Inquisitorial And Adversarial System Of Law
The judicial system, also called the judiciary, the courts system or the court organization that interprets, upholds and applies the law in a country, or sovereign state. It provides a system of dispute resolution as required by law. It is not the responsibility of the judiciary to draft or create the law but to interpret band apply it to the cases involved. The word judiciary also refers to the personnel, magistrate and judges, collectively as well as the entire staff that ensures smooth running of the system. The lawmakers did not allow the judges to interpret the law slightly before the French revolution and afterwards. This was the sole purpose of the legislature but the napoleon code dissolved this ban. In France for instance, no new law is made by a judge but rather expounds on the intentions of the legislature. The call is made by the doctrine writers and not the judges thus influencing the judicial.
In most common law countries e.g. Wales, England and the United States of America, a system of justice called the adversarial system is used. This is totally different from the inquisitorial system that is used particularly in many European countries and continental jurisdictions. The sitting magistrate or a jury, in more serious cases, determines the guilty party after listening to the prosecution and opposing defence presentations on the case. The witnesses can be called and examined as much as the prosecution and defence would wish since both parties are allowed to present their case as they wish but however, within boundaries as per the law. The two parties engage in a debate and whoever will display a better argument and best represents the interests of their clients wins the case. Hodgson (2005) says that the judge is generally there to ensure the proceedings are carried out in a fair and just manner according to the law acting as a referee or a partial arbiter between the concerned parties.
Inquisitorial system is that applied by most European countries under civil law for example France. This means countries that derived their law from the Napoleonic or roman codes. This system demands a judge to investigate actively the case in front of them. It is a legal system whereby the court is involved in determining the case facts partially or fully depending on the seriousness of the offence. The inquisitorial system does not determine the kind of crimes that is to be prosecuted or the sentences they carry but rather the way and procedure in which the trials and criminal inquiries are conducted. Hence this system applies to criminal procedure a different from issues of dealing with substantial law. Parkes (2003) found that the difference between the adversarial and the inquisitorial systems is commonly blurred and hard to tell as sometimes the admissibility rules of the adversarial system allows a judge to take the role of an enquirer rather than an arbiter. The inquisitorial judicial system is used more widely nowadays than the adversarial judicial system. Other countries use both the inquisitorial and adversarial elements in their judicial system. An example of such a country is Italy.
Criminal responsibility is defined as being responsible for any criminal action committed. The fact that one is behind or involved in the occurrence of a crime. The minimum ages of criminal responsibility varies in different countries, for example, in the United Kingdom; it is ten years while in Japan it could go up to fourteen years in Australia a rebuttable presumption is made and renders a child incapable of committing a crime. This in common law is called doli incapax.( Urbas 2000). The definition varies from country to country but generally in order to be responsible for a crime, the perpetrator has to fully understand what they did and that it was wrong.
Substantive law is the written or statuary law which governs the obligations and rights of the people who are subjected to it. It defines or dictates the legal relationship among people and the state.
Common law is the type of procedural rules and substantive law created by judges from court decisions and other similar tribunals also known as case law. It is not developed through the legislative statutes or the executive. The substantive law in this case relies hugely on the common law of the land and implies that similar facts should be treated in the same manner if it reoccurs. The court analyses a past case similar to the present one and is bound by the decisions and rulings of the past case. If, however the judge finds that a similar case has never been tried before (known as a "matter of first impression") then the judge has the duty and authority to create law through precedent. This is common mostly in Britain and most of her former colonies.
In contrast however, in civil cases the defendant is neither incarcerated nor executed. The losing party just reimburses the wining party. This is called punitive damages and meant to be a public example to prevent future law breakers from committing the same crimes. It starts from abstractions, differentiates procedural and substantive rules and generally formulates principles. And like the socialist law, the sources of substantive law here are the statutes and the legislation. The civil law is the legal system inspired through Roman law. It is the basic feature into which the substantive laws are written into a compilation and are not determined by judges. It is conceptually the group of legal systems and ideas which originated from the code of Justinian. The principle of civil law is to offer the entire citizens with reliable and written collection of substantive laws which pertain to them and also the judges follow. The civil law system is the oldest and most prevalent surviving legal system in globe (Michael, 1999). Composed of judicial officers, the court system is not bound by precedent.
Just like the civil tradition law system, the source of substantive law in the socialist system is the legislature and statutes. There are no judges but party members and career bearcats are qualified judges. Socialism tradition is the political philosophy which encompasses several theories of economic organization on the basis of direct or public worker ownership and also administration means of production and resources allocation. The socialists usually shared the view which the capitalism unjustly concentrated wealth and power amidst the small segment of society which controlled capital and derived its wealth via exploitation system. That in turn created unequal society which failed to offer equal chances to everyone in maximizing their power. This is common in the Soviet Union. The courts are subordinate to the legislature in making substantive law.
In the Islamic law tradition, the major source of substantive law is the religious documents of Islam. The lawyers play a distant and secondary law in order to qualify as a judge one has to attain religious teachings and minimal legal training. Initially the court made the Shari’a but nowadays the Shari’a is fast becoming subordinate to the executive. The substantive law in this case is basically the Shari’a law. This kind of law is practiced mainly in Saudi Arabia, Bangladesh, Gambia, Iran, Morocco, Oman, and Yemen among others.
The legal terms of public and private law may appear complicated to normal people and that is why there is confusion in the legal procedures. The Public law is the theory of law which controls the relationship amidst state and individual considered to be either company or citizen. The public law consists of three sub-divisions like criminal, administrative and constitutional law. The constitutional law entails various kinds of state like legislative, judiciary and executive. While the administrative law controls the international trade, taxation, manufacturing and the rest. The criminal law includes the state imposed sanctions for people or companies in order to get the social order or justice (Upendra, 1976).
The private law is referred to us the civil law and involves relationships between private relationships, individuals and amidst citizens and companies. It caters for obligations law and law of torts which are defined in two ways. Firstly, the obligation law regulates and organizes the legal relations in between people under contract. Secondly, Law of Torts remedies and addresses issues of civil wrongs which don’t rise from any contractual duty (Michael, 1999). The public law is distinguished from private as the law which involves state. Private law is the private bill which is enacted into law and targets corporations and individuals unlike the public law which has the wider scope and influence on general public.
In different countries the court arrangement are also different, for example, in Britain, there are no supreme courts but rather a house of lords that deal with appeals. However, the court structure of most countries is as follows; the Supreme Court, District Courts of Law, the Magistrates Courts, National Labor Court and Regional Labor Courts. The Magistrate’s Courts are the primary trial courts and have jurisdiction within the criminal matters in which the accused are charged with offense (Upendra, 1976). The District Courts form the middle level courts which deal with the jurisdiction of matter not within the sole jurisdiction of other courts while the Supreme Court has jurisdiction of hearing civil and criminal appeals from District Courts.