Professor John Langbein talks about adversarial and non-adversarial systems of justice in ‘Why Adversary Justice fails’.
An adversarial system of justice is one in which two parties contest to arrive at a conclusion decided by the judge or jury, based on the arguments presented by the parties, on behalf of their clients. The leading examples of this system would be England, United States of America, and India. It should be noted that the adversarial system has originated from English imperialism and the subsequent colonialism in India and America has led to these states adopting such a system, although it is argued that the system’s prevalence in India and America are only due to English rule. The argument further puts forward that the system is a ‘market flop’ and no country or state free to choose their legal system would adopt an adversary system of justice.
A non-adversarial system of justice, as referred to by Professor Langbein, is one in which the judge carries out the fact-finding of the case, with the lawyers acting as guides to him. Judges in a non-adversarial system are professional and can begin their careers as judges. The evidence Act does not apply to this system. Every judgment in this system follows reasoning as to the judgment. An example of non-adversarial system of justice would be the European union-Germany, Switzerland, and other Scandinavian countries being non-adversaries in their legal system.
In the non-adversarial system, determining whether a person accused of murder committed the crime or not, an approach wholly different from the adversarial system is required. To begin with, the judge is handed the file of facts from the police. He then, along with his assistants, starts ascertaining the facts of the case. In this process, he also determines which witnesses are important to the case and try to construct all the facts as they were. This, although a simple sounding process, can be quite difficult given the frailties of human recollection, untrue information etc. Although this fact finding by the judge and his team may prove to be difficult, it is central to the outcome and ascertaining of the case. In the process of fact finding, all the relevant past convictions and past conduct evidence are taken into view and the lawyers don’t have any role to play in the fact finding. This, some argue, keeps the facts pure and true and is hence one of the major merits of the said legal system. As the fact finding and research of the judge and his team conclude, the case begins in the courtroom. In a non-adversarial system, the accused gets the first stand to defend himself. The reasons given for this are many: It gives the court the accused’s version of the case. What this does is that in the first stage of the case itself, the court knows exactly on which counts the accused accepts the charge and denies it. It removes the need for unending questioning of the accused to get the relevant pieces of information out of him. This also gives the accused a better stand, if he has a strong defense. The accused may refuse to take a stand and speak, and this although permitted, is always taken as a serious deterrent by the court. This thought flows from the fact that an innocent person accused of a crime would always want to speak before the judge and prove his innocence. As the case proceeds, the lawyers for the plaintiff and the defendant are by all means present and involved in the case. The judge poses the questions to the witnesses, but the lawyers have the right to request the judge to prod over an issue more, or request the judge to carefully look into some factor of the case. But this right is limited to the extent of requesting the judge. The witnesses the accused wants called are duly called, but not in the sequence he wishes. The judge calls all the witnesses the accused asks for, but they depose according to the judges’ discretion. The lawyers have no role in ascertaining which witness to call and in what order. Another notable feature of this system is that nonparty witnesses are strictly kept away from any interactions with either party. This is followed strictly in the non-adversarial system and a violation is taken as an ethical breach of the system. This prevents any ‘coaching’ or preparing of the witnesses to the advantage of either plaintiff or defendant. When the judge has looked into all necessary facts and cross examined all the relevant witnesses, along with the lawyers’ satisfaction, the judge proceeds to give his verdict. One of the major, if not the most meritorious feature of the non-adversarial system in its determination of a criminal or civil case, is that a judge always has to give a reason for his verdict. The judge puts forward his reasoning in the whole case and then determines whether the accused is guilty or not.
The adversarial system, on the other hand determines cases in a very different manner. In this system, the lawyers for the plaintiff and the defendant take the facts from the police and start working to find more facts about the case. Ideally, the lawyers should find all the relevant facts to the case, immaterial to whether it would benefit his client or not. In most of reality, we find that the lawyers twist and distort the facts of the case to the tune of their client’s benefit, and proceed with the case. In this system, the witnesses can be first interviewed by the lawyers, and they play a role in determining who the witnesses shall be. In an adversarial system, the accused does not get a chance to speak in case of a criminal case, murder being so. The judge listens to both arguments of the parties’ lawyers, which usually conform to very partisan arguments. The usually already prepared witnesses are cross examined by the lawyers in the way they find suitable. This cross examination, it is seen, a lot of times proves to be useless in terms of finding the truth. After hearing both parties, the judge decides on the facts given by the lawyers and witnesses, and delivers the verdict. It should be noted that in this system, the judge reserves his judgment for the end of the case, and he has no obligation or duty to provide the court with reasons as to his decision. In the case of a jury deciding the case, the jury is also chosen somewhat by the lawyers, thus at times removing the possibility of proper and able jury. The jury is not allowed to ask questions in court apart from asking the judge, and is removed from the court when an important piece of evidence comes up. If the accused does not wish to go to trial, he may confess to the authorities and get a discounted term. This is called ‘plea-bargaining’ and is a feature present in the adversarial system.
This is how a murder case would be determined in a non-adversarial system and an adversarial system. The two systems are in a contrast and though on first glance, one system may look more meritorious than the other, both have their own flaws.
3 In ‘’The Concept of Law’’, H.L.A Hart starts with the basic idea of a primitive society. He says that a society which has no law or system of law, there is a simpler regulatory system called the primary rules of obligation. The social structure in this society would be one in which certain obligations have to be met by the group which conforms to these rules, as well as certain acts termed illegal or condemned. He says that for a society of human beings to stay and coexist in a stable way, this society has to
The challenges are as follows:
The problem of uncertainty: In a society with primary obligations, the absence of a proper legal system leads us to know that there won’t be any list of laws, or legislations. This makes it extremely difficult to ascertain whether a certain law is a law or not. In the absence of some written text or someone authorized to answer such questions, debates would always rise as to what the laws are.
