The Adversarial Nature of the Common Law System - Essay Example

The Adversarial Nature of the Common Law System Background: The Common Law System Common law, as opposed to statute law, is that component of the law that is “formulated, developed, and administered by the common law courts.” In other words, common law consists of the decisions of the court from the time the court system took root, which had become part of the law from usage. The English common law, in particular, became a distinct system during the reign of Henry II, dubbed the ‘lawyer king’, when he instituted the unification of the judicial system. The English common law, however, has it origin way before the reign of Henry II to the customs and traditions then already prevailing. Today, the common law is said to be a mixture, not only of court judgments, but also of statutes and equity and still retaining its distinguishing characteristic of being unwritten, as opposed to statutory law, although many leading and precedent cases have seen printing in law reports and journals. 1 The common law system, is however best understood by studying the components of its adversarial nature. Anglo-Saxon kings like Ine in 689-725 and Alfred the Great (875-900), caused the issuance of codes and laws during their reigns that were largely reflections of ancient customs in addition to some new innovations. The primitive practice, for example, of private vengeance in blood-feuds although not outlawed, but there were subtle moves to restrain them imposing upon a tariff called wergild set by the king, where a man’s value, determined by his social standing, had a corresponding price to be paid when he is wronged. 2 The Adversarial System The common law countries, like the Great Britain, the United States and Australia, employ the adversarial mode of trial whilst Continental Europe observes the non-adversarial or inquisitorial judicial system. The distinction between the two is that “the adversarial mode of proceeding takes it shape from a contest or a dispute: it unfolds as an engagement of two adversaries before a relatively passive decision maker whose principal duty is to reach a verdict. The non-adversarial mode is structured as an official inquiry. Under the first system, the two adversaries take charge of most procedural action; under the second, officials perform most activities.” 3 Moreover, adversarial systems are characterised by the following: the parties to the action control its flow or conduct; the trial consists of a continuous hearing and is the center of the judicial system; the production of evidence falls in the hands of the contending parties; the rules of court has no compulsory role. This is directly antithetical to the inquisitorial system where the judge takes the center stage and controls the flow of the action and determines the evidence to be presented as well as the procedure to be employed in the course of the hearing. 4 The Key to Understanding the Common Law System Is Its Adversarial Nature The adversarial nature of the judicial system in common law countries finds basis in the notion that the truth can be best be unraveled by opposing parties competing with each other to persuade and impress upon an objective referee, who is possessed of cold neutrality, that their position is the correct one and the truth is on their side. Two justifications for this idea is presented in the book Supranational Criminal Law: one, the success of a party depends on its ability to sway the judge or jury to its position and therefore it must exert maximum effort to bring up all evidence that will substantiate it whilst the other party, which is also induced by the same motivation, is also bound to exert maximum effort not only to unearth evidence for its case but one that will controvert the other party’s evidence and in this way, the passive judge will be in a position to determine which of the two have substantiated and defended its position correctly and persuasively, and; two, leaving to the parties the responsibility to search and present all evidence to strengthen their positions before the court will free the judge and the jury from engaging in the highly partisan nature of evidence gathering, investigation and interrogation of the witnesses. These activities necessarily presuppose a certain mindset as a prerequisite to developing a preliminary hypotheses and the temptation to succumb to one’s initial hypothesis is greater therefore jeopardising the requirement of cold neutrality. 5 In other words, the ultimate referee is not only protected from partisan-tending activities but is also shielded from a partial, partisan image which could undermine the entire judicial system. The aforesaid aspect of the adversarial mode of trial, characterises the underpinnings of the origin of the common law and is the key to understanding its foundation. The medieval system in the 11th century settled disputes through trial by battle, where the contending parties were made to face each other in a physical combat until one of them surrendered, is defeated or slain. The common law, whose beginnings can be traced back to this period, was influenced by this highly adversarial approach in settling disputes by following its notion of active party participation and the limited role of the judicial official. It was however in the 17th and 18th century that the adversarial system was firmly established after all its necessary components had fully evolved and matured, namely: a jury system; the passage of a Parliament act called the Act of Settlement which secured the terms of judges placing them beyond political whims and caprices; a legal profession with necessary forensic skills, and; the appellate review. 