Adversary or Inquisitor, Essay Example

An Analysis of Law’s due process

Since the Medieval Period, English common law courts have long employed Socratic Method of argument is necessary to arrive at ‘truth’ through examination of evidentiary facts in the proceedings. Learnt as a due process method of reasoning court opinion toward decision in common law nations, the proffering of adversarial by way of representation of magistrates or attorneys on behalf of the parties to the case is unique in that case law enables incorporation of precedent rules and review of policy in dialogue with articulated facts specific to the case in process (Langbein, 2007). Instrumental to the adversarial court dynamic is the diffusion of bias through arbitration of litigation in civil and prosecution in criminal law cases respectively.

The primacy of adversarial or Socratic approaches to due process in common law is often pointed to in defense of a democratic vision of a society built on true egalitarian thought, and basis for common understanding fostered through knowledge as the source of ethical allegiance in any political community. Mediation of decision by the judge(s) toward concurrence or dissent furthers the impetus of adversarial proceedings at the very quick of Law’s exercise (Kessler, 2007). Tacit consent to adversarial argument, rather than strict rule application by pure judicial review, distinguishes common law from civil and other systems of jurisprudence, and finds its ultimate manifestation in the jury of the people in collaboration with judicial decision.

Comparatively, civil law countries until recently, largely emulated what are known as ‘inquisitional’ jurisprudence, derived from the assumption that a panel of judges, rather than attorneys would be the appropriate source of contribution of evidentiary facts to a case (Merryman, 1969). Parallel to the strictures of the civil legal system’s roots in canon law process, application of law rather than decision organized around the concept of a jury of peers whom may sufficiently arbitrate adversarial argument in cases. In some cases, like the legal systems of South America, where an insurgence of human rights cases prompted the national tribunals to reconfigure the way in which law fit into the pattern of judicial decision, we can perhaps best posit the pronounced benefit of the common law model of adversarial debate. It is only by way of such radical situations of violence that the contours of court procedure might be revealed, and the distinctions between the administrative capacity’ of judges in different nations to sufficiently advocate on behalf of victims in the face of corrupt official bureaucracies, that remain cloaked in secrecy and authoritative license.

Works Cited

Kessler, A.D. (2007). Our Inquisitorial Tradition: Equity Procedures, Due Process, and the Search for an Alternative to the Adversarial. In: Langbein, J.H., ed. History of the Common Law. New York, NY: Foundation Press.

Langbein, J.H., ed. (2007). History of the Common Law. New York, NY: Foundation Press.

Merryman, J.H. (1969). The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. Stanford, CA: Stanford University Press.