In adversarial system there are certain advantages, i. e. the parties to case has autonomy, free from direct judicial control and the passivity of the courts which decreases the element of bias and prejudice in decision making. The adversary system is more acceptable to parties because of freedom available to parties and better chance to present their case whether it is criminal or civil.
In adversary system even the parties with weaker case has strong hopes to win the case on the basis of skills of their lawyers and better presentation of evidence, strong arguments about the facts. In nature, the adversary system is not in rush to justice because then there are chances to miscarriage of justice and it not also creeping to justice because it will defeat the purpose of the justice. Adversary system provides better opportunity of coming to bottom of the truth by way of lack of unnecessary judicial intervention and most likely to result in a fair trial.
Burden of establishing their case beyond any shadow of doubt lies on parties and the job of the court is evaluate every thing presented before the court, this protects the credibility of the judicial system which very important part of the any judicial system and strengthens the confidence of litigants6. There are some real disadvantages as well, the adversary method encourage the "sporting" theory of justice.
Party with best lawyers are in the better position to win even from the start of the case they have edge on other side with out going into factual points, this is most likely to result in a rat race to engage best lawyers which may lead to financial problems for parties in the long run. In adversary system the is deemed to be playing a role of referee, this particular role prevents court to safe guard certain things which eventually can produce perverted kind of justice.
The court activism or passivity has to reasonable. In adversary system the decision making authority which observing the entire case from the beginning may have certain doubts or questions to 6Thibaut & Walker,procedural justice:a psychological Analysis; clarify but the inherent nature of the does not allow to go beyond certain limit which also may prevent the course of justice as it was held by the court in the case of Jones v National Coal Board7.
The merits of the inquisitorial system are mostly hidden in the fact that court control is going to cut the cost and wastage of time. Inquisitorial system is better for the society where the of litigation involving small sums is very high in volume. Best example of the inquisitorial system in practice in English legal system is Small claims courts, different kinds of tribunals, claims for industrial injury claims, are the best examples of the benefits of the continental inquisitorial system. It proves the advantages of the system.
People are seeking remedies from this legal system with out going to highly paid lawyer wasting their hard earned money and precious time. The inquisitorial system does not take its jury from ordinary class of people but it consists of experts, fully conversant in their domain of knowledge, which puts the each case in an expert hand and gets expert treatment. Again like adversary system the confidence of the parties to case is not shaken they will know that they are in safe hands even if some how their lawyer are lacking behind to court fix that imbalance.
The investigator manner of the courts in continental system to makes litigants think twice before they come to court and opens up the doors for Alternative disputes resolution, which has proved to very successful. Non- adjudicatory methods of resolving the disputes benefits in different respects, it lessens the burden on courts, government resources are well spent on other things apart form giving it away for legal aid, regarded as most amicable way to solve problem, less money and less time wasted.
So in nut shall I could be right to say that inquisitorial system 7Jones v National Coal Board provides a passage to ADR. Continental system in English law has already been incorporated to a certain degree since the Civil Procedure Code 1999 rules are amended. It has been laid down in the CPC rules that the courts can intervene and can control the proceedings with regard to what evidence to be presented and which not to be presented.
In the case of Mathews(1983) 78 Cr App Rep23, the court of appeal quash the conviction where the judge has asked 524 questions as compared to counsel who has only put 538 questions . the court of appeal was of the view that the number of judicial interventions and questions was excessive but they did not go so far as to divert counsel from his own line of questioning. The adversary system works on the basis that the court is not supposed to undertake its own investigation and should not go beyond the arguments presented be the parites8.
Conclusion It is quite often observed that in some jurisdictions trial judge has intevened or acted in order to find or ascertained a fact by questioning witnesses even in adversarial sytem. Matter of evidence admissability may also allow judge to behave like an enquirer than an arbiter of justice. So we can say that not either of the trial system are fully adversarial or inquisitorial,where ever the dispensation of the justice demand the help of any particular legal system can be sought with in resonable limits.
None of the system is absolute in its nature that's why the legal systems which follows the adversary methods some times has justfied the inquisitorial approach and vise versa. Being a 8 'The passive court and legal argument' Civil Justice Quarterly, 1988,p125 student of law I see that legal systems are transfermed by evolutionary growth and course of justice,one can not sit and draw the logistics of a legal system,it is only by continuous process which shapes it up.
It will be impossible to restrain one legal system to purely one set of method,any system should be adaptable to changing needs and circumstance with in the boundaries of certain restrains, because drastic deviation from one system to other or too much of amalgamation of the legal systems may give rise to futher legal complications and we all know that "not all cocktails are good". The complete transformation or the too much transformation may distort the real value and essence of any legal system which designed to server certain purposes and to meet certain objests.
What is good in france may not be good English system,when ever these system are formulated there are few other considerations in the mind of creating body,they always keep in sight the cultural and traditonal values and usages of that society other wise that system is not going to last long. No system can last against the popular will of a society. Best systems are always those which are the product of evolutionary growth over a sustained period of time.
English legal system is the best example of the evolutionary system over the periods of centurie, even after the prolonged period of time If some thinks that continuous process change has to end, it is not possible because the only is permanent in this world and that is change. All the changes are not pleasant, so it must be done in a very carefull manner because if justice is not done and not seen to done this may endanger the integrity of the society.
1. Slapper & Kelly,The English Legal System,7th edn 2004 2. John H. Farrar and Anthony M. Dugdale,Introduction to legal methods,3rd edn 1990 3. Thibaut & Walker,procedural justice:a psychological Anatysis.