, Clément Camion2, Karine Bates3, Siena Anstis4, Catherine Piché5, Mariko Khan6 and Emily Grant7
Faculty of Law, McGill University, Montréal, Québec, Canada
Montréal, Québec, Canada
Département d’anthropologie, Université de Montréal, Montréal, Québec, Canada
Toronto, Ontario, Canada
Faculté de droit, Université de Montréal, Montréal, Québec, Canada
Sheahan and Partners, Westmount, Québec, Canada
Montréal, Québec, Canada
Another issue affecting access to justice reform is the categorization of civil justice into one of two systems: adversarial system s, typically associated with common law jurisdictions, and inquisitorial systems, typically associated with civilian jurisdictions . These systems tend to favour different procedural arrangements. The adversarial system allows for greater party participation and control over the proceedings, while the judge has more power in the inquisitorial system . A desire to retain these distinctions is one factor hindering effective civil justice reform , and it is important that access to justice proponents avoid essentialism when distinguishing these two forms of civil justice. Indeed, the actual distinctions between the two systems are slowly eroding, and advocates of reform in each system could benefit from looking at what is working, or not working, in the other.
The 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.
How Legal Traditions Construe the “Truth”
How Important Is the Truth to Each Tradition?
Tension exists between the importance of truth seeking to the legitimacy of both adversarial and inquisitorial systems, on the one hand, and the impossibility of ascertaining absolute truth in either system, on the other. In reconciling this tension, the adversarial system is generally viewed as more willing to compromise truth seeking in favour of other values. Jacqueline Hodgson , in a comparative study of both traditions, describes how “truth” is construed by the adversarial, common law tradition: “[L]egal truth is seen as something which is contingent, existing not so much as an objective absolute, but as the most plausible or likely account, established after elimination of doubt.” Comparatively, “[w]ithin the state-centered inquisitorial system, an objective truth is assumed to exist and its discovery is paramount. . . . [A] central enquiry is conducted by a juge or magistrat, invested with wide powers and constrained by few rules of evidence.”12
However approximate judicial truth may be, ascertaining the truth of a case remains central to a judicial system’s legitimacy . As Ray Finkelstein writes:
[E]ven if the courts cannot realize an absolute truth, the public still expects the courts to try. Whether futile or not, the search for truth is central to the court’s legitimacy in the public’s eye. The public’s confidence in the courts’ ability to find an objective truth may or may not be philosophically sound, but in the end that does not really matter — the courts must be pragmatic and search for the best approximation of the truth.13
Similarly, Keith Findley argues that trials are about truth seeking, but he also writes that trials in themselves will always be an imperfect means of ascertaining truth.14 He suggests that making truth a low priority is an issue peculiar to the adversarial system; by placing control over the facts in the hands of opposing parties, even in criminal matters, the adversarial system seeks dispute resolution rather than truth. Truth seeking is the primary value in the inquisitorial system.15
Discovery and Truth Seeking
Discovery has been identified as a major problem in the adversarial system , interfering with the ability of courts to ascertain the truth by limiting and distorting the flow of information where such interference is in the interest of a party. In 1978, Wayne Brazil argued that the adversarial system rated truth “too low”. He analyzed the flaws of adversarial procedure, singling out the discovery process. Though the purpose of discovery rests on “the unarticulated premise . . . that the process of gathering, organizing, and sharing evidentiary information should take place in an essentially nonadversarial context”16—and on inducing settlement rather than trial—most of the institutional pressures that have operated to make attorneys partisan advocates have remained intact in discovery.17
In this light, discovery has the potential to become disconnected from truth seeking. Brazil writes that discovery is “more than occasionally used as a costly instrument of warfare . . . [leading to] frequent . . . complaints that discovery is so costly that it is beyond reach for some parties and actually favours wealthy litigants.”18 This view is confirmed by Amalia Kessler , who identifies numerous flaws in the adversarial system: its failure to facilitate truthful fact-finding, its waste of public and private resources, and the fact that it places too much power in the hands of the parties and their lawyers, thereby raising the costs of litigation and undermining access to justice .19
Where discovery is used by a party to inhibit rather than promote the flow of information to the court, Brazil speaks of two costs. First, discovery does not serve truth ascertainment, but rather leaves the achievement of a just result to chance. Second, the amount of time currently committed by lawyers to strategizing about how to structure and manipulate the flow of evidence substantially increases the cost of dispute resolution—and we can imagine that the amount of time needed by judges to try to reconstruct a coherent understanding of each case is also increased.20
A possible solution to the failure of discovery would be to direct lawyers’ ethical obligations toward the court rather than toward the client in the early stages of dispute resolution.21 Borrowing from the inquisitorial tradition, the judge could also be empowered to request the production of documents and to ask questions whenever he or she is unsatisfied with the quality or comprehensiveness of the questions propounded by counsel,22 as is practised in international arbitration.23
Witness Examinations and Truth
The cross-examination procedure in adversarial systems may also inhibit truth seeking. Kessler argues that cross-examination results in inaccurate statements by witnesses because it does not allow time for reflection or deliberation, and thus leads to factual misrepresentation, an inability to remember, and outright mistakes. Conversely, the inquisitorial system allows an examiner to record witness statements away from litigating parties, which provides ample time for reflection and correction of mistakes, and permits the reading of a statement when the examination ends.24
It is worth noting that historically, despite the common law’s association with the adversarial tradition , common law courts of equity used a number of procedures to guarantee the secrecy of witness testimonies. In particular, court-appointed examiners, rather than parties, took witness statements in order to maintain secrecy until all witnesses had been examined and the whole of the testimony had been published. Absent extraordinary circumstances, no testimony would be taken after that publication.25 But, this “secrecy” feature disappeared from the common law tradition when the courts of equity were merged with the common law courts and their already well-developed adversarial system.26
Economic Inequality and Truth
Another issue raised by the adversarial system is whether the assumption that parties are equal in front of a court is true in practice, and how such inequality affects the process of truth seeking. As Kessler writes:
[J]ustice often appears to be for sale for the highest bidder—to the litigant who is sufficiently wealthy to deploy costly procedure as a means of overwhelming the adversary. As a result, procedure fails to serve the fundamental goal of truth-seeking—of ensuring that victory goes to the litigant with the valid claims—and at the same time, generates systemic, wealth-based inequities that impair our ability to ensure equal access to justice.27
This is in part due to the historical, wholesale importation of tools of equity from the courts of equity, which had no incentive to use them except for truth seeking, to the adversarial system, where they have been placed in the hands of parties who may have every incentive to use them as a means of obstructing the truth and generating costs.28
Managerial Judging: A Push Toward Inquisitorial Practice?
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
Harmonization of Legal Traditions
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.
ALI/UNIDROIT Principles of Transnational Civil Procedure
There are fundamental principles of civil procedure that transcend the differences between the system of continental law and that of common law. The ALI/UNIDROIT Principles of Transnational Civil Procedure, albeit a non-binding instrument, form the basis of harmonized rules of procedure across jurisdictions and legal traditions: “Their purpose is to propose a model of universal procedure that follows the essential elements of due process of law.”36 In this respect, they reflect the minimum in terms of values of justice that a functioning civil justice system should display.