Converging Adversarial and Inquisitorial Traditions

For many academics, the principal difference between the adversarial and inquisitorial systems lies in who—the judge or the parties—gets to control the process .¹ In particular, differences relate to who initiates the action, who gathers the evidence, and who controls the sequence and nature of the proceedings. The locus of control over the process comes from diverging conceptions of justice. The adversarial tradition starts with the assumption that the parties are equals and, therefore, that it is their place to bring out the truth, resulting in judges who are reluctant to intervene. The inquisitorial tradition, in contrast, rests on a State-centred conception of justice, where it is the responsibility of the State to “recreate what the parties do not say”² and to counter power imbalances.

Academics have long debated the merits of the adversarial and inquisitorial systems, with inconclusive results. On the one hand, some researchers have shown that civil justice in either system can lead to similar results with regard to fact-finding and efficiency . In a multi-year series of economic experiments, Block et al. found that no tradition has a monopoly over truth or efficiency, but rather that the relative fact-finding efficiency of the two systems (revelation of “hidden” facts and “accuracy” of decision) depends significantly upon the information structure of a case.³ Efficiency and accuracy of decisions depend mostly on how information (and, as a proxy for information, evidence) is distributed. Under a “private” information structure, that is, where one party has private, discrediting information, inquisitorial procedure is relatively more efficient, whereas under a “correlated” information structure, that is, where both parties have access to the information, adversarial procedure is relatively more efficient.

On the other hand, some researchers have argued that the adversarial system is superior. This was the view of a 1998 study focusing on efficiency in arbitration .⁴ The determining factor in favour of adversarial procedure was the ability it gave the arbitrator to properly allocate the burden of proof and to extract maximal informational content from seemingly inconclusive results. This ability stemmed from “the discretion of the arbitrator to exercise the appropriate degree of skepticism and to react in a sophisticated way to the self-interested reporting strategies of the two opposing parties.”⁵ Legal philosopher Lon Fuller also put forward a thorough plea in favour of the adversarial system, based on the underlying assumption that the goals of the judicial process are coincident with fully unfolded arguments by the parties. He considered accuracy best served through zealous partisanship. Fuller underlined the clear-cut distinction between the role of the advocates and that of the judge. The adversarial procedure requires partisan zeal from the advocates, while the judge can gauge the full force of an argument impartially because the argument on both sides has been presented to him in a partial way.⁶ Fuller understood the compromise of the inquisitorial procedure as one involving pretrial efficiency but a somewhat pre-framed trial. The inquisitorial tradition therefore bears the risk, in the absence of proper checks and balances, that early conclusions made by the judge may be replicated throughout the trial, while the adversarial system offers broader possibilities for unpredictable events to happen.⁷

That said, shortcomings of the adversarial system have also been recognized. In an early study of popular dissatisfaction with the US legal system, Roscoe Pound identified, among many other general causes, the “common law doctrine of contentious procedure, which turns litigation into a game” and “gives a false notion of the purpose and end of law.”⁸ More recently, David Sklansky has argued that features leading to the presumption that adversarial procedure is superior, particularly for criminal purposes, are not actually effective in practice. For example, factors like the use of lay jurors and vigorous, partisan advocacy by the defence have been considered as important distinguishing features in the common law. Yet, in the US adversarial criminal system, most criminal defendants do not “confront their accusers in court, or have their guilt assessed by a jury,” because most cases are resolved through plea-bargaining.⁹ Public defenders and court-appointed counsel, who represent a majority of criminal defendants in the United States, are so “chronically and drastically underfunded that there is strong reason to doubt the vigour and effectiveness of the advocacy they can provide,” whether in plea-bargaining or at trial.¹⁰

In light of the inconclusiveness of the literature, instead of focusing on whether the adversarial or inquisitorial approach is “better” because of their apparent differences, we suggest looking at the values shared between the two systems and how aspects of one system can be replicated in the other to facilitate access to justice. Sklansky has argued against the idea that the adversarial system is born out of a rejection of the inquisitorial system. Doubting the existence of an organic integrity inherent to the adversarial system, Sklansky suggests that there are only instrumental reasons why one would value the adversarial system.¹¹ These instrumental reasons stem from underlying values that are actually shared with the inquisitorial system : fairness, accuracy, humanity, and coherence with liberal democratic values.

An examination of the failures of the adversarial approach leads generally to the suggestion that the managerial powers of the judge should be increased. In other words, judges should be given greater powers to dictate measures relating to case management, dispute timetables, and discovery procedures, among other issues.²⁹

This suggestion raises questions about how managerial judging can be justified in adversarial systems, in light of the continued dichotomization of the adversarial and inquisitorial traditions. J. A. Jolowicz notes that the adversarial system’s two core, overarching procedural values are those of empowering the parties to define the subject matter of the dispute and of ensuring that these same parties decide what information the judge can use as a basis for his or her decision.³⁰ Those who advocate managerial judging in the adversarial system are thus faced with tough questions: Can procedural rules equipping the judge with greater management powers fit into the adversarial model? Does such an increase in management powers turn the adversarial model into an inquisitorial one? Or, alternatively, is it just a form of convergence or harmonization between two types of justice system?

An important part of the literature on civil procedure has focused primarily on proving the superiority of one legal tradition, adversarial or inquisitorial, over the other. This is unfortunate, and we argue that differences between adversarial and inquisitorial procedural laws should be analyzed by reference to the broader values that civil justice in general intends to promote. Despite many particular differences, the same underlying values are present in both systems, and analogous conceptions of justice emerge.

Pure adversarial or inquisitorial systems do not really exist. As Jolowicz notes, we understand that they are two “ideal types”³¹ at the extremes of an analytical spectrum, with actual justice systems sitting somewhere in between.³² Kessler argues that the adversarial and inquisitorial models do not correspond to any actual system because all legal systems carry elements of both traditions. Indeed, historically, Anglo-American courts of equity drew on the same Roman-canon law tradition that underlies continental European legal systems; they have been inquisitorial for centuries in many key respects. For example, historically, the French practice of having a state official administering witness testimonials away from the litigating parties was also present in the English courts of equity before their merger with common law courts.³³ Nineteenth-century reforms of European procedure drew on what Sklansky labels an “admiration for the fairness and transparency of common law criminal trials” that stretches back to Voltaire. European jurisdictions attempted to transform medieval “inquisitorial” procedure into what should be called a “mixed system”.³⁴ Moreover, regardless of particular traditions, courts’ need for at least a minimal ability to act on their own motion appears to be universally acknowledged.³⁵

Despite procedural differences, some points of convergence appear in cross-tradition studies, especially if one momentarily abandons the boundary between pretrial and trial stages. The originally co-operative design of the discovery process resembles the way in which inquisitorial trials are conducted. The movement in favour of empowering judges to intervene during adversarial examinations is also common to the inquisitorial practice. Overall, examples of convergence in the form of transnational principles and rules of civil procedure do overcome the cross-tradition divide.