Adversarial & Inquisitorial System Of Trial Legal Studies Essay

911 words - 4 pages

Inquisitorial vs Adversarial System of Law (Which do you think is most effective for justice in the community?)
Whilst the inquisitorial system is effective for justice, adversarial system of trial tends to be more effective to achieve justice in the community. Systems of trials can both differ in many ways, they have their advantages and disadvantages. In most common law countries such as United States of America, England, Wales as well as Australia, a system of justice called the adversarial system is used. This is different from the inquisitorial system that is used particularly in many European countries and continental jurisdictions. In an adversarial legal system, previous decisions made by higher Courts form a precedent which will bind the lower Courts. There are many reasons for which can both be effective for justice in our community. To fully understand the adversarial/inquisitorial system, it is best to look at its advantages and disadvantages.
An adversarial legal system brings cases to the court with two opposing sides presenting themselves before a neutral panel that can include a jury and a judge. Once both parties have argued their cases, the panel will then determine the facts and the appropriate actions to be taken, according to the legislation, (Caenegem, 2002, pp. 51,52). This system is also seen as fair and less prone to abuse, citizens who support this system often argue that it is fairer and less prone to abuse than other legal systems. For example in the Commonwealth Bank of Australia v Barker case [ (HCA 32, (2014) 253 CLR 169) ], Mr Barker was told that his position was to be made redundant and that if he was not re-deployed within the Bank his employment would be terminated. Mr Barker than took this to court and fought against the Commonwealth Bank. Commonwealth Bank tried to prove why they wanted Mr Barker re-deployed, and Mr Barker on the other hand tried to prove himself innocent. Later on, he was awarded a well settled job according to his University degree. This case was argued by two opposing sides who had the primary responsibility for finding and presenting facts. The case was decided by a judge or a jury who did not investigate the facts but acted like umpires. As shown Mr Barker had moderately been treated by the judge/jury and was less prone to abuse. Although the adversarial system has its advantages, it also has its disadvantages, the adversarial system of trial used in court may lead to injustice. The adversarial litigation approach is at times criticized for setting up a system where sides on a case are required to contest with each other. This is believed by critics to encourage deception and other questionable legal tactics, as the objective is to win at all costs, instead of evaluat...


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