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Published: Fri, 02 Feb 2018

Some legal system “adversarial” and some non adversarial

Group A:

What does John Langbein in Why Adversary Justice Fails, when he labels some legal system “adversarial” and some “non- adversarial”?

Explain to the best of your current knowledge, how a court in non-adversarial system would go about determining whether a person accused of murder committed the acts alleged against him; contrast that to how a court in an adversarial system would go about determining the answer to the same question.

When Langbien labels legal systems into adversarial and non-adversarial he does so on a few different grounds:

ORIGN: The initial divide in his mind when he brings about the existence of adversarial and non- adversarial is the origins of the system. The concept of the adversarial system was first thought of in England in the late 13th century. The spread of the adversarial system can directly be traced to the spread of British colonialism in the world, i.e.., the system was implemented in all British colonies in the world and till date remains predominant in most of the colonies. The non- adversarial system was given rise to Central Europe and has been seen to the system adopted by almost all of the nations except for the commonwealth nations. He stresses on a specific point that no free nation has ever chosen the adversarial system over the non-adversarial system.

METHODS: The second differential between the adversarial and non- adversarial is the method or rather the main functioning of the system. The major and perhaps the most pre- dominant difference are the responsibility of the fact to be presented before court as well as deciding the order and questions to be asked in a trial. They have full control over the direction of the trial and the judge mainly just an adjudicator or more prefers a witness in these proceedings. Thus it’s a battle to see who undermines the other and can win the case. As Langbien states in his article, it is now of more importance to the lawyers to win the case rather than help the court to achieve justice.

Non- Adversarial: In non-adversarial system, the defendant is the first person who the judge speaks to. It is a system where the complete power of the proceedings rests with the judge. He is in charge of the fact finding, summoning the orders of the witness, the evidence to be presented to the jury and the proceeding of the court. Any rivalry between the opposing lawyers is effectively reduced as they do not hold as much influence over the proceedings.

The methods that will be used by the court to determine whether a person has committed murder will be as follows in the respective system:

Non- Adversarial: In a non- adversarial system, the proceedings will begin by the inspection of the facts of the case, evidence, testimonies and other relevant details of the case by the judge himself or even perhaps by a lower-magistrate judge. After a thorough enquiry has been committed by the judge / magistrate only then the court proceedings begin. Once a jury has been has been selected and the court has been brought to order, it is customary that the judge will ask the defendant to convey his side of the facts first. Not only this is time saving this also helps cut to the heart defense’s argument also. It is generally preferred that the defendant speak because if he does not do so conveys a sense of in security from his behalf to the judge. Once the defendant has spoken then it is up to the judge to choose which witness to call and in what order.

Adversarial: In contrast to the non- adversarial system, the fact finding proceedings are conducted by the lawyers on both the sides. The judge is not privy to the investigations conducted but will have access only to the results of the examination which are put forth by both sides. Before the trial proceedings there is very lengthy process of choosing a jury. In this system the counsels decide which people out of all those summoned can be jurors. Here also the lawyers have free sign and can choose jurors who they believe sympathetic to the case. Once the trial proceedings begins the defense counsel has the first right to the case. Once he has given the version of his facts he may or may not call upon the defendant to address the court. In this system it is acceptable if the defendant chooses not to speak. After this he has free command over which witness and the order of the witness which should be summoned to the stand. After concluding statements from both the sides the jury is left to deliberate on the issue. Once they have reached a decision the jury merely states whether the verdict is guilty or not guilty without justifying its decision or giving any hint as to its thought process in doing so.

According to H.L.A Hart, writing in “The Concepts of Law” what challenges will a society which has only primary obligations face? According to Hart, what secondary obligations have the ability to correct the challenges he identified?

A. Uncertainty: Given that in primal society the only basis of law is based on the common perception and ideas of the society as whole, it is “uncertain” as to the actual rules or laws of such a society. Since there is no cohesive system as such there is ambiguity in the true nature and meanings of these laws. Even a simple case to the extensive of a fact cannot be clarified as it is unknown and just based on system of perceptions.

Static Nature: The static nature of laws in such a society is of paramount inconvenience to our argument. The very nature of this system makes it extremely difficult to change any laws/rules. Given that there’s no proof of existence or even the nature of law it’s very difficult task as the aim to somehow change the perceptions of the society as a whole.

Inefficiency: The cause of this major challenge also vests itself from the first cause of uncertainty. Due, to the uncertain character of these laws is very hard to judge whether a person actually committed a crime or not. This creates unnecessary chaos with each infraction and can lead to the formation of vendettas. On more problems that falls under this category is degree of punishment inflicted for a crime. Given that there’s no documentation of any procedures to follow in the given states.

HLA Hart proposes some solutions to the above mentioned challenges by proposing some secondary obligations which are broadly covered under three categories as well. Namely,

Rule of Recognition: The rule is mainly placed in order to counter the first challenge of uncertainty mentioned above. In this rule Hart proposes that there should be clear understanding of the rules of law in the minds of all people of the society as well as a clear procedural set up. He believes that all rules and laws should be recorded systematically either on paper or even be carved onto a monument but should be at last be accessible to the people of the society. Yet just writing a document or carving it is not enough legitimize it. It needs to be backed by majority of the population or even by a majority of the representatives of the family. This will help to solve the problems of uncertainty.

Rule of Change: Hart believes that just by stating the rule of recognition it brings about the basis of the rule of change. By creating an organized system that allows people to realize the short comings if the laws and brings about a will to change them. Thus, he believes that a procedure should be laid down that allows a person or a group of people to be able to change the law either by modifying old ones, creating new ones or just eliminating existing laws. This effectively creates a system that’s dynamic and can change according to society’s perception yet at the same time help minorities to be heard as well.

Rule of Adjudication: The best way to combat inefficacy according to Hart is by giving power to some people to be adjudicators in disputes. The criteria for selection of adjudicators as well as the due processes of adjudicating should be well defined by the way of rule of recognition. The role of these adjudicators in this system but these decisions has to be in accordance to the laws laid down. The correct procedure of punishment will also be carried out by these adjudicators so that all criminals accused to the same crime are not discriminated against in the severity of their punishments.

Thus, Hart addresses the major problems in primal society and brings about the emergence of a complex legal system which is lying down the fundamentals of the current system of law that we follow today.


First question

The judge from the fictional court in speluncean explorers who approach to judging. I agree with the most in Judge Tatting.

According to me his approach to judging is very neutral and balanced and that aspect is the one which struck a chord with me. He starts his arguments with a very logical overview of the arguments put forth by the Judge Foster. He critically examines each detail of Foster arguments analysis and then effectively discards his points by putting forth very well argued and reasons arguments. After he effectively discards Foster’s arguments he decides to purpose his own thesis and arguments about the case. He starts out with an objective overview of what the law states in the case and how relevant to this case. After an objective overview of the case he decides to step back take a moral or more appropriately a more humatarian view of problem reviewing the conditions the defendants were in and proceeding to build a case for the other side. He thus effectively carries out the most important function of the judge which is basically to build cases for both sides objectively and not according to those of counsels and then arguing the merits of both arguments to reach a final conclusion.

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