Legal Process: The Pursuit of Victory Versus the Pursuit of Truth
Laws101 Legal Procedure -1-
JUSTICE AND LEGAL PROCEDURE
THE FACT FINDING PROCESS – ADVERSARIAL AND INQUISITORIAL METHODOLOGY
OR,
“THE PURSUIT OF VICTORY”
VERSUS “THE PURSUIT OF TRUTH”.
US Supreme Court Justice Warren Burger once remarked that if he were innocent he would prefer to be tried by a civil law court, but if he were guilty he would prefer to be tried by a common law court.
Since “the facts” are an important (absolutely fundamental) premise in reaching any practical conclusion about parties’ legal responsibilities, the fact-finding – or rather the fact-proving – structure of a legal system has a very significant effect on the outcome. Although academics can discuss problems from an omniscient “eye of God” perspective, the real world cannot; if a party cannot “prove” a fact to whatever standard, and by whatever means, the legal system requires then it might as well have never happened. Early legal procedures attempted to overcome this handicap by relying on divine intervention to protect or support the party in the “right” – methods of proof that we would now find distasteful and unacceptable. Every legal system must therefore work with a reconstructed model of reality, the content of which is determined by the rules of procedure and evidence (but which should ideally furnish the most accurate approximation possible of what actually happened?) The processes for establishing your legal rights, and providing remedies for breaches of them, do in a very practical way determine what your rights actually are in any given case. In the Liberal Democrat model outlined earlier, we now expect that that these processes will be fair and consistent with the ideals of a just system. There are two major systems for establishing fact in world legal systems: • the Anglo-American adversarial (or accusatorial) system, and • the Continental inquisitorial system (also referred to as the civil law) system which applies in most of the non-English speaking countries
JUSTICE AND LEGAL PROCEDURE
THE FACT FINDING PROCESS – ADVERSARIAL AND INQUISITORIAL METHODOLOGY
OR,
“THE PURSUIT OF VICTORY”
VERSUS “THE PURSUIT OF TRUTH”.
US Supreme Court Justice Warren Burger once remarked that if he were innocent he would prefer to be tried by a civil law court, but if he were guilty he would prefer to be tried by a common law court.
Since “the facts” are an important (absolutely fundamental) premise in reaching any practical conclusion about parties’ legal responsibilities, the fact-finding – or rather the fact-proving – structure of a legal system has a very significant effect on the outcome. Although academics can discuss problems from an omniscient “eye of God” perspective, the real world cannot; if a party cannot “prove” a fact to whatever standard, and by whatever means, the legal system requires then it might as well have never happened. Early legal procedures attempted to overcome this handicap by relying on divine intervention to protect or support the party in the “right” – methods of proof that we would now find distasteful and unacceptable. Every legal system must therefore work with a reconstructed model of reality, the content of which is determined by the rules of procedure and evidence (but which should ideally furnish the most accurate approximation possible of what actually happened?) The processes for establishing your legal rights, and providing remedies for breaches of them, do in a very practical way determine what your rights actually are in any given case. In the Liberal Democrat model outlined earlier, we now expect that that these processes will be fair and consistent with the ideals of a just system. There are two major systems for establishing fact in world legal systems: • the Anglo-American adversarial (or accusatorial) system, and • the Continental inquisitorial system (also referred to as the civil law) system which applies in most of the non-English speaking countries