the Pope that had fought the fight to change the system form adversarial to inquisitorial. Modern Features of the inquisitorial System One of the most important features of the inquisitorial system is that the judge acts as an investigator. This is by far the most elusive factor that differentiates the inquisitorial system from the adversarial system. As the judges in the inquisitorial system not only make their decisions based on the previous cases and legal rights, but the judges within the inquisitorial system also consider ethics of prime importance, and try to judge based on legal and ethical principles as to who is right and who is wrong. This system has its roots in France where it is called juge d'instruction or in simple English: Investigating Magistrate. Under circumstances where the judge gets sufficient credible witnesses or a government official (such as a Policeman) was present at the moment of crime, and had personally witnessed the crime, and if there are no possible evidences in favour of the criminal, the judge straight forwardly accuses the criminal of being guilty and fines him / punishes him / both, based on the law. No Jury: The judge is himself the jury. Less time consuming: Under the adversarial system where there is a jury involved, it takes a lot of time to predict the criminal as most people have different opinions, and the jurors are occasionally not very experienced as opposed to professional judges. Adversarial Procedures10 The adversarial system is yet another technique to display evidence in front of the court. This system primarily focuses on a neutral authority / jury rather than the one where the judge is the juror. Usually deemed as a slower system by many credible scholars, this system, the adversarial system relies on the negotiation abilities of the Lawyers, which play a dominant role in the proceedings. The lawyers usually start off by present evidence in favour of their own clients, in trying to prove their innocence and even the judgment by the government authorities (police, etc.) may be placed under questioning here. Ultimately based on the available evidences the neutral jury decides who is right and who is wrong. This is strictly a neutral decisive procedure and one of the defects of the system is that not many jurors are qualified enough or experienced enough to deal with various distinctive cases. The judge has very diminutive authority while these proceedings and the prime purpose of the judge is to maintain order in the court, and not question the accuracy of the jury, but the judge is the moderator of Law during proceedings which still make the judge the most supreme authority within these proceedings. This has led to many misjudgements as one may experience the reports by media about the jury being accused of wrong judgments and the jury being bribed or threatened. The fact is eminent that providing protection and keeping a watch on all the members of the jury is more difficult then observing a single Judge. Here the jury will favour the defendant who wins the case by convincing the jury to his / her own side of the story, and prove by any means necessary that the witness is right or wrong. Although, a superb factor here is that any side can cross question the witnesses of even the opposing side so as to generate 'any' piece of evidence in their favour. This gives a solid opportunity to lawyers to even help the guilty being proved innocent due to blabber - mouth witnesses; this may be witnessed under many cases. Another important factor is that the lawyers may also cross question the policemen which had caught the guilty during the act of crime. Hence these trials rely solely on the negotiation abilities of lawyers. Henceforth this also gives rise to the difference of pay scale amongst lawyers in these economies versus those that use the inquisitorial system. Although based on a prominent author's opinions the adversarial system is that the adversarial system is good for particularly those who are affluent as they may hire personal investigators, the best lawyers, [bribe jury], etc. so as to turn the case in their favour and under cases where the opposing party does not have adequate resources, it may as well be buried under tremendous paper work, and ultimately lose the hearing.11 But then again [another one of Mr. Freedman's personal opinion], it is easy to win over [bribe] a single judge then to hire so many people and induce the jury. [In favour of the adversarial system]12 But a large advantage that the author of this report feels necessary to emplace here is that the supreme court is not controlled by a single authority, such as the case with the United States of America where a panel of 9 judges are in charge including a Chief Justice, so no one person is in charge of the decision making process; thus providing more secure, accurate, and honest results. Although the fact cannot be ignored that based on a recent survey by the French Justice authorities, once the adversarial system had proved a verdict guilty, only 0.17 % were proved clear of all charges and innocent after a second proceeding (only in the United States of America), against the 2.3 % of the inquisitorial system 13. This fact alone proves that the adversarial system has proved to be much more accurate than the inquisitorial system. Distinction Factor Adversarial System Inquisitorial System Case in hand of' The proceedings in the case solely rely upon the final decision of the jury which normally exists of 10 members The Proceedings in the case relies upon the final decision of the Judge, which is the sole decisive authority Power with the Judge The Judge acts as a keeper of Law only and does not interfere with decisions made by the Jury unless they are against the Law. The Judge is the supreme Power. Position of a Lawyer Lawyer plays an extremely vital role in the hearings and proceedings, and the negotiation tactics of a Lawyer may turn the face of the case, and the decision of the jury Lawyer is of a lesser significance as compared to witnesses. Position of Witness Witnesses can be cross examined by the Lawyers in the vase of the adversarial system. Witnesses' posses' extreme power, as the decision normally takes place due to the availability and credibility of the witnesses as opposed to that of the adversarial system. Witnesses' posses more power than the Lawyer. Timeliness This system has proved to be slower as compared to the inquisitorial system. The jury might also need more time to decide as this case relies on the decision of more than one person and the thoughts of many different scholars might differ to an extent. Much faster system as no witness is cross questioned and the Judge can place his decision immediately after the witness has spoken. Fairness of Trials Although not proven, but it has been witnessed in the past that people with insufficient money to fight for their case usually give up or lose, as the fiscal position plays a vital role in hiring good lawyers, and of course a financially powerful man can even hire private investigators, etc. to find evidence against the opposition in order to further strengthen his own case. Whereas, the opposition [if] has limited time / resources on his /her hands might not be able to fight that. Fairness of trial may also be questioned here as a recent survey by the French Justice authorities has declared that once the adversarial system had proved a verdict guilty, only 0.17 % were proved clear of all charges and innocent after a second proceeding (only in the United States of America), against the 2.3 % of the inquisitorial system Expense More expensive procedure Requires lesser expenses. Persuasion Can be easily manipulated by a good lawyer Very Experienced Judge. Reason The Jury may not provide a solid reason behind their decision. Providing a reason is obligatory. Experience Jurors may not be experienced. Judge is experienced. Professionalism Professionalism is questioned due to lack of experience and knowledge. Judges are extremely professional and know a lot about Law. Conclusion Although the adversarial system has been proved more effective over the last century, but still the fact remains that the Jury can be easily manipulated by a strong Lawyer, and the experience of the jury is questionable. Not to mention the fact that the jury duty may prove to be strenuous to the selected participants. Whereas, the Judges may handle a great deal of stress due to their vast experience in the field and may also present a fair judgment in a much shorter period of time. Plus, the judges may correctly estimate the incurred losses, for which the jurors are not trained. Then again, relying on the judgment of a single authority is questionable as 2.3 % of cases have been proved to have faced wrong judgment. Read More