Monday, 24 January 2022

Adversarial and Inquisitorial Systems - Manav Puri@LexCliq

                    Adversarial and Inquisitorial Systems


Introduction;

The legal system is made up of set of rules, regulations, processes, and various legal institutions by which the public initiatives and private aspirations which can be carried out through legal ways. In other words, it is a system for elucidating and enforcing the laws as well as the rights and responsibilities in a variety of ways. Every legal system in this world can be broadly classified into two types – The Adversarial and Inquisitorial, where both systems have the prime objective of dispensing justice, however, they differ in their techniques for adjudication and justice delivery. 


Classification;

  1. Adversarial System – The parties in the legal proceedings not only prepare their own theories for the case but they also gather evidences to support their arguments. The parties are supported by their lawyers, who play a vital role in dispensing justice to their clients. The lawyers may even gather evidences and be a part of the cross-examination, and when the bunch of evidences are presented by the other party in dispute. The role of the judge or the decision maker is passive as the judge pronounces the judgement based only on the evidences and arguments that are presented by the parties and their lawyers.

Example - The adversarial system is generally practied in common law countries, which are UK, U.S, Australia and India.


Advantages of Adversarial System; 

  • The process of cross-examination is very useful and the best way to test the righteousness of the witnesses presented.

  • The parties will be more satisfied to accept the final judgement, as they have an effective role to play.

Disadvantages of Adversarial System;

  • The cost of getting justice falls upon the parties, that can give rise to the sense of discrimination amongst them. Parties with better resources are able to get justice by hiring more experienced lawyers and by presenting complex evidences which the other party my lack. Accessibility and affordability to these resources of justice are important challenges for the adversarial system of dispute resolution.

  •  The role of lawyers, and the formalities, may delay the trials to reach to its end.

  • Judges play a less active role in this type of dispute resolution, as he is not duty bound to determine the truth by his personal views, but by the evidences and arguments that were presented in front of him.



  1. Inquisitorial System – In an inquisitorial system, the judge/decision maker takes a center play or plays a crucial role in dispensing justice. The role of the decision maker is of determining the facts and issues being part of the dispute. The judge/decision maker also decides the ways in which the evidence must be produced prior to the court. The judge after facts being presented in front of him, he then determines the evidences produced before him and decides upon the right claims. This model of adjudication or dispute settlement is also known as interventionist or an investigative model. Furthermore, in this type of system, less dependency is shown on cross-examination and other techniques or formalities that the lawyers often use to evaluate the evidences of their opposing counsel.

Example – The Continental Europe, following the civil law system has adopted the inquisitorial system of Dispute Resolution.




Advantages of the Inquisitorial System;

  • This type offers procedural efficiency as the active role of judges tends to avoid the delayed and prolonged trials, resulting in speedy delivery of justice.

  • This type of system protects and ensures equality between the parties as even, the party with better resources and expert lawyers will not be able to change the thoughts of the judges.


Disadvantages of the Inquisitorial System;

  • In this system, since the judge steps acts as an investigator, he cannot be neutral while studying and judging the case, and has to determine the case with an open mind. 

  • There may be situations where the judge might be unjust or unfair with his judgements, due to lack of important structures and methods for fact finding and analyzing.


Conclusion;

We can say that the inquisitorial system can be understood as an official investigation for determining truth, whereas the adversarial system is based on the principle of competitive process, between the prosecution and defence to determine the facts of the dispute. The inquisitorial process on one hand, grants more power to the judge to oversee the case, whereas on the other hand the judge in the adversarial system, plays a role of an arbiter between prosecution and defence. Despite, having differences between them it has always been successful in balancing the interests, needs and expectations of the State in understanding and judging the offenders with, the interests of the citizens who may be caught up by the legal processes.


Written By – Manav Puri@LexCliq



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