When we talk about Justice it comes to our mind that it is a way of compensating the aggrieved and punishing the wrongdoer in the ways which are deemed suitable according to the established law and the cultural norms of a society. In primitive times, tribes, settlements, or communities had different ways to exercise justice but all of them relied on judges or juries to seek justice. However, modern world has seen two types of legal systems:
1- Adversarial &
2- Inquisitorial legal system
The role of public prosecutors may differ depending on the legal tradition adopted in a particular country. These two types of legal traditions dominate the nature of investigation and adjudication around the world. Common law countries like Pakistan use an adversarial system to determine facts in the adjudication process. Whereas countries prevailed with civil law use the latter in this regard. First, let us assimilate the concept of common and civil law.
A common law system is based on the concept of judicial precedent. Judges take an active role in shaping the law, since the decisions of courts are used as precedents for future cases. Moreover, common law systems have laws that are created by legislators, it is up to judges to rely on precedents set by previous courts to interpret those laws and apply them to individual cases. The Supreme court of USA, through Marbury v. Madison case has drawn the power to strike down laws that were passed by legislators if those laws are deemed unconstitutional. Other examples of common law countries are USA, UK, Canada, Pakistan, India.
Civil law systems, on the other hand, place less emphasis on precedents than they do on the codification of the law. Civil law systems rely on written statutes and other legal codes that are constantly updated and which establish legal procedures, punishments, and what can and cannot be brought before a court. Countries which practice this system include China, Japan, France, Spain, Germany.
Coming towards adversarial system in which the prosecution and defence compete against each other, and the judge serves as a referee to ensure fairness to the accused. Such system assumes that the best way to get to the truth of a matter is through a competitive process to determine the facts and application of the law accurately.
On the other hand, the inquisitorial system is associated with civil law legal systems, and it has existed for many centuries. It is characterized by extensive pre-trial investigation and interrogations with the objective to avoid bringing an innocent person to trial. The inquisitorial process can be described as an official inquiry to ascertain the truth, whereas the adversarial system uses a competitive process between prosecution and defence to determine the facts.
To clinch the main idea in the right shape it is to say that the inquisitorial process grants more power to the judge who oversees the process, whereas the judge in the adversarial system serves more as an arbiter between claims of the prosecution and defence.
- Cricket at Crossroads - 18 July 2020
- Is the debate on climate change outdated? Shall we worry? - 28 June 2020
- What’s left for India in today’s Afghanistan - 1 May 2020