Take the Good with the Bad

Most of my classmates seem to think that if they could just get their way the country would somehow be better. I completely disagree with this thinking. The cold hard reality of life is that there   will never be under  any circumstances a perfect judicial system, i would take that a step further and say that there will never even be a much improved one. 

People often complain that we have an adversarial judicial system that pits the Lawyers against each other and the judge to mitigate the situation. Some favor a “fact finding” approach where both sides seek the truth. the obvious flaw of such a system is that people get tortured. I.E. the spanish inquisition (not the monty python version)

http://history.howstuffworks.com/historical-figures/spanish-inquisition.htm

Here is a brief history of that should you be interested. 

Secondly, in a fact finding mission it could be incredibly easy to throw out cases brought against your “Friends”, such as fraud and embezzlement cases. Or it could go the other way and people could trump up charges and ram it through while subverting a trial by jury altogether. 

Another idea throw out there is mimicking French courts and having a tribunal of sorts decide if your case merits a hearing or not. No offense to the french but when have they ever had a good idea? Seriously, this would easily lead to cases being thrown out instead of being mitigated, or cases being unnecessarily sent to trial which would be very costly and time consuming. 

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I will admit things can get difficult in the adversarial system, especially in cases of rape where the lawyer knows the truth but cannot say it due to client attorney privilege. Or perhaps if the defense is trying to tear down the credibility of the victim. But one should not ignore that the common law has been through the grinder and is  “… is rooted in centuries of English history” where one case builds upon another to account for the ever changing conditions of the times. Our legal system is equipped to handle any number of complex situations and this malleability is what has allowed it to work for so long. Changing it would only lead to more “Red tape” and complicated procedures that would lead to no more efficiency or safety for our citizens.  

 

http://www.radford.edu/~junnever/law/commonlaw.htm

Here is a brief history lesson on common law  if you are interested. Regardless, please feel free to critique me if you feel that another system would garner better results. 🙂 

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4 Responses to Take the Good with the Bad

  1. aussielandmn says:

    I want to start out by saying that I much prefer the adversarial system of law to the inquisitorial. However, I will admit that is probably because I plan to be a Barrister myself and I simply enjoy arguing. That being said though I found that I disagreed with you on a few points.

    Firstly I would like to apologize. Usually I critique an argument in the order that it was made but this statement was too tempting for me. “No offense to the French but when have they ever had a good idea?” Really? You’re going to say that in a semi-academic debate, I say semi because it’s open for those outside of a university environment to read. A blatantly racist comment and one that is clearly not grounded in fact. The French have contributed a lot to the world and have had plenty of “good ideas.” The metric system which is used in the sciences and across the world to start off with. However, that’s an easy one, so how about commonly used French words in the English language such as rendezvous, repartee, hospital or resume. Or if philosophy is your cup of tea the writings of Voltaire and Descartes are beyond value. I certainly now know that I am. As someone who has an undying passion for history, the period between 1789-1815 is especially important to me with the creation of one of the first secular societies, the Napoleonic civil code which is more or less around today, in addition to the development of the military arts which are still taught in modern war colleges such as Sandhurst or Westpoint. The words Division and Corps are French in origin as well as their use in war. Or if you prefer literature, there is Jules Verne or Victor Hugo. I am personally much more of an Alexander Dumas man myself. “Now I’d like someone to tell me there is no drama in real life!” To get to my main point though frankly I’m just tired with stupid comments made against the French. It just shows that one really does not have an understanding of their culture, history or achievements. And maybe one more comment mostly because I can’t resist, you do know that without French money, equipment, military training, support, ships or troops the United States would not have been able to gain independence in 1783? So in turn you’re effectively saying that the American Independence was a bad idea.

    Secondly, as for your comments of the inquisitorial system of law leading to potential torture I would agree if this was a few hundred years ago, but not now. Least not anymore then the Common Law system did. One of the things about any legal system is that unless it is a civil or equity case, it is fundamentally the state against the individual. Thus if the state is willing to use torture to gain information from the individual, then they will do so. The only key difference in this fact between the Adversarial and Inquisitional system. In the Adversarial it would be traditionally done by the police while in the Inquisitional system the judge and the court would taking the leading role in this respect. In addition, you hooked your argument on the Spanish Inquisition, something that occurred in one ‘country’ out of the many that use the Inquisitional system and ended over one hundred and fifty years. In addition, it only occurred after relatively long intervals of not using it and was only created because of the political, religious and cultural complexities of Spain. To follow that logic should we similarly avoid medicine because one hundred and fifty years most doctors were considered no better than butchers?

    Thirdly as to your point of case load and cost. All legal systems are costly, expensive to run and have waste. In England and Wales, two billion pounds a year are spent on legal aid alone. That does not including the actually cost of running courts, hiring judges and magistrates and everything that goes into running a legal service. In addition, while the Adversarial System has higher rate of charging someone, the Inquisitional System has a higher conviction rate.

    Fourthly, as for history, while I agree with you that the English Common Law system has certainly gone through the grinder, so as the Civil Law system. In fact it goes back even further tracing its heritage back to the Justinian Code, Church law and Republican Roman Law.

    While I much prefer the English Common Law System overall, I do see the merits of the Civil legal system and its inquisitional style therefore it should not be completely dismissed. In addition, making fun of the French in this post was unwarranted, and unnecessary.

  2. ryrooney says:

    So you think times and society are changing but you do not think changing the legal system to keep up with the ever changing society is a good idea? Shouldn’t the legal system be changed and tweaked a bit to adhere to the changing times?

    • I think you are missing my point. The common Law system has enough flexibility that it can adapt to the changing circumstances of the times. For instance cyber crime could never have been predicted, but it is still punishable by law. Our current system can accommodate any new crimes by judges adding on new precedents when new situations arise.

      The alternative has obvious drawbacks. And to date no hybrid system has arisen to my knowledge that can balance efficiency and accuracy. If such a thing arises, i would be all ears.

  3. roblewis92 says:

    I have a few points of disagreement.

    “the obvious flaw of such a system is that people get tortured. ”

    With this statement, you are implying the proposition “All inquisitorial systems are legal systems that torture.” Clearly this isn’t the case in the democracies where the inquisitorial system is implemented. At most you can say, “Some inquisitorial systems are legal systems that torture” but once you torture isn’t essential to the system, the critique of inquisitorial systems becomes moot.

    “Secondly, in a fact finding mission it could be incredibly easy to throw out cases brought against your “Friends”, such as fraud and embezzlement cases.”

    It’s obvious that both the adversarial system and inquisitorial system will have judges who will find ways to throw out cases against their “Friends”. I don’t see how this is a problem found only in the inquisitorial system.

    “But one should not ignore that the common law has been through the grinder and is ”… is rooted in centuries of English history” where one case builds upon another to account for the ever changing conditions of the times. ”

    The common law system of changing with the times seems beneficial when it comes to certain issues but it cannot seem to account for immutable human rights. It seems that civil law systems are better able to protect human rights as they codify them by legislation with the consent of the governed. Common law systems can overrule “old” human rights and create new “human rights” by using non-elected courts and precedent alone.

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