The static nature of the rules: In the society with primary obligations, there is no way of changing old laws, or introducing new ones. In such a society, the only way of change would be through the slow process of growth. In this process, things would first be optional, and then obligatory, and finally compulsory. And in the reverse, things which were initially condemned would slowly become tolerated and then eventually pass unnoticed. The static nature can also be viewed in more drastic or extreme way, although this has not been seen in history practically. In this more extreme defect of the static nature, the individual has no way of changing the duties and service that he may be obliged to perform by society. Some of these duties would benefit the person, and these duties when done by others may benefit them as well. In the primary obligation society, the static nature does not allow this transfer of benefits which accrue from performance to other persons, or to transfer the benefit giving duties to other persons.
The problem of inefficiency: In this society, in the absence of the system of laws, it becomes very difficult to ascertain whether a law has been broken or not. This leads to major disputes, and these disputes always surface. A further problem arises as to the penalty or punishment, after the fact of violation has been determined. In the absence of proper authorities to carry out the use of force and violence for punishment, there would be an immense waste of time in catching the violator, as the responsibility to punish the violator would be on the victim or the group at large. This would also lead to gruesome vendettas and free violence.
The solutions :
The rule of recognition: In response to the problem of uncertainty, the secondary obligation which solves this problem is the rule of recognition. This rule says that there should be a list of the rules or an official authorized to be a source of information on the rules. The author takes from history the simpler instances of writing down the rules, on paper and on public monuments. This solves the problem of uncertainty and people can referto the list for any clarifications. The importance of this rule of recognition lies not totally in the fact that the laws are put down for referring to, but the fact that society accepts the list of laws as authoritative and binding on them. Secondary rules of obligation may be simple or complex. In a more complex legal society, we see that people not only refer to and acknowledge the list of laws, but to other characteristics which relate to the laws. For eg., legislations, precedents, judgments, and customs. These characteristic may be one or many. In case of more than one, a rank or order of superiority is made. For eg., a judgment is superior to a custom. In this way, secondary rules of obligation, being a different level to the primary rules, solves the problem of uncertainty.
The rule of change: The problem of the static nature of the primary obligatory society is solved by the rule of change. This rule gives the authority to change old laws and introduce new ones. This authority is given to an individual or a body of persons. It should be noted that for the rule of change to apply, there has to usually be a list of the laws, which is referring back to the rule of recognition. It is known that although a list may be referred to for changing the laws and affecting them, sometimes an official copy of the change or enactment will do. If the society is so simple that the only of source of law is legislation, then the rule of recognition would simply specify the enactment as the evidence of legitimacy of the rules or laws.
The rule of Adjudication: For the third problem of the society with primary rules of obligation, the problem is solved by the rule of adjudication. This rule gives the authority to an individual or a body of individuals to ascertain whether a law has been violated. Like the other two secondary rules, this rule may also be implemented in various many degrees. In a simpler way, the authority is given to someone who carries out this duty. In a more complex system, a judge may be given the legal duty to adjudicate and the rule may even specify the process to be followed. The rule may limit the authority or give limitless authority. The problem of giving out punishments and penalties to violators, as time passes after the implementation of the rule of adjudication, the society may decide to further centralize the social pressure and authorize proper bodies for the punishments and penalties of violators, on the directions of a judge, after the fact of violation has been ascertained. This is what is called the official sanctions of the state.
The idea of including regular citizens in the process of determining whether a criminal defendant is guilty or not is strongly opposed by me. My points are not from the ‘’Duncan v. Louisiana’’, but some of the points refer to the text ‘’Why Adversary Justice Fails’’, and the rest are my thoughts on the topic.
Being in a democracy, and the largest democracy in the world, I am aware of the merits of the democratic processes but the reservations to including regular citizens in the legal system are rooted in this form of democracy. When it comes to voting, we see that everyone in our country votes, regardless of their literacy or illiteracy. This at times leads to the problem of herd mentality in illiterate parts of our population. The problem basically embodies the fact that if people who are illiterate vote, they may vote for the wrong person or party and this further leads to the wrong government being elected and similar problems. This can be linked to the question of whether to include regular citizens in the legal system. If a regular citizen, strict to the term, is introduced in the legal system to ascertain whether a criminal defendant is guilty, lawyers would heavily influence the citizens, since the citizens are not rehearsed in the law. This bias would invariably mean that defendants hiring more influential lawyers would lead to victory. This point is touched by Professor Langbein when he talks of the adversarial system being one in which only the wealthy would usually win the case. Take for example the case of Sanjay Dutt in the TADA court, or the case of Salman Khan and the black-buck. In both these cases, major Bollywood celebrities were accused in criminal cases, one involving terrorism and the other involving illegal animal trafficking. In these cases, if a regular citizen is told to determine whether the accused is guilty or not, an unimaginable amount of partiality and bias comes in. This is essentially because a person not knowing the concepts of equality of justice and the demerit of partiality, would be overwhelmed at the prospect of dealing with a celebrity’s case and would not accuse him of the charges. This problem of partiality and bias can also be viewed in another way. Countries having a patriarchal society, or gender inequality issues, or communal issues between two religious factions, or political disputes, would all be facing a huge problem of having very wrong verdicts delivered due to these various social issues which plague some societies and which have to be looked into before deciding whether to allow a regular citizen to ascertain whether a defendant is guilty or not.