法律教育网

法律英语

2019瑞达法考客观题学习包

考试内容 报名条件 报名时间 报名方法

成绩查询 考试时间 分 数 线 授予资格

您的位置:法律教育网 > 法律英语 > 英文法规 > 正文

The Adversary System in the American Judicial Process

2016-02-15 12:09  来源:   纠错

The law of procedure is the body of rules that governs or provides the frame-work of the judicial process. The judicial process, in turn, guides the operation of courts in the determination of legal controversies, or, as a legal scholar defines it, the judicial process is the decision by the court of controversies between individuals (or between an individual and the State)by rational and not merely personal considerations supposedly based on law and justice.1 These definitions are terribly inadequate, but they may serve our purpose if we understand from them the following points;(1)The judicial process deals not with abstract questions or hypothetical situations but with actual controversies between real parties;(2)These controversies are such that the community will direct its collective force to their resolution;(3)This resolution proceeds not arbitrarily but according to some standards of general application;(4)These standards are applied in a proceeding that follows some fixed lines set out by a system of rules known as procedure.2

The rules of procedure are to the litigating lawyer regulatory and enabling legislation:3 They tell or attempt to tell him what the lawyer may and may not do, and they afford the means by which the lawyer can bring about, or attempt to bring about, the results sought.

A distinctive element of the American procedure far resolving legal contro?versies is the adversary system, which is the characteristic form of trial procedure in common law countries, in civil as well as criminal cases. Its essential feature is that a decision is made by judge, or judge with jury, who finds the facts and ap?plies the law from submissions made by partisan advocates on behalf of the parties.4 In this system of trial procedure, the responsibility for beginning suit, for shaping the issues, and for producing evidence rests almost entirely upon the par?ties. The court takes almost no active part. It does not do its own investigating. It rarely even asks a question. Most often it is only responsible for guiding the proceeding according to certain procedural rules and for making decisions on ques?tions of law that arise. This system is to be contrasted with what is generally called the inquisitorial system, which is used in countries of the civil law tradition such as France and Germany. In the inquisitorial system of trial, the judge ap?plies the law and finds the facts by his own active investigation and inquiries at trial.

Under the adversary system, the scope of the lawyer's power and responsi?bility is wide. It is the lawyer who makes the initial and usually final decisions as to choice of court, size of claim, nature of claim stated, parties, extent and kind of pre-trial investigation, mode of trial (whether jury or non-jury), settlement offers, extent and kind of proofs, style of presentation and argument, and, with?in limits, speed and vigor of presentation. The trials are largely produced and di?rected by the lawyers. They supply the actors and the script, through the wit?nesses called and the testimony elicited by direct and cross examination. Judges are called on to intervene only occasionally and then briefly, to ensure that all the procedural safeguards of due process5 are met and essential fairness is achieved. They rule on the admissibility of evidence, but this is a negative function of keep?ing out unreliable evidence rather than an affirmative one of providing the facts upon which a case is determined.6

The reasons for the prevalence of the adversary system are manifold, but four are certainly among the most important: (1) It is believed that a truer deci?sion will be reached as the result of a contest directed by interested parties.7 An interested party naturally will be most effective in seeking, discovering, and pre?senting the materials which will reveal the strength of his own case and the weak?ness of his adversary's case; (2) The parties, who after all are the persons princi?pally interested in the resolution of the controversy, should bear the major burden of the time, energy and costs required; (3) Although impartial investigation may be better when no final decision need be reached, setting up sides makes easier the type of yes-or-no decision that is thought to be necessary in a lawsuit;8 (4)

Since resort to law has replaced resort to force that characterized primitive ages, the human instinct to do battle is better satisfied by a means of settling disputes that are very much in the hands of the parties.

Contrasted with the methods of scientific or historical research, this system of finding answers to legal controversies seems sometimes unsatisfactory. When one reflects on the fact that under the adversary system victory often turns on fac?tors other than the true merits of the case, there is reason to be skeptical about it.9 Critics of the adversary system point out that it tends to reduce litigation to a costly game, in which the lawyers become the principal players and the outcome will turn on their skills rather than the justice or true merits of the case. In recent times there has been a trend toward increasing the affirmative or active functions of the court that reflects the larger trend away from the “sporting” or “game” theory of litigation. Nonetheless, it cannot be questioned that in the United States the primary responsibility and control over almost all phases of the judicial process continue to reside in the parties. Full understanding of the American legal procedure will require our constant attention to the existence of the adversary sys?tem as well as critical analysis of its shortcomings.

There is but one test of a good system of procedure: Does it tend to the just and efficient determination of legal controversies? In this connection we must un?derstand one thing: Despite the fact that this unit is only an introduction to the American legal system, we are not to assume that our function here is simply to digest uncritically what we learn from this unit. It is a part of our learning pro?cess to examine, “to wash in cynical acid,” each rule, each form, each principle we learn.10 But while doing so; keep in mind that many, diverse, and complex are the aspects of both justice and efficiency.

责任编辑:仪

特别推荐

地图
法律教育网官方微信

法律教育网微信公众号向您推荐考试资讯、辅导资料、考试教材、历年真题、法律常识、法律法规等资讯,只有你想不到,没有我们做不到!详情>>

1、凡本网注明“来源:法律教育网”的所有作品,版权均属法律教育网所有,未经本网授权不得转载、链接、转贴或以其他方式使用;已经本网授权的,应在授权范围内使用,且必须注明“来源:法律教育网”。违反上述声明者,本网将追究其法律责任。

2、本网部分资料为网上搜集转载,均尽力标明作者和出处。对于本网刊载作品涉及版权等问题的,请作者与本网站联系,本网站核实确认后会尽快予以处理。

本网转载之作品,并不意味着认同该作品的观点或真实性。如其他媒体、网站或个人转载使用,请与著作权人联系,并自负法律责任。

3、本网站欢迎积极投稿