6 Thus, whilst the medieval system of trial by combat relied on the skills of a contending party to oust the other and win the dispute, the common law system mode of trial relies on the skill and conscientiousness of the parties to search, adduce and present evidence. “The system finds fulfillment when both sides present rival points of view, unearth embedded infirmities, and activate the proceedings with the sparks emanating from the clash of arms” (Sharma 1). The adversarial system therefore clearly mirrors the origin and influences of the common law which could be traced back to the medieval times. Another aspect of the adversarial system that clearly shows the roots of common law is in the limited role that judges play in court actions. The course of the trial and the determination of evidence is left in the hands of the parties and the judge is relegated to the role of a passive referee. In the medieval era from whence the common law originated, the referee to a dispute had little participation in the trial by combat and this traditional circumscription of a judge’s role remains a characteristic of common law even though lately, judges began to take in more significant roles during trials, although such additional powers remain on the technical side. 7 The fact that adversarial trials practised in common law systems are very much left in the hands of the contending parties, with procedural laws not in strict observance, points to the characteristic dynamism of a system that incorporates the traditional and the evolutionary. Under the adversarial system, the judge plays the traditional passive role of the referee or umpire whilst other traditional processes, of cross-examination and “the standard yardstick of credibility”, come into play. 8 The fact however, that the contending parties determine the course of the trial provides the dynamism in the adversarial mode of trial and the common law system in general as the unpredictability of the method only reveals itself in the course of the trial. This aspect in common law judicial system, where parties are given the leverage to introduce and shape issues before the court and are compelled to continuously clash with each other from the opposing ends of the spectrum armed with respective contrary evidence as a tool of uncovering concealed infirmities, guarantees the receptiveness of the system to change as may be called for by the exigencies of the time. This concept of the adversarial as both traditional and modern is a reflection of the larger system that it represents and provides yet another key to what the common law is. Although common law largely relies on the concept of stare decisis, the doctrine which subscribes to the hierarchical roles of principles of law previously enunciated by courts, it is nevertheless a system that is underpinned less by constancy but by the dynamics of evolution. As Roscoe Pound observed “The law must be stable, but it cannot stand still” (qtd Hutchinson 1). This is because “the common law’s peculiar forte is seen to lie in its capacity to allow for change and innovation in an overall process that emphasises the importance of continuity and stability.” The continuity and stability is largely derived from the system’s adherence to principles of law adjudicated by the courts in the past, a method that is rationalised both by acting as a check on judicial power and as legitimising the same power, which is unelected by the people, acknowledged as a repository of democratic processes and values. On the other hand, the system’s malleability or capacity to embrace change to accommodate contemporary exigencies can be gleaned from the fact that although decisions of the past are resorted to as a standard in the administration of the system, it does not necessarily mean restricting itself to them or mechanically applying them. The common law system adheres to the substantive aspect that “animates the law” as much as to the formal features of the stare decisis. 9 This dynamic character of common law is reflected in the adversarial nature of its judicial system Conclusion The adversarial nature of the common law judicial system provides much clue as to the nature of the beast itself, so to speak. The necessary clash of the contending parties compelled by the contest-like manner of persuading the court as to the veracity and correctness of their respective positions essentially hints at the roots and origin of the system. In addition, the antithetical characteristics of the traditional and the dynamic in the adversarial system reflected in its adherence to the principle of stare decisis and its dependence on the contending parties to call the shots making it susceptible to unpredictability likewise reveal the inherent quality of the system to dynamism as a consequence of the interaction of the traditional and the unpredictable. The adversarial nature therefore of the common law system provides a key to its understanding. References: Haveman, R & O Kavran & J Nicholls 2003, Supranational Criminal Law: A System Sui Generis, Intersentia nv. , Belgium. Block, BP & J Hostettler 2002, Famous Cases: Nine Trials That Changed the Law, Waterside Press, Hampshire. Care, JC 2004, Civil Procedure and Courts in the South Pacific, Edition: 2, Routledge Cavendish, London. Hutchinson, AC 2005, Evolution and the Common Law, Edition: illustrated, Cambridge University Press, Cambridge. Landsman, S 1984, ‘The Origins of the Adversarial System’ Law as Culture by Kathy Laster, Federation Press, NSW. Sampford, C & S Blencowe & S Condlln 1999, Educating Lawyers for a Less Adversarial System, Federation Press, NSW. Sharma, D 2008, ‘Clash for Truth in Adversary System’, Chir Amrit Law Chambers, http://www.chiramritlaw.com/app/webroot/files/8.pdf Read More