Understanding their differences and consequences
While lawyers, with few exceptions, are necessarily trained in one specific legal tradition (mainly civil law versus common law), other people faced with contracts are not obliged – and are better off – to choose not to specialize in a single tradition. This post, explaining the difference between an inquisitorial and an adversarial procedure, is helpful to understand the two traditions. More posts on these differences will be published on this blog. Please stay tuned!
International Contract Managers may be confronted with civil law or common law contracts depending on the law applicable to their contracts and the countries in which they are active.
Similarly, persons involved in alternative dispute resolution (arbitrators and dispute adjudicators) may be involved in disputes relating to both types of contracts and laws. The ADR processes are rather based on an adversarial model because arbitrators cannot go beyond the request and arguments of the parties.
In order to fully understand the difference between an inquisitorial model and an adversarial model, I share with you the excellent article below:
Adversarial procedure – Inquisitorial procedure: two models for criminal justice
Traditionally, there are two procedural and institutional models for understanding the organization of criminal courts and the place they give to the various actors in the repressive judicial scene: the accusatory model and the inquisitorial model.
The adversarial procedure
The adversarial model emphasizes the role of the parties. The trial is conceived as a contradictory, public and largely oral confrontation between the prosecution and the defence. If each party is on an equal footing with its opponent, each party must also prove the facts in support of its case. The judge’s power therefore consists in arbitrating, rather than investigating: On the one hand, it is a question of ensuring the fairness of the trial. On the other hand, of dividing the litigants according to their claims, arguments and evidence. Within the adversarial system, there is little procedural and institutional difference between civil justice and criminal justice: in both cases, it is a matter of the judge – whose role can easily be performed by a jury – arbitrating between conflicting interests.
The inquisitorial procedure
The inquisitorial model, on the contrary, accentuates the difference between criminal justice and civil justice. For the first, it favours the overhanging position of a judge representing the general interest and responsible for directing the investigation in order to ensure that the truth prevails. In this system, the judge is a professional magistrate with significant powers to conduct investigations for and against either party. The parties are therefore not directly obliged to conduct the investigation in support of their claims. This model bases its legitimacy on the idea that criminal justice is not limited to arbitrating a dispute between litigants but that it is of interest to society itself. As a result, the inquisitorial procedure is generally written, often secret and rather non-adversarial: since the judge himself is responsible for producing judicial truth, the place given to the parties is naturally reduced.
Origins of inquisitorial and adversarial procedure
Historically, from Greek antiquity to the Middle Ages, the adversarial system was mainly widespread in Europe. However, there were obvious shortcomings in this procedure, mainly due to its ineffectiveness due to the lack of preparation of trials. As a result, it was gradually replaced in Europe, from the 13th century onwards and under the influence of ecclesiastical courts, by a more inquisitorial model. In France, the monarchy enshrined the principles of the law in the Royal Ordinances on Criminal Procedure of 1539 and 1670. The dominant inquisitorial nature of this criminal procedure was confirmed in 1808 with the adoption of the Code of Criminal Investigation. On the other hand, in Anglo-Saxon countries such as Great Britain and the United States, the adversarial system remains largely dominant.
Differences between inquisitorial and adversarial and conclusions
Through their differences, these two judicial models form the basis of two very different conceptions of the role of repressive justice. The adversarial model thus proposes a procedural definition of justice, which considers as fair what has been contradictorily discussed and decided. On the other hand, the inquisitorial system propagates a more substantial vision of justice, which refers to an ideal and presupposes the intervention of a third party to make justice triumph. The neutral conception of justice carried by the accusatory is therefore opposed to the necessary active commitment to justice promoted by the inquisitorium. In short, inquisitorial justice may be more effective, but sometimes more discretionary than adversarial justice that is more respectful of the rights of the parties.
While our judicial systems come from very different historical and philosophical traditions, we must not caricature the opposition between the Anglo-Saxon and European models. French criminal justice, for example, leaves an important place to the intervention of the parties in the investigation. As for the hearing, it is in France as in the United States entirely oral, public and contradictory. On the other hand, Britain has increased the role of the magistrates responsible for conducting judicial inquiries, grouped together since 1986 in a Crown Prosecution Service, in order to make its justice system more effective. In fact, the different criminal justice systems in Europe seem to be gradually harmonising around a European standard favouring, within each national tradition, a justice that is both contradictory and effective.
|Importance of the judge’s role
|Importance of the role of the parties
|Weakly contradictory procedure
|Completely contradictory procedure
|Secret of the investigation
|Publicity of the trial
|Substantive concept of justice
|Procedural concept of justice
|Continental Europe from the 13th century onwards
|Antiquity, the Early Middle Ages and Anglo-Saxon countries
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