Has the time come for the common law to be scrapped?

The investigative [inquisitorial] system now affects more than 1.6 billion in European countries, their former colonies, and other countries, including Japan. It requires more trained judges than the adversary system, and fewer lawyers. In criminal cases, 99 of 100 accused are actually guilty. The investigative system convicts 95; the adversary system fewer than 50, and at a higher cost. A civil hearing in the investigative system takes a total of about a day. In the adversary system, it can take weeks, months or years.

It is beyond the scope of my expertise to look at this in detail, but I do wonder where the statistics are from and how the author ascertained who was “guilty” out of the 100 accused …

In conclusion, yes, the adversarial system has definite drawbacks. But can a more inquisitorial mode fix those drawbacks?

3. Truth and the common law

This is the part of the article which I think has least credence. I see both the adversarial and inquisitorial systems as looking for the truth; they just come at it from different directions. Yes, the common law is more process focused, but ultimately, like the civil law, it aims to deliver justice. It is justice which is really important.

I believe that many lawyers do think about justice and fair outcomes. Further, I also believe that many lawyers know the origins of the law. Certainly, I always teach the history of the law in Equity and Property because I think it’s essential to an understanding of how the law operates now and some of the bizarre quirks it exhibits. I also think that most judges and judicial officers are concerned to deliver just outcomes.

4. Is the inquisitorial system really better?

I would question the assumption by the author of the article that the introduction of an inquisitorial system in Australia is a “quick fix” to all the problems of the law. Here, I have drawn heavily on Chapter 1.3 (PDF 178KB) of the WA Law Reform Commission’s Review of the criminal and civil justice system in Western Australia (No. 92, 1999). The review explores the advantages and disadvantages of the adversarial system in criminal proceedings. Have a read of it in detail if you are interested in the topic. At pages 86 - 87, the Review notes that both the adversarial and inquisitorial systems have similar concerns and problems, namely:

• Increased demand on resources with less availability.
• The problem of delay.
• Public criticism of systemic failings.
• Concerns about victims of crime.

This just shows that no system is perfect and that the same problems arise over and over again. Indeed, Italy scrapped its inquisitorial system and replaced it with an adversarial system in 1988, although the system has largely reverted back to its old form.

The report concludes that the adversarial system does have some advantages over the inquisitorial system, including a greater emphasis on the presumption of innocence and the right to silence of the offender. Due process can produce justice.

And in some respects, the problems of the law seem intrinsic, regardless of which system is implemented.

5. Conclusion

I would be wary of accepting the premises of this article wholesale. Yes, there are definite problems with the legal system, and yes, I would like to see those problems reformed to the extent possible. I think useful things can be learned from the inquisitorial system, and perhaps some aspects should be adopted here. But I do not think that the inquisitorial system is the panacea to all the law’s ills.